[Title 10 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2011 Edition]
[From the U.S. Government Printing Office]



[[Page 1]]

          
          
Title 10


          Part 500 to End

                         Revised as of January 1, 2011


          Energy
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of January 1, 2011
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register
                    A Special Edition of the Federal Register

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 10:
          Chapter II--Department of Energy (Continued)               3
          Chapter III--Department of Energy                        317
          Chapter X--Department of Energy (General Provisions)     739
          Chapter XIII--Nuclear Waste Technical Review Board      1013
          Chapter XVII--Defense Nuclear Facilities Safety 
          Board                                                   1031
          Chapter XVIII--Northeast Interstate Low-Level 
          Radioactive Waste Commission                            1063
  Finding Aids:
      Table of CFR Titles and Chapters........................    1071
      Alphabetical List of Agencies Appearing in the CFR......    1091
      List of CFR Sections Affected...........................    1101

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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  10 CFR 500.1 refers 
                       to title 10, part 500, 
                       section 1.

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

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

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    To determine whether a Code volume has been amended since its 
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OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

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Many agencies have begun publishing numerous OMB control numbers as 
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OBSOLETE PROVISIONS

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``[RESERVED]'' TERMINOLOGY

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This material, like any other properly issued regulation, has the force 
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    What is a proper incorporation by reference? The Director of the 
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this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.

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    The Federal Register Index is issued monthly in cumulative form. 
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the revision dates of the 50 CFR titles.

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    January 1, 2011.







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                               THIS TITLE

    Title 10--Energy is composed of four volumes. The parts in these 
volumes are arranged in the following order: Parts 1-50, 51-199, 200-499 
and part 500-end. The first and second volumes containing parts 1-199 
are comprised of chapter I--Nuclear Regulatory Commission. The third and 
fourth volumes containing part 200-end are comprised of chapters II, III 
and X--Department of Energy, chapter XIII--Nuclear Waste Technical 
Review Board, and chapter XVII--Defense Nuclear Facilities Safety Board. 
The contents of these volumes represent all current regulations codified 
under this title of the CFR as of January 1, 2011.

    For this volume, Michele Bugenhagen was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.

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                            TITLE 10--ENERGY




                  (This book contains part 500 to end)

  --------------------------------------------------------------------
                                                                    Part

chapter ii--Department of Energy (Continued)................         500

chapter iii--Department of Energy...........................         706

chapter x--Department of Energy (General Provisions)........        1000

chapter xiii--Nuclear Waste Technical Review Board..........        1303

chapter xvii--Defense Nuclear Facilities Safety Board.......        1703

chapter xviii--Northeast Interstate Low-level Radioactive 
  Waste Commission..........................................        1800

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              CHAPTER II--DEPARTMENT OF ENERGY (CONTINUED)




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

                      SUBCHAPTER E--ALTERNATE FUELS
Part                                                                Page
500             Definitions.................................           5
501             Administrative procedures and sanctions.....          13
503             New facilities..............................          38
504             Existing powerplants........................          57
508

[Reserved]

516

[Reserved]

     SUBCHAPTER G--NATURAL GAS (ECONOMIC REGULATORY ADMINISTRATION)
580             Curtailment priorities for essential 
                    agricultural uses.......................          66
590             Administrative procedures with respect to 
                    the import and export of natural gas....          67
                  SUBCHAPTER H--ASSISTANCE REGULATIONS
600             Financial assistance rules..................          82
601             New restrictions on lobbying................         189
602             Epidemiology and other health studies 
                    financial assistance program............         200
603             Technology investment agreements............         208
605             The Office of Energy Research Financial 
                    Assistance Program......................         241
609             Loan guarantees for projects that employ 
                    innovative technologies.................         252
611             Advanced technology vehicles manufacturer 
                    assistance program......................         270
                     SUBCHAPTER I--SALES REGULATION
622             Contractual provisions......................         281
624             Contract clauses............................         281
625             Price competitive sale of Strategic 
                    Petroleum Reserve petroleum.............         282

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626             Procedures for acquisition of petroleum for 
                    the Strategic Petroleum Reserve.........         311

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                      SUBCHAPTER E_ALTERNATE FUELS


PART 500_DEFINITIONS--Table of Contents



Sec.
500.1 Purpose and scope.
500.2 General definitions.
500.3 Electric regions--electric region groupings for reliability 
          measurements under the Powerplant and Industrial Fuel Use Act 
          of 1978.

    Authority: Department of Energy Organization Act, Pub. L. 95-91, 91 
Stat. 565 (42 U.S.C. Sec. 7101 et seq.); Powerplant and Industrial Fuel 
Use Act of 1978, Pub. L. 95-620, 92 Stat. 3289 (42 U.S.C. 8301 et seq.); 
Energy Security Act, Pub. L.96-294, 94 Stat. 611 (42 U.S.C. 8701 et 
seq.); E.O. 1209, 42 FR 46267, September 15, 1977.

    Source: 46 FR 59884, Dec. 7, 1981, unless otherwise noted.

(OMB Control No.: 1903-0075. See 46 FR 63209, Dec. 31, 1981.)



Sec. 500.1  Purpose and scope.

    Unless otherwise expressly provided or the context clearly indicates 
otherwise, this section defines the terms used in these regulations. The 
use of the male gender is to include female; the use of singular to 
include plural.



Sec. 500.2  General definitions.

    For purposes of this part and parts 501-507 term(s):
    Act means Powerplant and Industrial Fuel Use Act of 1978, 42 U.S.C. 
8301 et seq.
    Action means a prohibition by rule or order, in accordance with 
sections 301(b) and (c) of FUA; any order granting or denying an 
exemption in accordance with sections 211, 212, 311 and 312 of FUA; a 
modification or rescission of any such order, or rule; an 
interpretation; a notice of violation; a remedial order; an interpretive 
ruling; or a rulemaking undertaken by DOE.
    Affiliate, when used in relation to person, means another person who 
controls, is controlled by, or is under common control, with such 
person.
    Aggrieved, for purposes of administrative proceedings, describes and 
means a person (with an interest sought to be protected under FUA) who 
is adversely affected by an action proposed or undertaken by DOE.
    Air pollution control agency means any of the following:
    (1) A single State agency designated as the official State air 
pollution control agency;
    (2) An agency established by two or more States and having 
substantial powers or duties pertaining to the prevention and control of 
air pollution;
    (3) A city, county, or other local government health authority or, 
in the case of any city, county, or other local unit of government in 
which there is an agency other than the health authority charged with 
responsibility for enforcing ordinances or laws relating to the 
prevention and control of air pollution, such other agency; or
    (4) An agency or two or more municipalities located in the same 
State or in different States and having substantial powers or duties 
pertaining to the prevention and control of air pollution.
    Alternate fuel means electricity or any fuel, other than natural gas 
or petroleum. The term includes, but is not limited to :
    (1) Coal;
    (2) Solar energy;
    (3) Petroleum coke; shale oil; uranium; biomass, tar sands, oil-
impregnated diatomaceous earth; municipal, industrial, or agricultural 
wastes; wood; and renewable and geothermal energy sources (For purposes 
of this paragraph (3), the term industrial does not include 
refineries.);
    (4) Liquid, solid or gaseous waste by-products of refinery or 
industrial operations which are commercially unmarketable, either by 
reason of quality or quantity. (For purposes of this paragraph (4), the 
term waste by-product is defined as an unavoidable by-product of the 
industrial or refinery operation.) A waste by-product of a refinery or 
industrial operation is commercially unmarketable if it meets the 
criteria listed in the definition of ``commercial unmarketability,'' set 
forth below;
    (5) Any fuel derived from an alternate fuel; and
    (6) Waste gases from industrial operations. (For purposes of this 
subsection, the term industrial does not include refineries.)

[[Page 6]]

    Applicable environmental requirements includes:
    (1) Any standard, limitation, or other requirement established by or 
pursuant to Federal or State law (including any final order of any 
Federal or State Court) applicable to emissions of environmental 
pollutants (including air and water pollutants) or disposal of solid 
waste residues resulting from the use of coal or other alternate fuels, 
natural gas, or petroleum as a primary energy source or from the 
operation of pollution control equipment in connection with such use, 
taking into account any variance of law granted or issued in accordance 
with Federal law or in accordance with State law to the extent 
consistent with Federal law; and
    (2) Any other standard, limitation, or other requirement established 
by, or pursuant to, the Clean Air Act, the Federal Water Pollution 
Control Act, the Solid Waste Disposal Act, the Resource Conservation and 
Recovery Act of 1976, or the National Environmental Policy Act of 1969.
    Base load powerplant means a powerplant, the electrical generation 
of which in kilowatt hours exceeds, for any 12-calendar-month period, 
such powerplant's design capacity multiplied by 3,500 hours.
    Boiler means a closed vessel in which water is heated electrically 
or by the combustion of a fuel to produce steam of one percent or more 
quality.
    Btu means British thermal unit.
    Capability to use alternate fuel, for the purposes of Title II 
prohibitions relating to construction of new powerplants, means the 
powerplant to be constructed:
    (1) Has sufficient inherent design characteristics to permit the 
addition of equipment (including all necessary pollution devices) 
necessary to render such electric powerplant capable of using coal or 
another alternate fuel as its primary energy source; and
    (2) Is not physically, structurally, or technologically precluded 
from using coal or another alternate fuel as its primary energy source.
    Capability to use coal or another alternate fuel shall not be 
interpreted to require any such powerplant to be immediately able to use 
coal or another alternate fuel as its primary energy source on its 
initial day of operation. In addition, the owner or operator of a 
baseload powerplant need not have adequate on-site space for either a 
coal gasifier or any facilities for handling coal or related fuels.
    Certification means a document, signed by an official of the owner 
or operator, notarized, and submitted to OFE, which declares that a new 
powerplant will have the ``capability to use alternate fuel'' (as 
defined herein).
    Certifying powerplant means an existing powerplant whose owner or 
operator seeks to obtain a prohibition order against the use of natural 
gas or petroleum either totally or in a mixture with coal or an 
alternate fuel by filing a certification as to both the technical 
capability and financial feasibility of conversion to coal or another 
alternate fuel pursuant to section 301 of FUA, as amended.
    Clean Air Act means the Clean Air Act, 42 U.S.C. 7401 et seq. 
(1970), as amended by Public Law 93-319, 88 Stat. 246, and Public Law 
95-91, 91 Stat. 685.
    Coal means anthracite, bituminous and sub-bituminous coal, lignite, 
and any fuel derivative thereof.
    Cogeneration facility means an electric powerplant that produces:
    (1) Electric power; and
    (2) Any other form of useful energy (such as steam, gas or heat) 
that is, or will be used, for industrial, commercial, or space heating 
purposes. In addition, for purposes of this definition, electricity 
generated by the cogeneration facility must constitute more than five 
(5) percent and less than ninety (90) percent of the useful energy 
output of the facility.

    Note: Any cogeneration facility selling or exchanging less than 
fifty percent (50%) of the facility's generated electricity is 
considered an industrial cogenerator and is exempt from the fuel use 
prohibitions of FUA.

    Combined cycle unit means an electric power generating unit that 
consists of a combination of one or more combustion turbine units and 
one or more steam turbine units with a substantial portion of the 
required energy input of the steam turbine unit(s) provided by the 
exhaust gas from the combustion turbine unit(s).
    Substantial amounts of supplemental firing for a steam turbine or 
waste heat

[[Page 7]]

boiler to improve thermal efficiency will not affect a unit's 
classification as a combined cycle unit.
    Combustion turbine means a unit that is a rotary engine driven by a 
gas under pressure that is created by the combustion of any fuel.
    Commercial unmarketability as used in the definitions of ``alternate 
fuel,'' ``natural gas'' and ``petroleum'' shall be determined as 
follows:
    (1) A waste by-product of industrial or refinery operations is 
commercially unmarketable by reason of:
    (i) Quality, where the cost of processing (limited to upgrading the 
waste by-product to commercial quality), storing, and distributing the 
waste by-product would not be covered by reasonably expected revenues 
from its sale;
    (ii) Quantity, where the cost of aggregating the waste by-product 
into commercial quantities through storing and distributing the waste 
by-product would not be covered by reasonably expected revenues from its 
sale.
    (2) A fuel will not be classified as ``natural gas'' when it is 
commercially unmarketable by reason of:
    (i) Quality, where the cost of producing, upgrading to commercial 
quality, storing, and distributing the fuel would not be covered by 
reasonably expected revenues from its sale; or
    (ii) Quantity, where the quantities of the fuel are so small that 
the revenues to be reasonably expected from its sale would not cover the 
cost of its production, distribution or storage.
    (3) Costs associated with upgrading, storing, distributing, and 
aggregating a by-product or other fuel (to determine if such fuel is 
natural gas) may properly include a reasonable rate of return on any 
capital investment required to overcome the problems posed by the 
quality or quantity of a fuel because the return on investment is a 
normal aspect of any investment decision. A firm may account for this 
reasonable rate of return by using its customary discount rate for an 
investment of similar risk.
    (4) As part of any consideration of the rate of return on 
investment, the cost of replacing the Btu's lost if the by-product or 
other fuel were upgraded and sold instead of used as a fuel may be taken 
into consideration. The actual expense that would result from burning a 
replacement fuel in lieu of the by-product or other fuel in question may 
therefore be considered. The costs associated with using a replacement 
fuel are indirect costs that result from upgrading and selling the fuel, 
instead of burning it. These indirect costs as well as the direct costs 
associated with the upgrading, storing, distributing, and aggregating of 
by-products or other fuel may be considered in any assessment of 
commercial unmarketability.
    Conference means an informal meeting incident to any proceeding, 
between DOE and any interested person.
    Construction means substantial physical activity at the unit site 
and includes more than clearance of a site or installation of foundation 
pilings.
    Costs means total costs, both operating and capital, incurred over 
the estimated remaining useful life of an electric powerplant, 
discounted to the present, pursuant to rules established in parts 503 
and 504 of these regulations.
    DEOA means the Department of Energy Organization Act (Pub. L. 95-91) 
(42 U.S.C. 7101 et seq.) as implemented by Executive Order 12009 (42 FR 
46267, September 15, 1977).
    Design capability defined in section 103(a)(7) of FUA, shall be 
determined as follows:
    (1) Boiler and associated generator turbines. The design fuel heat 
input rate of a steam-electric generating unit (Btu/hr) shall be the 
product of the generator's nameplate rating, measured in kilowatts, and 
3412 (Btu/kWh), divided by the overall boiler-turbine-generator unit 
design efficiency (decimal); or if the generator's nameplate does not 
have a rating measured in kilowatts, the product of the generator's 
kilovolt-amperes nameplate rating, and the power factor nameplate 
rating; and 3412 (Btu/kWh), divided by the boiler turbine-generator 
unit's design efficiency (decimal). (The number 3412 converts kilowatt-
hours (absolute) into Btu's (mean).)
    (2) Combustion turbine and associated generator. The design fuel 
heat input rate of a combustion turbine (Btu/hr) shall be the product of 
its nameplate rating, measured in kilowatts, and 3412

[[Page 8]]

(Btu/kWh), divided by the combustion turbine-generator unit's design 
efficiency (decimal), adjusted for peaking service at an ambient 
temperature of 59 degrees Fahrenheit (15 degrees Celsius) at the unit's 
elevation. (The number 3412 converts kilowatt-hours (absolute) into 
Btu's (mean).)
    (3) Combined cycle unit. The design fuel heat input rate of a 
combined cycle unit (Btu/hr) shall be the summation of the product of 
its generator's nameplate rating, measured in kilowatts, and 3412 (Btu/
kWh), divided by the overall combustion turbine-generator unit's 
efficiency (decimal), adjusted for peaking service at an ambient 
temperature of 59 degrees Fahrenheit (15 degrees Celsius) and at the 
unit's evaluation, plus the product of the maximum fuel heat input to 
any supplemental heat recovery steam generator/boiler in gallons or 
pounds per hour and the fuel's heat content. If the generator's 
nameplate does not have a rating measured in kilowatts, the product of 
the generator's kilowatt-amperes nameplate rating and power factor 
nameplate rating must be substituted for kilowatts. (The number 3412 
converts kilowatt-hours (absolute) into Btu's (mean).)
    Design capacity of a powerplant pursuant to section 103(a)(18) of 
FUA, is determined according to 18 CFR 287.101.
    DOE or the Department means the United States Department of Energy, 
as defined in sections 201 and 301(a) of the DEOA, including the 
Secretary of Energy or his designee.
    Duly authorized representative means a person who is authorized to 
appear before DOE in connection with a proceeding on behalf of a person 
interested in or aggrieved by that proceeding. Such appearance may 
include the submission of applications, petitions, requests, statements, 
memoranda of law, other documents, or of a personal appearance, oral 
communication, or any other participation in a proceeding.
    Electing powerplant means an existing powerplant, which (1) has been 
issued a proposed prohibition order under former section 301 (b) or (c) 
of FUA prior to August 13, 1981, the date of enactment of the Omnibus 
Budget Reconciliation Act of 1981, Public Law 97-35 (OBRA); and (2) 
files an election to continue the current prohibition order proceeding 
under provisions of the former section 301 of FUA, rather than under 
amended section 301 of FUA. \1\ Under the election provisions, an 
existing powerplant which has an order pending against it under section 
2 of the Energy Supply and Environmental Coordination Act of 1974, as 
amended, 15 U.S.C. 791 et seq. (ESECA), as of August 13, 1981, may also 
elect to continue the current proceeding under section 2 of ESECA. 
Electing powerplants under ESECA are not included in the FUA definition 
of ``electing powerplant''. Relevant regulations governing ESECA 
proceedings are found at 10 CFR part 303 and 305. These elections must 
have been filed with DOE by November 30, 1981 in the case of FUA orders 
and by January 14, 1982 in the case of ESECA orders.
---------------------------------------------------------------------------

    \1\ The election provisions are published at 46 FR 48118 (October 1, 
1981) and will not be codified in the Code of Federal Regulations.
---------------------------------------------------------------------------

    Electric generating unit does not include:
    (1) Any electric generating unit subject to the licensing 
jurisdiction of the Nuclear Regulatory Commission (NRC); and
    (2) Any cogeneration facility from which less than 50 percent of the 
net annual electric power generation is sold or exchanged for resale. 
Excluded from `sold or exchanged for resale' are sales or exchanges to 
or with an electric utility for resale by the utility to the 
cogenerating supplier, and sales or exchanges among owners of the 
cogeneration facility.

    Note: For purposes of subparagraph (1) of this definition, OFE will 
not consider any unit located at a site subject to NRC's licensing 
authority to be jurisdictional for purposes of FUA.

    Electric powerplant means any stationary electric generating unit 
consisting of (a) a boiler, (b) a gas turbine, or (c) a combined cycle 
unit which employs a generator to produce electric power for purposes of 
sale or exchange and has the design capabilityf consuming any fuel (or 
mixture thereof) at a fuel heat input rate of 100 million Btu's per hour 
or greater. In accordance with section 103(a)(7)(C) of FUA, the 
Secretary has determined that it is

[[Page 9]]

appropriate to exclude from this definition any unit which has a design 
capability to consume any fuel (including any mixture thereof) that does 
not equal or exceed 100 million Btu's per hour.
    Electric Region is as defined in Sec. 500.3 of this part.
    Electric utility means any person, including any affiliate, or 
Federal agency, which sells electric power.
    Emission offset means emission reductions as defined by EPA's 
regulations set forth at 40 CFR part 51, appendix S.
    EPA means the United States Environmental Protection Agency.
    ESECA means the Energy Supply and Environmental Coordination Act of 
1974, as amended, 15 U.S.C. 791 et seq.
    Existing powerplant means any powerplant other than a new 
powerplant.
    Federal Water Pollution Control Act means the Federal Water 
Pollution Control Act, 33 U.S.C. 1251 et seq., as amended.
    FERC means the Federal Energy Regulatory Commission.
    Firm means a parent company and the consolidated or unconsolidated 
entities (if any) that it directly or indirectly controls.
    Fluidized bed combustion means combustion of fuel in connection with 
a bed of inert material, such as limestone or dolomite, that is held in 
a fluid-like state by the means of air or other gases being passed 
through such materials.
    FTC means the Federal Trade Commission.
    FUA means the Powerplant and Industrial Fuel Use Act of 1978, 42 
U.S.C. 8301 et seq.
    Fuel Use Act means FUA.
    Fuel use order means a directive issued by OFE pursuant to Sec. 
501.167 of these regulations.
    Gas turbine means ``combustion turbine''.
    High-priority user, for purposes of subsection 312(j) of FUA, means 
any residential user of natural gas, or any commercial user whose 
consumption of natural gas on peak day is less than 50 MCF.
    Internal combustion engine means a heat engine in which the 
combustion that generates the heat takes place inside the engine proper.
    Interpretation means a written statement issued by the DOE General 
Counsel or his delegate, in response to a written request, that applies 
the regulations, rulings, and other precedents previously issued by the 
DOE to the particular facts of a prospective or completed act or 
transaction.
    Mcf means 1,000 cubic feet of natural gas.
    Mixture, when used in relation to fuels used in a unit, means a 
mixture of petroleum or natural gas and an alternate fuel, or a 
combination of such fuels, used simultaneously or alternately in such 
unit.
    Natural gas means any fuel consisting in whole or in part of natural 
gas, including components of natural gas such as methane and ethane; 
liquid petroleum gas; synthetic gas derived from petroleum or natural 
gas liquids; or any mixture of natural gas and synthetic gas. Natural 
gas does not include:
    (1) Gaseous waste by-products or waste gas specifically designated 
as an alternate fuel in Sec. 500.2 of these regulations;
    (2) Natural gas which is commercially unmarketable, as defined in 
these rules;
    (3) Natural gas produced by the user from a well, the maximum 
efficient production rate of which is less than 250 million Btu's per 
day. For purposes of paragraph (3) of this definition:
    (i) Produced by the user means:
    (A) All gas produced by the well, when such gas is delivered for use 
in the user's facility through a gas delivery, gathering, or 
transportation system which could not deliver such gas to any other 
user; or
    (B) Only that amount which represents the user's net working 
(mineral) interest in the gas produced from such well, where such gas is 
delivered for use in the user's facility through a gas delivery, 
gathering, or transportation system which could deliver such gas to any 
other user.
    (ii) Maximum efficient production rate (MEPR) means that rate at 
which production of natural gas may be sustained without damage to the 
reservoir or the rate which may be sustained without damage to the 
ultimate recovery of oil or gas through the well.

[[Page 10]]

    (4) Occluded methane in coal seams within the meaning of section 
107(c)(3) of the Natural Gas Policy Act of 1978 (NGPA);
    (5) The following gas from wells spudded prior to January 1, 1990:
    (i) Gas produced from geopressurized brine, within the meaning of 
section 107(c)(2) of the NGPA;
    (ii) Gas produced from Devonian shale, within the meaning of section 
107(c)(4) of the NGPA;
    (iii) Gas produced from tight sands, as designated by the FERC in 
accordance with section 107(c)(5) of the NGPA; and
    (iv) Other gases designated by FERC as ``high-cost natural gas'' in 
accordance with section 107(c)(5) of the NGPA, except as specifically 
designated as ``natural gas'' by OFE;
    (6)(i) Synthetic gas derived from coal or other alternate fuel, the 
heat content of which is less than 600 Btu's per cubic foot at 14.73 
pounds per square inch (absolute) and 60 [deg]F; and
    (ii) Commingled natural gas and synthetic gas derived from coal 
consumed as part of the necessary process of a major fuel burning 
installation used in the iron and steel industry, so long as the average 
annual Btu heat content of the commingled stream as consumed within a 
major fuel burning installation does not exceed 600 Btu's per cubic foot 
at 14.73 pounds per square inch (absolute) and 60 [deg]F;
    (7) Mixtures of natural gas and synthetic gas derived from alternate 
fuels for which the person proposing to use the gas certifies to OFE 
that:
    (i) He owns, or is entitled to receive at the point of manufacture, 
synthetic gas derived from alternate fuels;
    (ii) He delivers, or arranges for the delivery of such synthetic gas 
to a pipeline which by transport or displacement is capable of 
delivering such synthetic gas, mixed with natural gas, to facilities 
owned by the user;
    (iii) The total annual Btu content of the synthetic gas delivered to 
a pipeline is equal to or greater than the total annual Btu content of 
the natural gas delivered to the facilities owned by the user, plus the 
approximate total annual Btu content of any natural gas consumed or lost 
in transportation; and
    (iv) All necessary permits, licenses, or approvals from appropriate 
Federal, State, and local agencies (including Indian tribes) have been 
obtained for construction and operation of the facilities for the 
manufacture of the synthetic gas involved, except that for purposes of 
the prohibition under section 201(2) of FUA against powerplants being 
constructed without the capability of using coal or another alternate 
fuel, only permits, licenses, and approvals for the construction of such 
synthetic gas facilities shall be required under this subparagraph, to 
be certified and documented; and
    (8) A mixture of natural gas and an alternate fuel when such mixture 
is deliberately created for purposes of (i) Complying with a prohibition 
order issued pursuant to section 301(c) of the Act, or (ii) Qualifying 
for a fuel mixtures exemption under the Act, provided such exemption is 
granted.
    NEPA means the National Environmental Policy Act of 1969, as 
amended, 42 U.S.C. 4321 et seq.
    New electric powerplant means any electric powerplant: (1) That was 
not classified as existing under part 515 of this subchapter; (2) That 
was reconstructed, as defined in these rules under the definition of 
``reconstruction''; or (3) For which construction was begun after 
November 9, 1978.
    NGPA means the Natural Gas Policy Act of 1978, 15 U.S.C. 3301 et 
seq.
    Nonboiler means any powerplant which is not a boiler and consists of 
either a combustion turbine unit or combined cycle unit.
    Notice of violation means a written statement issued to a person by 
DOE that states one or more alleged violations of the provisions of 
these regulations, any order issued pursuant thereto, or the Act.
    OBRA means the Omnibus Budget Reconciliation Act of 1981, Public Law 
97-35.
    OFE means the Office of Fossil Energy of OFE.
    Offset means ``emission offset''.
    Order means a final disposition, other than the issuance of a rule, 
issued by DOE pursuant to these regulations or the Act.
    Person means any:

[[Page 11]]

    (1) Individual, corporation, company, partnership, association, 
firm, institution, society, trust, joint venture, or joint stock 
company;
    (2) Any State; or
    (3) Any Federal, State, or local agency or instrumentality 
(including any municipality) thereof.
    Petroleum means crude oil and products derived from crude oil, other 
than:
    (1) Petroleum products specifically designated as alternate fuels 
pursuant to these regulations;
    (2) Synthetic gas derived from crude oil;
    (3) Liquid petroleum gas;
    (4) Petroleum coke or waste gases from industrial operations; and
    (5) A liquid, solid, or gaseous waste by-product of refinery 
operations which is commercially unmarketable under the definition of 
``commercial unmarketability'' in these rules.

    Note: For the purposes of this subparagraph, waste by-products do 
not include components (such as butane and propane) that can be 
extracted from the waste by-product by reasonable further processing of 
the waste by-product at the refinery, nor do they include final products 
that use the waste by-product as a blend stock at the refinery.

    Petition means a formal request for any action including an 
exemption submitted to DOE under these regulations.
    Powerplant means ``electric powerplant.''
    Product or process requirements means that product or process for 
which the use of an alternate fuel is not technically feasible due to 
the necessity to maintain satisfactory control of product quality and 
for which the substitution of steam is not technically feasible due to 
process requirements.
    Primary energy source means the fuel or fuels used by any existing 
or new electric powerplant except:
    (1) Minimum amounts of fuel required for unit ignition, startup, 
testing, flame stabilization, and control uses. OFE has determined that, 
unless need for a greater amount is demonstrated, twenty-five (25) 
percent of the total annual Btu heat input of a unit shall be 
automatically excluded under this paragraph.
    (2) Minimum amounts of fuel required to alleviate or prevent:
    (i) Unanticipated equipment outages as defined in Sec. 501.191 of 
these regulations; and
    (ii) Emergencies directly affecting the public health, safety, or 
welfare that would result from electric power outages as defined in 
Sec. 501.191 of these regulations.

    Note: (1) Any fuel excluded under the provisions of paragraph (1) of 
this definition is in addition to any fuel authorized to be used in any 
order granting a fuel mixtures exemption under parts 503 and 504 of 
these rules. The exclusion of fuel under paragraph (1), together with 
the authority for such additive treatment, shall apply to any 
jurisdictional facility, regardless of whether or not it had received an 
order granting an exemption as of the date these rules are promulgated.

    (2) If an auxiliary unit to an electric powerplant consumes fuel 
only for the auxiliary functions of unit ignition, startup, testing, 
flame stabilization, and other control uses, its use of minimum amounts 
of natural gas or petroleum is not prohibited by FUA. The measurement of 
such minimum amounts of fuel is discussed in Associated Electric 
Cooperative, et al., Interpretation 1980-42 [45 FR 82572, Dec. 15, 
1980].
    Prohibition order means:
    (1) An order issued pursuant to section 301(b) of the Act that 
prohibits a powerplant from burning natural gas or petroleum as its 
primary energy source; or
    (2) An order issued pursuant to section 301(c) of the Act that 
prohibits excessive use of natural gas or petroleum in mixtures burned 
by a powerplant as its primary energy source.
    Rated capacity for the purpose of determining reduction in the rated 
capacity of an existing powerplant, means design capacity, or, at the 
election of the facility owner or operator, the actual maximum sustained 
energy output per unit of time that could be produced, measured in power 
output, expressed in kilowatts, per unit of time.
    Reconstruction means the following:
    (1) Except as provided in paragraph (2) of this definition, 
reconstruction shall be found to have taken place whenever the capital 
expenditures for refurbishment or modification of an electric powerplant 
on a cumulative basis for the current calendar year and

[[Page 12]]

preceding calendar year, are equal to or greater than fifty (50) percent 
of the capital costs of an equivalent replacement unit of the same 
capacity, capable of burning the same fuels.
    (2) Notwithstanding paragraph (1) of this definition, reconstruction 
shall not be found to have taken place whenever:
    (i) The capital expenditures for refurbishment or modification of an 
electric powerplant, on a cumulative basis for the current calendar year 
and preceding calendar year, are not greater than eighty (80) percent of 
the capital costs of an equivalent replacement unit of the same 
capacity, capable of burning the same fuels and the unit, as refurbished 
or modified, will not have a greater fuel consumption capability than 
the unit it replaces;
    (ii) The unit being refurbished or modified was destroyed, in whole 
or substantial part, in a plant accident and the unit, as refurbished or 
modified, will not have a greater fuel consumption capability than the 
unit it replaces; or
    (iii) Refurbishment or modification of the unit is undertaken 
primarily for the purpose of increasing fuel burning efficiency of the 
unit, and will not result in:
    (A) Increased remaining useful plant life, or
    (B) Increased total annual fuel consumption.
    Resource Conservation and Recovery Act of 1976 means the Resource 
Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et seq.
    SIP means State Implementation Plan pursuant to section 10 of the 
Clean Air Act.
    Site limitation means a specific physical limitation associated with 
a particular site that relates to the use of an alternate fuel as a 
primary energy source for the powerplant such as:
    (1) Inaccessibility to alternate fuels;
    (2) Lack of transportation facilities for alternate fuels;
    (3) Lack of adequate land for facilities for the handling, use and 
storage of alternate fuels;
    (4) Lack of adequate land or facilities for the control or disposal 
of wastes from such powerplant, including lack of land for pollution 
control equipment or devices necessary to assure compliance with 
applicable environmental requirements; and
    (5) Lack of an adequate and reliable supply of water, including 
water for use in compliance with applicable environmental requirements.
    Solid Waste Disposal Act means the Solid Waste Disposal Act, 42 
U.S.C. 6901 et seq., as amended.
    State regulatory authority means any State agency that acts as 
ratemaking or power supply authority with respect to the sale of 
electricity by any State regulated electric utility.
    Synthetic fuel means any fuel derived from an alternate fuel and 
does not include any fuels derived from petroleum or natural gas.
    Wetlands areas means, for purposes of section 103(a)(12) of the Act, 
those geographical areas designated as wetlands areas by State or local 
environmental regulatory authorities, or in the absence of any such 
geographic designation, those areas that are inundated by surface or 
ground water with frequency sufficient to support, and under normal 
circumstances does or would support, a prevalence of vegetation or 
aquatic life that requires saturated, seasonably saturated, or tidally 
saturated soil conditions for growth or reproduction.

(Department of Energy Organization Act, Pub. L. 95-91, 42 U.S.C. 7101 et 
seq.; Energy Supply and Environmental Coordination Act of 1974, Pub. L. 
93-319, as amended by Pub. L. 94-163, Pub. L. 95-70, and Pub. L. 95-620, 
(15 U.S.C. 719 et seq.); Powerplant and Industrial Fuel Use Act of 1978, 
Pub. L. 95-620, as amended by Pub. L. 97-35 (42 U.S.C. 8301 et seq.); 
Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35)

[46 FR 59884, Dec. 7, 1981, as amended at 47 FR 15313, 15314, Apr. 9, 
1982; 47 FR 17041, Apr. 21, 1982; 47 FR 29210, July 6, 1982; 47 FR 
34972, Aug. 12, 1982; 54 FR 52889, Dec. 22, 1989]



Sec. 500.3  Electric regions--electric region groupings for reliability measurements under the Powerplant and Industrial Fuel Use Act of 1978.

    (a) The following is a list of electric regions for use with regard 
to the Act. The regions are identified by FERC Power Supply Areas 
(PSA's) as authorized by section 202(a) of the Federal Power Act except 
where noted. They will be reviewed annually by ERA.

[[Page 13]]

Each grouping meets one or more of the following criteria:
    (1) Existing centrally dispatched pools and hourly power brokers;
    (2) Systems with joint planning and construction agreements;
    (3) Systems with coordination agreements in the areas of:
    (i) Generation reserve and system reliability criteria;
    (ii) Capacity and energy exchange policies;
    (iii) Maintenance scheduling; and
    (iv) Emergency procedures for dealing with capacity or fuel 
shortages; or
    (4) Systems within the same National Electric Reliability Council 
(NERC) region with historical coordination policies.
    (b) The PSA's referred to in the definition of electric regions in 
paragraph (a) of this section were first defined by the Federal Power 
Commission in 1936. The most recent reference to them is given in the 
1970 National Power Survey, Vol. 1, Pg. 1-3-16. In cases where a 
petitioner finds an ambiguity in a regional assignment, he shall consult 
with DOE for an official determination.

    Electric Region Groupings and FERC PSA's:
    1. Allegheny Power System (APS)--7, except Duquesne Light Company.
    2. American Electric Power System (AEP)--entire AEP System.
    3. New England Planning Pool (NEPOOL)--1, 2.
    4. New York Planning Pool (NYPP)--3, 4.
    5. Pennsylvania--New Jersey--Maryland interconnection (PJM)--5, 6.
    6. Commonwealth Edison Company--14.
    7. Florida Coordination Group (FCG)--24.
    8. Middle South Utilities--25.
    9. Southern Company--22, 23.
    10. Gulf States Group--35.
    11. Tennessee Valley Authority (TVA)--20.
    12. Virginia--Carolina Group (VACAR)--18, 21.
    13. Central Area Power Coordination Group (CAPCO)--Cleveland 
Electric Illuminating Company, Toledo Edison Company, Ohio Edison 
Company, Duquesne Light Company.
    14. Cincinnati, Columbus, Dayton Group (CCD)--Cincinnati Gas and 
Electric Company, Columbus and Southern Ohio Electric Company, Dayton 
Power and Light Company.
    15. Kentucky Group--19.
    16. Indiana Group--Indiana Utilities except AEP.
    17. Illinois--Missouri Group (ILLMO)--15, 40.
    18. Michigan Electric Coordinated Systems (MECS)--11.
    19. Wisconsin--Upper Michigan Group (WUMS)--13.
    20. Mid-Continent Area Power Pool (MAAP)--16, 17, 26, 27, 28.
    21. Missouri--Kansas Group (MOKAN)--24, 29.
    22. Oklahoma Group--33, 36.
    23. Texas Interconnected Systems (TIS)--37, 38.
    24. Rocky Mountain Power Pool (RMPP)--31, 32.
    25. Northwest Power Pool (NWPP)--30, 42, 43, 44, 45.
    26. Arizona--New Mexico Group--39, 48 within Arizona. in Nevada and 
California.
    27. Southern California--Nevada--47, 48.
    28. Northern California--Nevada--46.
    29. Alaska (non-interconnected systems to be considered 
separately)--49.
    30. Idaho--Utah Group--41.



PART 501_ADMINISTRATIVE PROCEDURES AND SANCTIONS--Table of Contents



                      Subpart A_General Provisions

Sec.
501.1 Purpose and scope.
501.2 Prepetition conference.
501.3 Petitions.
501.4-501.5 [Reserved]
501.6 Service.
501.7 General filing requirements.
501.8 [Reserved]
501.9 Effective date of orders or rules.
501.10 Order of precedence.
501.11 Address for filing documents.
501.12 Public files.
501.13 Appeal.
501.14 Notice to Environmental Protection Agency.

Subpart B [Reserved]

   Subpart C_Written Comments, Public Hearings and Conferences During 
                       Administrative Proceedings

501.30 Purpose and scope.
501.31 Written comments.
501.32 Conferences (other than prepetition conferences).
501.33 Request for a public hearing.
501.34 Public hearing.
501.35 Public file.

     Subpart D_Subpoenas, Special Report Orders, Oaths and Witnesses

501.40 Issuance.

                 Subpart E_Prohibition Rules and Orders

501.50 Policy.

[[Page 14]]

501.51 Prohibitions by order--electing powerplants.
501.52 Prohibitions by order--certifying powerplants.
501.53-501.56 [Reserved]

                 Subpart F_Exemptions and Certifications

501.60 Purpose and scope.
501.61 Certification contents.
501.62 Petition contents.
501.63 Notice of the commencement of an administrative proceeding on an 
          exemption petition.
501.64 Publication of notice of availability of tentative staff 
          analysis.
501.65 Publication of notice of availability of draft EIS.
501.66 OFE evaluation of the record, decision and order.
501.67 Petition redesignations.
501.68 Decision and order.
501.69 Judicial review.

  Subpart G_Requests for Modification or Rescission of a Rule or Order

501.100 Purpose and scope.
501.101 Proceedings to modify or rescind a rule or order.
501.102 OFE evaluation of the record, decision and order for 
          modification or rescission of a rule or order.
501.103 OFE decision.

                       Subpart H_Requests for Stay

501.120 Purpose and scope.
501.121 Filing and notice of petitions for stays.
501.122 Contents.
501.123 Evaluation of the record.
501.124 Decision and order.

                  Subpart I_Requests for Interpretation

501.130 Purpose and scope.
501.131 Filing a request for interpretation.
501.132 Contents of a request for interpretation.
501.133 DOE evaluation.
501.134 Issuance and effect of interpretations.

                            Subpart J_Rulings

501.140 Purpose and scope.
501.141 Criteria for issuance.
501.142 Modification or rescission.
501.143 Comments.

                          Subpart K_Enforcement

501.160 Purpose and scope.
501.161 Filing a complaint.
501.162 Contents of a complaint.
501.163 OFE evaluation.
501.164 Decision to initiate enforcement proceedings.
501.165 Commencement of enforcement proceedings.
501.166 Hearings and conferences.
501.167 Fuel use order.

  Subpart L_Investigations, Violations, Sanctions and Judicial Actions

501.180 Investigations.
501.181 Sanctions.
501.182 Injunctions.
501.183 Citizen suits.

      Subpart M_Use of Natural Gas or Petroleum for Emergency and 
                 Unanticipated Equipment Outage Purposes

501.190 Purpose and scope.
501.191 Use of natural gas or petroleum for certain unanticipated 
          equipment outages and emergencies defined in section 
          103(a)(15)(B) of the act.
501.192 [Reserved]

    Authority: 42 U.S.C. 7101 et seq.; 42 U.S.C. 8301 et seq.; 42 U.S.C. 
8701 et seq.; E.O. 12009, 42 FR 46267; 28 U.S.C. 2461 note.

    Source: 46 FR 59889, Dec. 7, 1981, unless otherwise noted.

(OMB Control No.: 1903-0075. See 46 FR 63209, Dec. 31, 1981.)



                      Subpart A_General Provisions



Sec. 501.1  Purpose and scope.

    Part 501 establishes the procedures to be used in proceedings before 
DOE under parts 500-508 of this chapter except as otherwise provided.



Sec. 501.2  Prepetition conference.

    (a) Owners and operators of powerplants may request a prepetition 
conference with OFE for the purpose of discussing the applicability of 
10 CFR parts 503 and 504 to their situations and the scope of any 
exemption or other petition that OFE would accept as adequate for filing 
purposes.
    (b) The owner or operator who requests a prepetition conference may 
personally represent himself or may designate a representative to appear 
on his behalf. A prepetition conference or a request for a prepetition 
conference does not commence a proceeding before OFE.
    (c) If OFE agrees to waive any filing requirements under Sec. 
501.3(d), a memorandum of record stating this fact will

[[Page 15]]

be furnished to the potential petitioner within thirty (30) days after 
the conference. Copies of all applicable memoranda of record must be 
attached to any subsequently-filed petition.
    (d) A record of all prepetition conferences will be included in the 
public file. OFE may provide for the taking of a formal transcript of 
the conference and the transcript will be included in the public file.

[46 FR 59889, Dec. 7, 1981, as amended at 54 FR 52891, Dec. 22, 1989]



Sec. 501.3  Petitions.

    (a) Filing of petitions. Petitions for exemptions are to be filed 
with OFE at the address given in Sec. 501.11.
    (b) Acceptance of petition. (1) Upon acceptance (as distinguished 
from filing) of the petition, OFE shall publish in the Federal Register 
a Notice of Acceptance of Petition or, in the case of an exemption by 
certification, a Notice of Acceptance and Availability of Certification, 
signifying that an exemption proceeding has commenced.
    (2) OFE will notify each petitioner in writing within thirty (30) 
days of receipt of the petition that it has been accepted or rejected 
and, if rejected, the reasons therefor.
    (3) A petition, including supporting documents, will be accepted if 
the information contained appears to be sufficient to support an OFE 
determination. Additional information may be requested during the course 
of the proceeding, and failure to respond to such a request may 
ultimately result in denial of the requested exemption.
    (4) Acceptance of petition does not constitute a determination that 
the requested exemption will be granted.
    (c) Rejection of petition. (1) OFE will reject a petition if it does 
not meet the information of certification requirements established for 
the relevant exemptions under parts 503 and 504 of this chapter. A 
written explanation of the reasons for rejection will be furnished with 
notification of the rejection.
    (2) A timely-filed petition rejected as inadequate will not be 
rendered untimely if resubmitted in amended form within ninety (90) days 
of the date of rejection.
    (3) OFE will, within thirty (30) days of receipt of a petition that 
is found to be incomplete due to minor deficiencies, notify the 
petitioner of the deficiencies and allow ninety (90) days from the date 
of notification to cure the specified deficiencies. The failure to cure 
the deficiencies during this time may result in denial of the requested 
exemption.
    (d) Waiver of filing requirements. Upon its own motion or at the 
request of a petitioner, OFE may waive some or all of the regulatory 
requirements if the purposes of FUA would be best achieved by doing so.



Sec. Sec. 501.4-501.5  [Reserved]



Sec. 501.6  Service.

    (a) DOE will serve all orders, notices interpretations or other 
documents that it is required to serve, personally or by mail, unless 
otherwise provided in these regulations.
    (b) DOE will consider service upon a petitioner's duly authorized 
representative to be service upon the petitioner.
    (c) Service by mail is effective upon mailing.

[54 FR 52891, Dec. 22, 1989]



Sec. 501.7  General filing requirements.

    Except as indicated otherwise, all documents required or permitted 
to be filed with OFE or DOE in connection with a proceeding under parts 
503 and 504 shall be filed in accordance with the following provisions:
    (a) Filing of documents. (1) Documents including, but not limited 
to, applications, requests, complaints, petitions (including petitions 
for exemption), and other documents submitted in connection therewith, 
filed with OFE are considered to be filed upon receipt.
    (2) Notwithstanding the provisions of paragraph (a)(1) of this 
section, an application for modification or rescission in accordance 
with subpart G of this part, a reply to a notice of violation, a 
response to a denial of a claim of confidentiality, or a comment 
submitted in connection with any proceeding transmitted by registered or 
certified mail and addressed to the appropriate office is considered to 
be filed upon mailing.
    (3) Timeliness. Documents are to be filed with the appropriate DOE 
or OFE office listed in Sec. 501.11. Documents that

[[Page 16]]

are to be considered filed upon receipt under paragraph (a)(1) of this 
section and that are received after regular business hours are deemed 
filed on the next regular business day. Regular business hours are 8 
a.m. to 4:30 p.m.
    (4) Computation of time. In computing any period of time prescribed 
or allowed by FUA, these regulations or by an order, the day of the act, 
event, or default from which the designated period of time begins to run 
is not to be included. The last day of the period so computed is to be 
included unless it is a Saturday, Sunday, or Federal legal holiday in 
which event the period runs until the end of the next day that is 
neither a Saturday, Sunday, nor a Federal legal holiday.
    (5) Additional time after service by mail. Whenever a person is 
required to perform an act, to cease and desist therefrom, or to 
initiate a proceeding under this part within a prescribed period of time 
and the order, notice, interpretation or other document is served by 
mail, three (3) days shall be added to the prescribed period.
    (6) Extension of time. When a document is required to be filed 
within a prescribed time, an extension of time to file may be granted 
upon good cause shown.
    (7) Signing. All applications, petitions, requests, comments, and 
other documents that are required to be signed, shall be signed by the 
person filing the document or a duly authorized representative. Any 
application, petition, request, complaint, or other document filed by a 
duly authorized representative shall contain a statement by such person 
certifying that he is a duly authorized representative, unless an OFE 
form otherwise requires. (A false certification is unlawful under the 
provisions of 18 U.S.C. 1001 (1970).)
    (8) Labeling. An application, petition, or other request for action 
by DOE or OFE should be clearly labeled according to the nature of the 
action involved, e.g., ``Petition for Temporary Exemption;'' ``Petition 
for Extension (or Renewal) of Temporary Exemption,'' both on the 
document and on the outside of the envelope in which the document is 
transmitted.
    (9) Obligation to supply information. A person who files an 
application, petition, complaint, or other request for action is under a 
continuing obligation during the proceeding to provide DOE or OFE with 
any new or newly discovered information that is relevant to that 
proceeding. Such information includes, but is not limited to, 
information regarding any other application, petition, complaint, or 
request for action that is subsequently filed by that person with any 
DOE office or OFE office.
    (10) The same or related matters. In filing a petition or other 
document requesting OFE action, the person must state whether, to the 
best of his knowledge, the same or a related issue, act or transaction 
has been or presently is being considered or investigated by a DOE 
office, other Federal agency, department or instrumentality, or a State 
or municipal agency.
    (11) Request for confidential treatment. (i) If any person filing a 
document with DOE or OFE claims that some or all of the information 
contained in the document is exempt from the mandatory public disclosure 
requirements of the Freedom of Information Act (5 U.S.C. 552); is 
information referred to in 18 U.S.C. 1905; or is otherwise exempt by law 
from public disclosure, and if such person requests DOE or OFE not to 
disclose such information, such person shall make a filing in accordance 
with paragraph (b)(2) of this section. The person shall indicate in the 
original document that it is confidential or contains confidential 
information and may file a statement specifying the justification for 
non-disclosure of the information for which confidential treatment is 
claimed. If the person states that the information comes within the 
exception in 5 U.S.C. 552(b)(4) for trade secrets and commercial or 
financial information, such person shall include a statement specifying 
why such information is privileged or confidential. If a document is not 
so filed, OFE may assume that there is no objection to public disclosure 
of the document in its entirety, unless the person subsequently files a 
claim of confidentiality prior to public disclosure of the document.
    (ii) DOE or OFE retains the right to make its own determination with 
regard to any claim of confidentiality.

[[Page 17]]

Notice of the decision by DOE or OFE to deny such claim, in whole or in 
part, and an opportunity to respond or take other appropriate action to 
avoid release shall be given to a person claiming confidentiality of 
information no less than seven (7) days prior to its public disclosure.
    (iii) The above provisions in paragraphs (a)(11) (i) and (ii) of 
this section do not apply to information submitted on OFE forms that 
contain their own instructions concerning the treatment of confidential 
information.
    (12) Separate applications, petitions or requests. Each application, 
petition, or request for DOE or OFE action shall be submitted as a 
separate document, even if the applications, petitions, or requests deal 
with the same or a related issue, act, or transaction, or are submitted 
in connection with the same proceeding.
    (b) Number of documents to be filed. (1) A petitioner must file an 
executed original and fourteen (14) copies of all exemption requests 
submitted to DOE. For certification requests, an original and three (3) 
copies shall be submitted.
    (2) Where the petitioner requests confidential treatment of some or 
all of the information submitted, an original and eleven (11) copies of 
the confidential document and three (3) copies of the document with 
confidential material deleted must be filed.

[46 FR 59889, Dec. 7, 1981, as amended at 47 FR 15314, Apr. 9, 1982; 54 
FR 52891, Dec. 22, 1989]



Sec. 501.8  [Reserved]



Sec. 501.9  Effective date of orders or rules.

    (a) When OFE issues a rule or order imposing a prohibition or 
granting an exemption (or permit) under FUA, the rule or order will be 
effective sixty (60) days after publication in the Federal Register, 
unless it is stayed, modified, suspended or rescinded.
    (b) If the appropriate State regulatory authority has not approved a 
powerplant for which a petition has been filed, such exemption, to the 
extent it applies to the prohibition under section 201 of FUA against 
construction without the capability of using coal or another alternate 
fuel, shall not take effect until all approvals required by such State 
regulatory authority which relate to construction have been obtained.

[54 FR 52891, Dec. 22, 1989]



Sec. 501.10  Order of precedence.

    If there is any conflict or inconsistency between the provisions of 
this part and any other provisions or parts of this chapter, except for 
general procedures which are unique to part 515 of this chapter, the 
provisions of this part will control respect to procedure.

[54 FR 52891, Dec. 22, 1989]



Sec. 501.11  Address for filing documents.

    Send all petitions, self-certifications and written communications 
to the following address: Office of Fossil Energy, Office of Fuels 
Programs, Coal and Electricity Division, Mail Code FE-52, 1000 
Independence Avenue, SW., Washington, DC 20585.

[54 FR 52891, Dec. 22, 1989]



Sec. 501.12  Public files.

    DOE will make available at the Freedom of Information reading room, 
room 1E190, 1000 Independence Avenue SW., Washington, DC for public 
inspection and copying any information required by statute and any 
information that OFE determines should be made available to the public.

[54 FR 52891, Dec. 22, 1989]



Sec. 501.13  Appeal.

    There is no administrative appeal of any final administrative action 
to which this part applies.



Sec. 501.14  Notice to Environmental Protection Agency.

    A copy of any proposed rule or order that imposes a prohibition, 
order that imposes a prohibition, or a petition for an exemption or 
permit, shall be transmitted for comments, if any, to the Administrator 
and the appropriate Regional Administrator of the Environmental 
Protection Agency (EPA). The Administrator of EPA shall be given the 
same opportunity to comment and question as is given other interested 
persons.

[54 FR 52891, Dec. 22, 1989]

[[Page 18]]

Subpart B [Reserved]



   Subpart C_Written Comments, Public Hearings and Conferences During 
                       Administrative Proceedings



Sec. 501.30  Purpose and scope.

    This subpart establishes the procedures for requests for and the 
conduct of public hearings; for submission of written comments; and for 
requests for and conduct of conferences pursuant to an administrative 
proceeding before OFE. Hearings shall be convened at the request of any 
interested person, in accordance with section 701(d) of FUA, and shall 
be held at a time and place to be decided by the Presiding Officer.



Sec. 501.31  Written comments.

    (a) New facilities. Except as may be provided elsewhere in these 
regulations, OFE shall provide a period of at least forty-five (45) 
days, commencing with publication of the Notice of Acceptance of 
Petition, of in the case of certification exemptions, Notice of 
Acceptance and availability of Certification, in the Federal Register in 
accordance with Sec. 501.63(a), for submission of written comments 
concerning a petition for an exemption. Written comments shall be made 
in accordance with Sec. 501.7.
    (b) Existing facilities. Except as may be provided elsewhere in 
these regulations, OFE shall provide a period of at least 45 days for 
submission of written comments concerning a proposed prohibition rule or 
order or a petition for a permit. In the case of a proposed prohibition 
rule or order issued to an existing electing powerplant, OFE shall also 
provide for a period of at least 45 days for submission of written 
comments concerning a Tentative Staff Analysis. This period shall 
commence on the day after publication of the Notice of Availability of 
the Tentative Staff Analysis in the Federal Register. In the case of 
prohibition order proceedings for certifying powerplants under section 
301 of FUA, as amended, OFE shall provide a period of at least 45 days, 
beginning the day after the Notice of Acceptance of certification is 
published, for submission of written comments concerning the 
certification and OFE's proposed prohibition order, and requests for 
public hearings. Prohibition order proceedings under section 301, as 
amended by OBRA, will have only one period of 45 days, since no 
Tentative Staff Analysis will be prepared. The comment period may be 
extended by OFE in accordance with Sec. 501.7. See Sec. 501.52(b) of 
this part for further information with respect to the comment period. 
Written comments shall be filed in accordance with Sec. 501.7.

(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42 
U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of 1978, 
Pub. L. 95-620, 92 Stat. 3289 (42 U.S.C. 8301 et seq.); Omnibus Budget 
Reconciliation Act of 1981 (Pub. L. 97-35); E.O. 12009, 42 FR 46267, 
Sept. 15, 1977)

[46 FR 59889, Dec. 7, 1981, as amended at 47 FR 50848, Nov. 10, 1982; 54 
FR 52892, Dec. 22, 1989]



Sec. 501.32  Conferences (other than prepetition conferences).

    (a) At any time following commencement of a proceeding before OFE, 
an interested person may request a conference with the staff of OFE to 
discuss a petition, permit or any other issue pending before OFE. The 
request for a conference should generally be in writing and should 
indicate the subjects to be covered and should describe the requester's 
interest in the proceeding. Conferences held after the commencement of 
an administrative proceeding before OFE shall be convened at the 
discretion of OFE or the Presiding Officer.
    (b) When OFE convenes a conference in accordance with this section, 
any person invited may present views as to the issue or issues involved. 
Documentary evidence may be submitted at the conference and such 
evidence, to the extent that it is not deemed to be confidential, will 
be included in the administrative record. OFE will not normally have a 
transcript of the conference prepared but may do so at its discretion.
    (c) Because a conference is solely for the exchange of views 
incident to a proceeding, there will be no formal report or findings by 
OFE unless OFE in its discretion determines that the preparation of a 
report or findings would be

[[Page 19]]

advisable. OFE will, however, place in the public file a record of any 
conference.



Sec. 501.33  Request for a public hearing.

    (a) New facilities. In the case of a petition for an exemption under 
title II of FUA, any interested person may submit a written request that 
OFE convene a public hearing in accordance with section 701 of FUA no 
later than forty-five (45) days after publication of either the Notice 
of Acceptance of a petition, or in the case of a certification 
exemption, the publication of the Notice of Acceptance of Certification. 
This time period may be extended at the discretion of OFE.
    (b) Existing powerplants. In the case of a petition for an exemption 
from a prohibition imposed by a final rule or order issued by OFE to an 
electing powerplant under former sections of title III of FUA or a 
petition for a permit under Sec. 504.1, any interested person may 
submit a written request that OFE convene a public hearing in accordance 
with section 701 of FUA within 45 days after the notice of the filing of 
a petition is published in the Federal Register. In the case of a 
proposed prohibition rule or order issued to an electing powerplant 
under former section 301, the 45 day period in which to request a public 
hearing shall commence upon the publication of the Notice of 
Availability of the Tentative Staff Analysis. In the case of a proposed 
prohibition order to be issued to certifying powerplants under section 
301 of FUA, as amended, the 45 day period in which to request a public 
hearing commences upon publication of the Notice of Acceptance of 
Certification. This time limit may be extended at the discretion of OFE 
in accordance with Sec. 501.7.
    (c) Contents of request. A request for a public hearing must be in 
writing and must include a description of the requesting party's 
interest in the proceeding and a statement of the issues involved. The 
request should, to the extent possible, identify any witnesses that are 
to be called, summarize the anticipated testimony to be given at the 
hearing, and outline questions that are to be posed.

(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42 
U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of 1978, 
Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus Budget 
Reconciliation Act of 1981 (Pub. L. 97-35); E.O. 12009, 42 FR 46267, 
Sept. 15, 1977)

[46 FR 59889, Dec. 7, 1981, as amended at 47 FR 50848, Nov. 10, 1982; 54 
FR 52892, Dec. 22, 1989]



Sec. 501.34  Public hearing.

    (a) A public hearing under this subsection is for the purpose of 
insuring that all issues are fully and properly developed, but is not a 
formal adjudicatory hearing subject to the provisions of 5 U.S.C. 554 
and 556.
    (b) Opportunity to be heard at a public hearing. (1) Any interested 
person, may request, and OFE will provide, an opportunity to present 
oral or written data, views and arguments at a public hearing on any 
proposed prohibition rule or order, or on any petition for an exemption 
or permit. An interested person may file a request to be listed as a 
party to a hearing on the service list prepared by the Presiding Officer 
pursuant to Sec. 501.34(d) of this part.
    (2) Participants at the public hearing will have an opportunity to 
present oral or written data, views and arguments.
    (3) A request for a public hearing may be withdrawn by the requestor 
at any time. If other persons have requested to participate as parties 
in the public hearing, OFE may cancel the hearing only if all parties 
agree to cancellation. OFE will give notice, whenever possible, in the 
Federal Register of the cancellation of any hearings for which there has 
been prior notice.
    (c) Presiding Officer. OFE will appoint a Presiding Officer to 
conduct the public hearing.
    (d) Powers of the Presiding Officer. The Presiding Officer is 
responsible for orderly conduct of the hearing and for certification of 
the record of the public hearing. The Presiding Officer will not prepare 
any recommended findings, conclusions, or any other recommendations for 
disposition of a particular

[[Page 20]]

case, except those of a procedural nature. The Presiding Officer has, 
but is not limited to the following powers:
    (1) Administer oaths, affirmations and protective orders;
    (2) Issue administrative subpoenas and rule on motions to modify or 
withdraw subpoenas that he has issued;
    (3) Rule on questions as to relevance and materiality of evidence;
    (4) Regulate the course of the public hearing;
    (5) Hold conferences for the simplification of issues by consent of 
the parties;
    (6) Require submission of evidence in writing where appropriate;
    (7) Establish service lists;
    (8) Dispose of procedural requests and similar matters; and
    (9) Take other actions authorized by these rules.

The Presiding Officer may also limit the number of witnesses to be 
presented by any party and may impose reasonable time limits for 
testimony. The Presiding Officer shall establish and maintain a service 
list that contains the names and addresses of all parties to the OFE 
proceeding. At the time the Presiding Officer certifies the record, he 
will provide the staff of OFE with an index of the issues addressed in 
the record.
    (e) Notice. OFE will convene a public hearing only after publishing 
a notice in the Federal Register that states the time, place and nature 
of the public hearing.
    (f) Opportunity to question at the public hearing. At any public 
hearing requested pursuant to paragraph (b) of this section, with 
respect to disputed issues of material fact, OFE will provide any 
interested person an opportunity to question:
    (1) Other interested persons who make oral presentations;
    (2) Employees and contractors of the United States who have made 
written or oral presentations or who have participated in the 
development of the proposed rule or order or in the consideration of the 
petition for an exemption or permit; and
    (3) Experts and consultants who have provided information to any 
person who makes an oral presentation and which is contained in or 
referred to in such presentation.
    (g) OFE encourages persons who wish to question Government witnesses 
to submit their questions at least ten (10) days in advance of the 
hearing.
    (h) The Presiding Officer will allow questions by any interested 
person to be asked of those making presentations or submitting 
information, data, analyses or views at the hearing. The Presiding 
Officer may restrict questioning if he determines that such questioning 
is duplicative or is not likely to result in a timely and effective 
resolution of issues pending in the administrative proceeding for which 
the hearing is being conducted.
    (i) The Presiding Officer or OFE may exercise discretion to control 
a hearing by denying, temporarily or permanently, the privilege of 
participating in a particular OFE hearing if OFE finds, for example, 
that a person:
    (1) Has knowingly made false or misleading statements, either orally 
or in writing;
    (2) Has knowingly filed false affidavits or other writings;
    (3) Lacks the specific authority to represent the person seeking an 
OFE action; or
    (4) Has disrupted or is disrupting a hearing.
    (j) Evidence. (1) The Presiding Officer is responsible for orderly 
submission of information, data, materials, views or other evidence into 
the record of the public hearing. The Presiding Officer may exclude any 
evidence that is irrelevant, immaterial or unduly repetitious. Judicial 
rules of evidence do not apply.
    (2) Documentary material must be of a size consistent with ease of 
handling, transportation and filing, and a reasonable number of copies 
should be made available at the public hearing for the use of interested 
persons. An original and fourteen (14) copies shall be furnished to the 
Presiding Officer and one copy to each party listed on the service list. 
Large exhibits that are used during the hearing must be provided on no 
larger than 11\1/2\x14 legal size paper if they 
are to be submitted into the hearing record.
    (k) Hearing record. OFE will have a verbatim transcript made of the 
public

[[Page 21]]

hearing. The hearing record shall remain open for a period of fourteen 
(14) days following the public hearing, unless extended by OFE, during 
which time the participants at the hearing may submit additional written 
statements which will be made part of the administrative record and will 
be served by the Presiding Officer upon those parties listed on the 
service list. OFE may also request additional information, data or 
analysis following the hearing in order to resolve disputed issues in 
the record. If OFE receives or obtains any relevant information or 
evidence that is placed in the record after the close of the public 
hearing or comment period, it will so notify all participants, and allow 
an additional fourteen (14) days for submission of evidence in rebuttal. 
In addition, OFE may, in its discretion, re-open the hearing at the 
request of a party or participant, to permit further rebuttal of 
evidence or statements submitted to OFE and made part of the hearing 
record after the close of the hearing. The transcript, together with any 
written comments submitted in the course of the proceeding, will be made 
part of the record available for public inspection and copying at the 
OFE Public Information Office, as provided in Sec. 501.12.



Sec. 501.35  Public file.

    (a) Contents. The public file shall consist of the rule, order, or 
petition, with supporting data and supplemental information, and all 
data and information submitted by interested persons. Materials which 
are claimed by any party to be exempt from public disclosure under the 
Freedom of Information Act (5 U.S.C. 552) shall be excised from the 
public file provided OFE has made a determination that the material is 
confidential in accordance with Sec. 501.7(a)(11) of this part.
    (b) Availability. The public file shall be available for inspection 
at room 1E190, 1000 Independence Avenue SW., Washington, DC. Photocopies 
may be made available, on request. The charge for such copies shall be 
made in accordance with a written schedule.

[46 FR 59889, Dec. 7, 1981, as amended at 54 FR 52892, Dec. 22, 1989]



     Subpart D_Subpoenas, Special Report Orders, Oaths and Witnesses



Sec. 501.40  Issuance.

    (a) Authority. As authorized by section 711 of FUA and section 645 
of the DEOA, the Administrator, his duly authorized agent or a Presiding 
Officer may, in accordance with 10 CFR 205.8, sign, issue, and serve 
subpoenas; issue special report orders (SRO); administer oaths and 
affirmations; take sworn testimony, compel attendance of and sequester 
witnesses; control the dissemination of any record of testimony taken 
pursuant to this section; and subpoena and reproduce books, papers, 
correspondence, memoranda, contracts, agreements, or other relevant 
records of tangible evidence including, but not limited to, information 
retained in computerized or other automated systems in the possession of 
the subpoenaed person.
    (b) Petition to withdraw or modify. Prior to the time specified for 
compliance in the subpoena or SRO, the person to whom the subpoena or 
SRO is directed may apply for its withdrawal or modification as provided 
in 10 CFR 205.8, except that if the subpoena or SRO is issued by a duly 
appointed Presiding Officer, the request to withdraw or modify must be 
addressed to that Presiding Officer, and its grant or denial will be 
decided by him.



                 Subpart E_Prohibition Rules and Orders



Sec. 501.50  Policy.

    Except in conjunction with a prohibition order requested by the 
intended recipient, OFE shall not propose to prohibit or prohibit by 
rule or order the use of petroleum or natural gas either as a primary 
energy source or in amounts in excess of the minimum amount necessary to 
maintain reliability of operation consistent with reasonable fuel 
efficiency in an existing installation unless and until OFE adopts rules 
establishing regulatory requirements governing the issuance of such 
orders and rules in accordance

[[Page 22]]

with the applicable procedural and substantive requirements of law.

(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42 
U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of 1978, 
Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus Budget 
Reconciliation Act of 1981 (Pub. L. 97-35); E.O. 12009, 42 FR 46267, 
Sept. 15, 1977)

[47 FR 50848, Nov. 10, 1982]



Sec. 501.51  Prohibitions by order--electing powerplants.

    (a) OFE may prohibit by order the use of petroleum or natural gas as 
a primary energy source or in amounts in excess of the minimum amount 
necessary to maintain reliability of operation consistent with 
reasonable fuel efficiency in an electing powerplant, if:
    (1) That facility has not been identified as a member of a category 
subject to a final rule at the time of the issuance of such order; and
    (2) The requirements of Sec. 504.6 have been met.
    (b) Notice of order and public participation. (1) OFE may hold a 
conference with the proposed order recipient prior to issuing the 
proposed order.
    (2) Pursuant to section 701 of FUA, prior to the issuance of a final 
order to an electing powerplant, OFE shall publish a proposed order in 
the Federal Register together with a statement of the reasons for the 
order. In the case of a proposed order that would prohibit the use of 
petroleum or natural gas as a primary energy source, the finding 
required by former section 301(b)(1) of the Act shall be published with 
such proposed order.
    (3) OFE shall provide a period for the submission of written 
comments of at least three months after the date of the proposed order. 
During this period, the recipient of the proposed order and any other 
interested person must submit any evidence that they have determined at 
that time to support their respective positions as to each of the 
findings that OFE is required to make under section 301(b) of the Act. A 
proposed order recipient may submit additional new evidence at any time 
prior to the close of the public comment period which follows 
publication of the Tentative Staff Analysis or prior to the close of the 
record of any public hearing, whichever occurs later. A request by the 
proposed order recipient for an extension of the three-month period may 
be granted at OFE's discretion.
    (4) Subsequent to the end of the comment period, OFE will issue a 
notice of whether OFE intends to proceed with the prohibition order 
proceeding.
    (5) An owner or operator of a facility that may be subject to an 
order may demonstrate prior to issuance of a final prohibition order 
that the facility would qualify for an exemption if the prohibition had 
been established by rule. OFE will not delay the issuance of a final 
prohibition order or stay the effective date of such an order for the 
purpose of determining whether a proposed order recipient qualifies for 
a particular exemption unless the demonstration or qualification is 
submitted prior to or during the second three-month comment period, 
commencing after issuance of a notice of intention to proceed, or unless 
materials submitted after the period (i) could not have been submitted 
during the period through the exercise of due diligence, (ii) address 
material changes in fact or law occurring after the close of the period, 
or (iii) consist of amplification or rebuttal occasioned by the 
subsequent course of the proceeding. A request by the proposed order 
recipient for an extension of this time period may be granted at OFE's 
discretion.
    (6) Subsequent to the end of the second three (3) month period, OFE 
will, if it intends to issue a final prohibition order, prepare and 
issue a Notice of Availability of a Tentative Staff Analysis. Interested 
persons wishing a hearing must request a hearing within forty-five (45) 
day after issuance of the Notice of Availability of the Tentative Staff 
Analysis. During this forty-five (45) days period, interested persons 
may also submit written comments on the Tentative Staff Analysis.
    (7) If a hearing has been requested, OFE shall provide interested 
persons with an opportunity to present oral data, views and arguments at 
a public hearing held in accordance with subpart C of this part. The 
hearing will consider the findings which OFE must make in order to issue 
a final prohibition order and any exemption for which the proposed order 
recipient submitted

[[Page 23]]

its demonstration in accordance with paragraph (b)(5) of this section.
    (8) Upon request by the recipient of the proposed prohibition order, 
the combined public comment periods provided for in this section may be 
reduced to a minimum of forty-five (45) days from the time of 
publication of the proposed order.
    (9) OFE may terminate a prohibition order proceeding at any time 
prior to the date upon which a final order shall become effective. 
Should OFE terminate the proceeding, it will notify the proposed order 
recipient, and publish a notice in the Federal Register.
    (c) Decision to issue a final order. (1) OFE will base its 
determination to issue an order on consideration of the whole record or 
those parts thereof cited by a party and supported by and in accordance 
with reliable, probative and substantial evidence.
    (2) OFE shall include in the final order a written statement of the 
pertinent facts, a statement of the basis upon which the final order is 
issued, a recitation of the conclusions regarding the required findings 
and qualifications for exemptions. The final order shall state the 
effective date of the prohibition contained therein. If it is 
demonstrated that the facility would have been granted a temporary 
exemption, the effective date of the prohibition contained in the final 
order shall be delayed until such time as the temporary exemption would 
have terminated. If it is demonstrated that a facility will need a 
period of time to comply with the final order, the effective date of the 
prohibition contained in the final order may be delayed, in OFE's 
discretion, so as to allow an order recipient to comply with the final 
order.
    (3) OFE will enclose with a copy of the final order, where 
appropriate, a schedule of steps that should be taken by a stated date 
(a compliance schedule) to ensure that the affected facility will be 
able to comply with the prohibitions stated in the order by the 
effective date of the prohibition contained in the final order. The 
compliance schedule may require the affected person to take steps with 
regard to a unit 60 days after service of the final order.
    (4) A copy of the final order and a summary of the basis therefore 
will be published in the Federal Register. The order will become 
effective 60 days after publication in the Federal Register.
    (d) Request for order. (1) A proceeding for issuance of a 
prohibition order to a specific unit may be commenced by OFE, in its 
sole discretion, in response to a request for an order filed by the 
owner or operator of a facility.
    (2) A petition requesting OFE to commence a prohibition order 
proceeding should include the following information for all units to be 
covered by the prohibition order:
    (i) A statement of the reasons the owner or operator is seeking the 
issuance of a prohibition order; and
    (ii) Sufficient information for OFE to make the findings required by 
section 301(b) of FUA.
    (3) If OFE determines to accept the request, OFE shall publish a 
proposed order in the Federal Register together with a statement of the 
reasons for the order.

(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42 
U.S.C. 7101 et seq.); Energy Supply and Environmental Coordination Act 
of 1974; Pub. L. 93-319, as amended by Pub. L. 94-163, Pub. L. 95-70, 
(15 U.S.C. 719 et seq.); Powerplant and Industrial Fuel Use Act of 1978, 
Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus Budget 
Reconciliation Act of 1981, (Pub. L. 97-35); E.O. 12009, 42 FR 46267, 
Sept. 15, 1977)

[46 FR 59889, Dec. 7, 1981, as amended at 47 FR 17042, Apr. 21, 1982; 47 
FR 50848, Nov. 10, 1982; 54 FR 52892, Dec. 22, 1989]



Sec. 501.52  Prohibitions by order--certifying powerplants.

    (a) OFE may prohibit by order the use of petroleum or natural gas as 
a primary energy source or in amounts in excess of the minimum amount 
necessary to maintain reliability of operation consistent with 
maintaining reasonable fuel efficiency in an existing powerplant if the 
owner or operator of the powerplant certifies, and OFE concurs in such 
certification in accordance with the requirements of Sec. Sec. 504.5, 
504.6 and 504.8.
    (b) Notice of order and participation. (1) OFE may hold a conference 
with the

[[Page 24]]

proposed order recipient, at the recipient's election, prior to issuing 
the proposed order. The conference may resolve any questions regarding 
the certification required by section 301 of the Act, as amended, and 
Sec. Sec. 504.5, 504.6, and 504.8, and OFE's review and concurrence 
therein.
    (2) Pursuant to section 701(b) of FUA, prior to the issuance of a 
final order to a certifying powerplant owner or operator, OFE must 
publish in the Federal Register, a proposed prohibition order stating 
the reasons for such order. OFE will review all of the information 
submitted by a proposed order recipient within 60 days after receipt by 
OFE. If the certification is complete, OFE will, within 30 days after 
the end of the 60 day review period, publish in the Federal Register a 
Notice of Acceptance of certification together with a proposed 
prohibition order stating therein the reasons for such order. This 
commences the prohibition order proceeding. If OFE does not believe it 
is able to concur in the certification, OFE shall notify the proposed 
order recipient and shall publish a Notice of Proposed Non-Concurrence 
in the Federal Register within 30 days after the end of the 60 day 
review period. If OFE finds that the certification with compliance 
schedule is incomplete, OFE will notify the proposed prohibition order 
recipient as to the deficiencies, and provide an additional period of 30 
days for the certification to be amended and resubmitted. If a complete 
certification is not submitted within this period, the proceeding shall 
be terminated in accordance with Sec. 501.52(b)(5). OFE will notify the 
proposed order recipient and other parties to the proceeding of the 
termination and publish a notice in the Federal Register. OFE, on its 
own motion, may extend any period of time by publishing a notice to that 
effect in the Federal Register.
    (3) The publication of the Notice of Acceptance or Notice of 
Proposed Non-Concurrence commences a period of 45 days during which 
interested persons may submit written comments or request a public 
hearing. During this period, the recipient of the proposed order and any 
other interested person may submit any evidence that they have available 
relating to the proposed order, the certification or the concurrence 
that OFE must make. A proposed order recipient may submit additional new 
evidence at any time prior to the close of the public comment period 
which follows the commencement of the proceeding or prior to the close 
of the record of any public hearing, whichever occurs later. A request 
for an extension of the 45 day period may be granted at OFE's 
discretion. In the case of a Notice of Acceptance, as set forth in Sec. 
504.9, no final prohibition order can be issued until any necessary 
environmental review pursuant to the National Environmental Policy Act 
of 1969, 42 U.S.C 4321 et seq. (NEPA) has been completed. Upon 
completion of the NEPA review and unless OFE determines on the basis of 
the record of the proceeding that the certification fails to meet the 
requirements of Sec. Sec. 504.5, 504.6, and 504.8, OFE shall publish a 
final prohibition order, together with the information required by 
paragraph (c) of this section. In the case of a Notice of Proposed Non-
Concurrence, at the end of the 45 day comment period, OFE will notify 
the proposed order recipient and parties to the proceeding and publish a 
final Notice of Non-Concurrence in the Federal Register, if OFE 
determines it cannot concur in the certification based upon additional 
information submitted during the proceeding. If, at the end of the 45 
day period, OFE believes it can concur in the certification, OFE will 
notify the proposed order recipient and parties to the proceeding and 
publish a Notice of Acceptance followed by a new 45 day comment period.
    (4) If a hearing has been requested, OFE shall provide interested 
persons with an opportunity to present oral data, views and arguments at 
a public hearing held in accordance with subpart C of this part. The 
hearing may consider, among other matters, the sufficiency of the 
certification of the owner or operator of the powerplant required by 
section 301 of FUA, as amended, and Sec. Sec. 504.5, 504.6, and 504.8 
of these regulations.
    (5) OFE may terminate a prohibition order proceeding at any time 
prior to the date upon which a final prohibition order is issued 
whenever OFE believes,

[[Page 25]]

from any information contained in the record of the proceeding, that the 
certification does not meet the requirements of section 301 of the Act, 
as amended, or Sec. Sec. 504.5, 504.6, and 504.8 of these regulations. 
If OFE terminates the proceeding or publishes a final Notice of Non-
Concurrence, or the proposed order recipient fails to submit a complete 
certification, OFE will notify the proposed order recipient and other 
parties to the proceeding and publish a notice in the Federal Register. 
In such event, the proposed order recipient may submit a new 
certification under any provision of section 301 of the Act, as amended, 
at a later date. Specifically, a Notice of Non-Concurrence under either 
section 301(b) or 301(c) shall not affect a proposed order recipient's 
ability to make a certification under the other subsection.
    (c) Record and decision to issue a final order. (1) OFE will base 
its determination to issue an order on consideration of the whole record 
or those parts thereof cited by a party and supported by and in 
accordance with reliable, probative and substantial evidence.
    (2) OFE shall include in the final order a written statement of the 
basis upon which the final order is issued, and its concurrence in the 
required certification. A copy of the final order and a summary of the 
basis therefor will be published in the Federal Register. While the 
prohibition order is final for purposes of judicial review under section 
702 of FUA, the prohibitions contained in the final order shall not 
become effective for purposes of amendment under section 301(d) of FUA, 
as amended, and Sec. 501.52(d) of these regulations until the effective 
date of the prohibitions stated in the order, or, where the order is 
subject to one or more conditions subsequent listed in the prohibition 
order compliance schedule, until all its conditions are met.
    (d) Amendment to certifications under Sec. Sec. 504.5 and 504.6. 
The proposed prohibition order recipient may amend its compliance 
schedule under Sec. 504.5(d), or its certification under section 301 of 
FUA, as amended, and Sec. Sec. 504.5, 504.6 and 504.8 of these 
regulations in order to take into account changes in relevant facts and 
circumstances at any time prior to the effective date of the 
prohibitions contained in the final prohibition order.
    (e) Rescission of prohibition orders. The rescission or modification 
of final prohibition orders issued to existing electric powerplants will 
be governed by the procedure in Sec. 501.101 of these regulations.

(Approved by the Office of Management and Budget under control number 
1903-0077)

(Department of Energy Organization Act, Pub. L. 95-91, 42 U.S.C. 7101 et 
seq.; Energy Supply and Environmental Coordination Act of 1974, Pub. L. 
93-319, as amended by Pub. L. 94-163, Pub. L. 95-70, and Pub. L. 95-620, 
15 U.S.C. 719 et seq.; Powerplant and Industrial Fuel Use Act of 1978, 
Pub. L. 95-620, as amended by Pub. L. 97-35, 42 U.S.C. 8301 et seq.; 
Omnibus Budget Reconciliation Act of 1981, (Pub. L. 97-35))

[47 FR 17042, Apr. 21, 1982]



Sec. Sec. 501.53-501.56  [Reserved]



                 Subpart F_Exemptions and Certifications



Sec. 501.60  Purpose and scope.

    (a) (1) If the owner or operator plans to construct a new baseload 
powerplant and the unit will not be in compliance with the prohibition 
contained in section 201(a) of FUA, this subpart establishes the 
procedures for filing a petition requesting a temporary or permanent 
exemption under, respectively, sections 211 and 212 of FUA.
    (2) Self-certification alternative. If the owner or operator plans 
to construct a new baseload powerplant not in compliance with the 
prohibitions contained in section 201(a) of FUA, this subpart 
establishes the procedures for the filing of a self-certification under 
section 201(d) of FUA.
    (3) If the petitioner owns, operates or controls a new powerplant, 
this subpart provides the procedures for filing a petition requesting 
extension of a temporary exemption granted under sections 211 or 311 of 
FUA.
    (4) If the petitioner owns, operates or controls a new or existing 
powerplant or MFBI, this subpart provides the procedures for filing a 
petition requesting extension of a temporary exemption granted under 
section 211 or section 311 of FUA.

[[Page 26]]

    (b) If the petition is for an extension of a temporary exemption, 
the petitioner must apply for this extension at least (90) days prior to 
the expiration of the temporary exemption.

(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42 
U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of 1978, 
Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus Budget 
Reconciliation Act of 1981, Pub. L. 97-35; E.O. 12009, 42 FR 46267, 
Sept. 15, 1977)

[46 FR 59889, Dec. 7, 1981, as amended at 47 FR 50849, Nov. 10, 1982; 54 
FR 52892, Dec. 22, 1989]



Sec. 501.61  Certification contents.

    (a) A self-certification filed under section 201(d) of FUA should 
include the following information:
    (1) Owner's name and address.
    (2) Operator's name and address.
    (3) Plant location and address.
    (4) Plant configuration (combined cycle, simple cycle, topping 
cycle, etc.)
    (5) Design capacity in megawatts (MW).
    (6) Fuel(s) to be used by the new facility.
    (7) Name of utility purchasing electricity from the proposed 
facility and percent of total output to be sold.
    (8) Date unit is expected to be placed in service.
    (9) Certification by an officer of the company or his designated 
representative certifying that the proposed facility:
    (i) Has sufficient inherent design characteristics to permit the 
addition of equipment (including all necessary pollution devices) 
necessary to render such electric powerplant capable of using coal or 
another alternate fuel as its primary energy source; and
    (ii) Is not physically, structurally, or technologically precluded 
from using coal or another alternate fuel as its primary energy source.
    (b) A self-certification filed pursuant to Sec. 501.61(a) shall be 
effective to establish compliance with the requirement of section 201(a) 
of FUA as of the date filed.
    (c) OFE will publish a notice in the Federal Register within fifteen 
days reciting that the certification has been filed. Publication of this 
notice does not serve to commence a public comment period.
    (d) OFE will notify the owner or operator within 60 days if 
supporting documentation is needed to verify the certification.

[54 FR 52892, Dec. 22, 1989]



Sec. 501.62  Petition contents.

    (a) A petition for exemption should include the following 
information:
    (1) The name of the petitioner;
    (2) The name and location of the unit for which an exemption is 
being requested;
    (3) The specific exemption(s) being requested; and
    (4) The name, address, and telephone number of the person who can 
supply further information.
    (b) Table of contents. Include only those sections contained in the 
petition.
    (c) Introduction. Include the following:
    (1) Description of the facility under consideration;
    (2) Description of the unit and fuel the petitioner proposes to burn 
in that unit, including the purpose of and need for the unit; and
    (3) Description of the operational requirements for the unit, 
including size (capacity, input and output in millions of Btu's per 
hour), output in terms of product or service to be supplied, fuel 
capability, and operating mode, including capacity factor, utilization 
factor, and fluctuations in the load.
    (d) General requirements. The evidence required under part 503 
subpart B for each exemption(s) for which the petitioner is applying:
    (1) No alternate power supply (Sec. 503.8):
    (2) Use of mixtures (Sec. 503.9);
    (3) Alternative site (Sec. 503.11);
    (4) Compliance Plan (Sec. 503.12);
    (5) Environmental impact analysis (Sec. 503.13);
    (6) Fuels search (Sec. 503.14).
    (e) Specific evidence. Evidence required for each exemption, 
segregated by exemption (part 503 subparts C and D).
    (f) References. (1) Specify the reports, documents, experts, and 
other sources consulted in compiling the petition. Cite these sources in 
accordance with acceptable documentation standards,

[[Page 27]]

and indicate the part of the petition to which they apply. If the source 
is unusual or little known, briefly describe its contents.
    (2) Identify at the end of each section of the petition any 
information or any statement based, in whole or in part, on information 
or principles which, to petitioner's knowledge, represent significant 
innovations to or departures from generally accepted facts or 
principles.
    (g) Appendices. Include in the appendices material which the 
petitioner believes substantiates any analyses fundamental to the 
petition, materials prepared in connection with it, and any other 
documents, studies, or analyses which are believed to be relevant to the 
decision to be made. Also, include in the appendices copies of any forms 
submitted as part of the petition.
    (h) List of preparers. List the names with the qualifications and 
professional credentials of the principal contributors to the 
preparation of the petition. Indicate the sections or subject matters 
for which each principal contributor was responsible.
    (i) Incorporation by reference. Pertinent information may be 
incorporated into the petition by reference when this can be done 
without impeding agency and public review. Referenced materials must be 
specifically identified and their contents briefly described in the 
petition. To incorporate by reference, the material must be submitted 
with the petition, or if previously submitted, the office to which it 
was submitted must be identified in the petition. The petitioner cannot 
incorporate by reference material based on proprietary data not 
available to OFE for review.

(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42 
U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of 1978, 
Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus Budget 
Reconciliation Act of 1981, Pub. L. 97-35; E.O. 12009, 42 FR 46267, 
Sept. 15, 1977)

[46 FR 59889, Dec. 7, 1981, as amended at 47 FR 50849, Nov. 10, 1982]



Sec. 501.63  Notice of the commencement of an administrative proceeding on an exemption petition.

    (a)(1) When a petition is accepted, OFE will publish in the Federal 
Register a Notice of Acceptance, or, in the case of a certification 
exemption, a Notice of Acceptance and Availability of Certification, 
signifying that an exemption proceeding has commenced. The notice will 
include a summary of the exemption petition, and publication will 
commence a public comment period of no less than forty-five (45) days 
during which interested parties may file written comments concerning the 
petition. In the case of a certification exemption, interested persons 
may request a public hearing during this period, pursuant to Sec. 
501.33.
    (2) OFE will notify the appropriate State agency having apparent 
primary authority to permit or regulate the construction or operation of 
a powerplant that an exemption proceeding has commenced and will consult 
with this agency to the maximum extent practicable. Copies of all 
accepted petitions also will be forwarded to EPA, as provided in Sec. 
501.14(a).
    (b) In processing an exemption petition, OFE shall comply with the 
requirements of the National Environmental Policy Act of 1969 (NEPA), 
the Council on Environmental Quality's implementing regulations, and the 
DOE guidelines implementing those regulations (45 FR 20694, Mar. 28, 
1980). Compliance with NEPA may involve the preparation of (1) an 
environmental impact statement (EIS) evaluating the grant or denial of 
an exemption petition, (2) an environmental assessment (EA), or (3) a 
memorandum to the file finding that the grant of the requested petition 
would not be considered a major federal action significantly affecting 
the quality of the human environment. If an EIS is required, OFE will 
publish in the Federal Register a Notice of Intent (NOI) to prepare an 
EIS as soon as practicable after commencement of the proceeding. A 
public meeting may be held pursuant to 40 CFR 1501.7 to solicit comments 
or suggestions on the structure and content of the EIS.

[46 FR 59889, Dec. 7, 1981, as amended at 54 FR 52893, Dec. 22, 1989]

[[Page 28]]



Sec. 501.64  Publication of notice of availability of tentative staff analysis.

    OFE will publish in the Federal Register a Notice of the 
Availability of Tentative Staff Analysis for the noncertification 
temporary public interest exemption, for noncertification environmental 
exemptions, and for a cogeneration exemption based on the public 
interest. OFE will provide a public comment period of at least fourteen 
(14) days from the date of publication during which interested persons 
may make written comments and request a public hearing.



Sec. 501.65  Publication of notice of availability of draft EIS.

    A Notice of Availability of any draft EIS will be published in the 
Federal Register and comments thereon will also be solicited. Interested 
persons may request a hearing on any draft EIS. Such hearing must be 
requested within thirty (30) days of publication of the Notice of 
Availability of the draft EIS.

[54 FR 52893, Dec. 22, 1989]



Sec. 501.66  OFE evaluation of the record, decision and order.

    (a) The administrative record in a proceeding under this part will 
consist of the proposed prohibition order and/or petition and related 
documents, all relevant evidence presented at the public hearing, all 
written comments, and any other information in the possession of OFE and 
made a part of the public record of the proceeding. OFE will base its 
determination to issue a rule or order on consideration of the whole 
record, or those parts thereof cited by a party and supported by 
reliable, probative, and substantial evidence.
    (b) OFE may investigate and corroborate any statement in any 
petition, document, or public comments submitted to it. OFE also may use 
any relevant facts it possesses in its evaluation and may request 
submissions from third persons relevant to the petition or other 
documents. OFE also may request additional information, data, or 
analyses following a public hearing, if any, if this information is 
necessary to resolve disputed issues in the record. Any relevant 
information received by OFE following the hearing that is not declared 
to be confidential under Sec. 501.7(a)(11) shall be made part of the 
public record with opportunity provided for rebuttal.
    (c) OFE will notify all participants if, after the close of any 
public hearing or comment period, it receives or obtains any relevant 
information or evidence. Participants may respond to such information or 
evidence in writing within fourteen (14) days of such notification. If 
OFE finds that the additional information or evidence relates to 
material issues of disputed fact and may significantly influence the 
outcome of the proceeding, OFE shall reopen the hearing on the issue or 
issues to which the additional information or evidence relates.



Sec. 501.67  Petition redesignations.

    OFE, with the petitioner's approval, will redesignate an exemption 
petition if the petitioner qualifies for an exemption other than the one 
originally requested, even though he may not qualify for the specific 
exemption originally requested, or be entitled to the full exemption 
period provided by requested exemption. OFE shall give public notice of 
any redesignation of an exemption petition, and where a public hearing 
has been requested notice shall be given at least thirty (30) days prior 
to such hearing.



Sec. 501.68  Decision and order.

    (a)(1) OFE shall issue an order either granting or denying the 
petition for an exemption or permit within six (6) months after the end 
of the period for public comment and hearing applicable to any petition.
    (2) OFE may extend the six (6) month period for decision to a date 
certain by publishing notice in the Federal Register, and stating the 
reasons for such extension.
    (3) OFE will publish a final EIS at least thirty (30) days prior to 
take issuance of the final order in all cases where an EIS is required.
    (b)(1) OFE shall serve a copy of the order granting or denying a 
petition for exemption to the petitioner and all persons on the service 
list in cases involving a public hearing.

[[Page 29]]

    (2) OFE shall publish any order granting or denying a petition under 
this subpart in the Federal Register together with a statement of the 
reasons for the grant or denial.
    (c)(1) Any order granting or denying a petition for exemption shall 
be based upon consideration of the whole record or those parts thereof 
cited by a party and supported by, and in accordance with, reliable, 
probative and substantive evidence.
    (2) The denial of a petition for exemption shall be without 
prejudice to the petitioner's right to submit an amended petition. OFE 
may, however, reject the amended petition if it is not materially 
different from the denied petition.
    (d) OFE may design any terms and conditions included in any 
temporary exemption issued or extended under section 211 of FUA, to 
ensure, among other things, that upon expiration of the exemption the 
persons and powerplant covered by the exemption will comply with the 
applicable prohibitions under FUA. For purposes of the provision, the 
subsequent grant of a permanent exemption to the subject unit shall be 
deemed compliance with applicable prohibitions.

(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42 
U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of 1978, 
Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus Budget 
Reconciliation Act of 1981, Pub. L. 97-35; E.O. 12009, 42 FR 46267, 
Sept. 15, 1977)

[46 FR 59889, Dec. 7, 1981, as amended at 47 FR 50849, Nov. 10, 1982; 54 
FR 52893, Dec. 22, 1989]



Sec. 501.69  Judicial review.

    Any person aggrieved by any order issued by OFE under this subpart, 
must file, within sixty (60) days of publication of the final order in 
the Federal Register, a petition for judicial review in the United 
States Court of Appeals for the Circuit wherein he resides, or has his 
principal place of business. Exhaustion of administrative remedies for 
purposes of judicial review does not require filing a petition pursuant 
to subpart G for modification or rescission of the order to be reviewed.



  Subpart G_Requests for Modification or Rescission of a Rule or Order



Sec. 501.100  Purpose and scope.

    (a) Anyone may request that OFE commence a rulemaking proceeding 
pursuant to 5 U.S.C. 553(e); however, this subpart provides the 
procedures to be followed by--
    (1) An interested person seeking the modification or rescission of a 
prohibition by rule applicable to a new facility;
    (2) An owner or operator of a facility named in a prohibition by 
rule requesting the modification or rescission of that rule; or
    (3) An owner or operator subject to an exemption order or a specific 
prohibition imposed by order requesting the modification or a rescission 
of that order.
    (b) OFE also may commence a modification or rescission proceeding on 
its own initiative.



Sec. 501.101  Proceedings to modify or rescind a rule or order.

    (a) In response to a request duly filed by an interested person, OFE 
may commence a proceeding to modify or rescind a rule or order. If OFE 
determines that a request to modify or rescind a rule or order does not 
warrant commencement of a proceeding, it will deny the request and issue 
a brief statement of the reason(s) for the denial.
    (b) A request for modification or rescission of a rule or order must 
comply with the requirements of Sec. 501.7 and must be filed at the 
address set forth in Sec. 501.11.
    (c) Notice of the request for modification or rescission of an order 
must be given by the requester to each party to the original proceeding 
that resulted in the issuance of the original order for which 
modification or rescission is sought. If the number of parties to the 
original proceeding is too large to allow actual notice at a reasonable 
cost or within a reasonable time, a requester may ask that OFE give 
notice to the parties by publication in the Federal Register; however, 
this alternate notice does not bind OFE to

[[Page 30]]

commence a proceeding, if it subsequently determines that the request is 
not warranted.
    (d) If OFE determines to grant a request to commence a proceeding to 
rescind or modify a rule or order, or OFE on its own initiative, 
commences a proceeding for the modification or rescission of a rule or 
order, it will give notice, either by service of a written notice or by 
oral communication (which communication must be promptly confirmed in 
writing) to each person upon whom the order was served that OFE proposes 
to modify or rescind, or, alternatively, by publication of notice in the 
Federal Register. OFE will give a reasonable period of time for each 
person notified to file a written response.
    (e)(1) A copy of any written comments submitted to OFE under this 
subpart by a party to the original proceeding must also be sent to the 
requester. The party submitting such comments must certify to OFE that 
he has sent a copy of such comments to the requester.
    (2) OFE may notify other persons participating in the proceeding of 
the comments and provide an opportunity for those notified to respond.
    (f) A request for modification or rescission of a rule or order must 
contain a complete statement of all facts relevant to the action sought. 
The request must also include the names and addresses of all reasonably 
ascertainable persons who will be affected. Pertinent provisions 
contained in any documents believed to support a request may be briefly 
described, however, OFE reserves the right to obtain copies of any 
significant documents that will assist in making a determination on the 
merits of a request. The request must identify the specific order or 
rule for which modification or rescission is sought. A request should 
also indicate whether an informal conference will facilitate OFE's 
determination to commence, or not to commence a proceeding, or will 
assist OFE in making any determinations on material issues raised by the 
request.
    (g) A decision by OFE to commence a proceeding under this subpart 
does not entitle the requester to a public hearing on the request for 
modification or rescission. A public hearing may be held, however, if, 
in its discretion, OFE considers that a public hearing will advance its 
evaluation of the request.



Sec. 501.102  OFE evaluation of the record, decision and order for modification or rescission of a rule or order.

    (a) OFE will consider the entire administrative record in its 
evaluation of the decision and order for modification or rescission of a 
rule or order. OFE may investigate and corroborate any statement in the 
petition or related documents and may utilize in its evaluation any 
relevant facts obtained by its investigations. OFE may solicit or accept 
submissions from third persons relevant to any request under this 
subpart and all interested persons will be afforded an opportunity to 
respond to these submissions. OFE may, in its discretion and on its own 
initiative, convene a conference, if it considers that a conference will 
advance its evaluation of the request.
    (b) Criteria. Except where modification or rescission of a rule or 
order is initiated by OFE, OFE's decision to rescind or modify a rule or 
order will be based on a determination that there are significantly 
changed circumstances with respect to the applicability of a particular 
prohibition or exemption to the requester. OFE believes that there may 
be ``significantly changed circumstances'', if:
    (1) Significant material facts are subsequently discovered which 
were not known and could not have been known to the petitioner or to OFE 
at the time of the original proceeding;
    (2) A law, regulation, interpretation, ruling, order or decision on 
appeal that was in effect at the time of the proceeding upon which the 
rule or order is based and which, if it had been made known to OFE, 
would have been relevant to the proceeding and would have substantially 
altered the outcome is subsequently discovered; or
    (3) There has been a substantial change in the facts or 
circumstances upon which an outstanding and continuing order was based, 
which change occurred during the interval between issuance of the order 
and the date of filing of the request under this subpart,

[[Page 31]]

and was caused by force or circumstances beyond the requester's control.



Sec. 501.103  OFE decision.

    (a) OFE shall issue an appropriate rule or order after considering 
the request for modification or rescission of a rule or order and other 
relevant information received during the proceeding.
    (b) OFE will either grant or deny the request for modification or 
rescission and will briefly state the pertinent facts and legal basis 
for the decision.
    (c) OFE will serve the rule or order granting or denying the request 
for modification or rescission upon the requester, or, if the action was 
initiated by OFE, upon the owner or operator of the affected powerplant 
or installation. OFE will publish a notice of the issuance of a rule or 
order modifying or rescinding a rule or order in the Federal Register.



                       Subpart H_Requests for Stay



Sec. 501.120  Purpose and scope.

    (a) This subpart sets forth the procedures for the request and 
issuance of a stay of a rule or order or other requirement issued or 
imposed by OFE or these regulations but does not apply to the mandatory 
stays provided for in sections 202(b) and 301(a) of FUA. The application 
for a stay under this subpart will only be considered incidental to a 
proceeding on a request for modification or rescission of a final 
prohibition rule or order.
    (b) The petitioner must comply with all final and effective OFE 
orders, regulations, rulings, and generally applicable requirements 
unless a petition for a stay is granted or is applicable under FUA.



Sec. 501.121  Filing and notice of petitions for stays.

    (a)(1) The petition for a stay must be in writing and comply with 
the general filing requirements stated in Sec. 501.7, in addition to 
any other requirements set forth in this subpart, and must be filed at 
the address provided in Sec. 501.11.
    (2) A claim for confidential treatment of any information contained 
in the petition for stay and supporting documents must be in accordance 
with Sec. 501.7(a)(11), and filed at the address provided in Sec. 
501.11.
    (b) OFE will publish notice of receipt of a petition for a stay 
under this subpart in the Federal Register.



Sec. 501.122  Contents.

    (a) A petition for a stay shall contain a full and complete 
statement of all facts believed to be pertinent to the act or 
transaction for which a stay is sought. The facts shall include, but not 
be limited to, the criteria listed below in Sec. 501.123(b).
    (b) The petitioner may request a conference regarding the 
application. If the request is not made at the time the application is 
filed, it must be made as soon thereafter as possible. The request and 
OFE's determination regarding it will be made in accordance with subpart 
C of this part.



Sec. 501.123  Evaluation of the record.

    (a) The record in a proceeding on a petition for stay shall consist 
of the petition and any related documents, evidence submitted at any 
public proceedings and any other information in the possession of OFE 
and made part of the record. OFE may investigate and corroborate any 
statement in the petition or any other document submitted to it and may 
utilize in its evaluation any relevant facts obtained by its 
investigations. OFE may solicit or accept submissions from third persons 
relevant to the petition for stay or other document and any interested 
person will be afforded an opportunity to respond to these submissions. 
OFE, on its initiative, may convene a conference, if, in its discretion, 
it considers that the conference will advance its evaluation of the 
petition.
    (b) Criteria. (1) OFE may grant a stay incident to a proceeding on a 
petition for modification of a rule or order if the petitioner shows:
    (i) Irreparable injury will result if the stay is denied;
    (ii) There is a strong likelihood of success on the merits;
    (iii) The denial of a stay will result in a more immediate hardship 
or inequity to the petitioner than to other persons affected by the 
proceeding; and

[[Page 32]]

    (iv) It would be desirable for reasons of public policy to grant the 
stay.



Sec. 501.124  Decision and order.

    (a) OFE will issue an order granting or denying the petition for a 
stay upon consideration of the request and other relevant information 
received or obtained during the proceeding.
    (b) OFE will include in the order a brief written statement setting 
forth the relevant facts and the basis of the decision, including any 
appropriate terms and conditions of the stay.



                  Subpart I_Requests for Interpretation



Sec. 501.130  Purpose and scope.

    This subpart establishes procedures for filing a formal request for 
and the issuance of an interpretation of a rule, order or other action 
by DOE. Any response, whether oral or written, to a general inquiry, or 
to other than a formal written request for interpretation filed with 
DOE, is not an interpretation and merely provides general information 
that may not be relied upon in any proceeding to determine compliance 
with the applicable requirements of FUA.



Sec. 501.131  Filing a request for interpretation.

    A proceeding to request an interpretation is commenced by the filing 
of a ``Request for Interpretation (FUA).'' The request must be in 
writing and must also comply with the general filing requirements stated 
in Sec. 501.7. Any claims for confidential treatment for any 
information contained in the request or other related documents must be 
made pursuant to Sec. 501.7(a)(11). A request for interpretation should 
be filed with the Assistant General Counsel for Interpretations and 
Rulings at the address provided in Sec. 501.11.



Sec. 501.132  Contents of a request for interpretation.

    (a) A request for an interpretation must contain a complete 
statement of all the facts believed to be relevant to the circumstances, 
acts or transactions that are the subject of the request. The facts must 
include the names and addresses of all potentially affected persons (if 
reasonably ascertainable) and a full discussion of the pertinent 
provisions and relevant facts contained in any documents submitted with 
the request. Copies of relevant contracts, agreements, leases, 
instruments, and other documents relating to the request must be 
submitted if DOE believes they are necessary for determination of any 
issue pending in the proceeding under this subpart. When the request 
pertains to only one step in a larger integrated transaction, the 
requesting party must also submit the facts, circumstances, and other 
relevant information pertaining to the entire transaction.
    (b) The requesting party must include in the request a discussion of 
all relevant legal authorities, rulings, regulations, interpretations 
and decisions on appeal relied upon to support the particular 
interpretation sought.
    (c) DOE may refuse to issue an interpretation if it determines that 
there is insufficient information upon which to base an interpretation.



Sec. 501.133  DOE evaluation.

    (a)(1) The record shall consist of the request for an interpretation 
and any supporting documents, all relevant evidence presented at any 
public proceedings, written comments and any information in the 
possession of DOE that has been made part of the record.
    (2) DOE may investigate and corroborate any statement in a request 
or related documents and may utilize in its evaluation any relevant 
facts obtained by the investigation. DOE may solicit or accept 
submissions from third persons relevant to the request for 
interpretation, or any other document submitted under this subpart, and 
the person requesting the interpretation will be afforded an opportunity 
to respond to these submissions.
    (3) The General Counsel or his delegate will issue an interpretation 
on the basis of the information provided in the request, unless that 
information is supplemented by other information brought to the 
attention of DOE during the proceeding. DOE's interpretation will, 
therefore, depend on the accuracy of the factual statements, and the 
requesting party may rely upon it only

[[Page 33]]

to the extent that the facts of the actual situation correspond to those 
upon which the interpretation is based.
    (b) Criteria. (1) DOE will base its FUA interpretations on the DEOA 
and FUA, as applicable, and the regulations and published rulings of DOE 
as applied to the specific factual situation presented.
    (2) DOE will take into consideration previously issued 
interpretations dealing with the same or a related issue.



Sec. 501.134  Issuance and effect of interpretations.

    (a) DOE may issue an interpretation after consideration of the 
request for interpretation and other relevant information received or 
obtained during the proceeding.
    (b) The interpretation will contain a written statement of the 
information upon which it is based and a legal analysis of and 
conclusions regarding the application of rulings, regulations and other 
precedent to the situation presented in the request.
    (c) Only those persons to whom an interpretation is specifically 
addressed, and other persons upon whom the DOE serves the interpretation 
and who are directly involved in the same transaction or act, are 
entitled to rely upon it. No person entitled to rely upon an 
interpretation shall be subject to civil or criminal penalties stated in 
title VII of FUA for any act taken in reliance upon the interpretation, 
notwithstanding that the interpretation shall thereafter be declared by 
judicial or other competent authority to be invalid.
    (d) DOE may at any time rescind or modify an interpretation on its 
own initiative. Rescission or modification shall be made by notifying 
persons entitled to rely on the interpretation that it is rescinded or 
modified. This notification will include a statement of the reasons for 
the rescission or modification and, in the case of a modification, a 
restatement of the interpretation as modified.
    (e) An interpretation is modified by a subsequent amendment to the 
regulations or ruling to the extent that it is inconsistent with the 
amended regulation or ruling.
    (f) Any person who believes he is directly affected by an 
interpretation issued by DOE, and who believes that he will be aggrieved 
by its implementation, may submit a petition for reconsideration of that 
interpretation to the General Counsel. DOE will acknowledge receipt of 
all requests for reconsideration; however, this acknowledgement in no 
way binds DOE to commence any proceeding on the request. If within sixty 
(60) days of DOE's acknowledgement of the receipt of a request for 
reconsideration, DOE has not issued either a notice of intent to 
commence a proceeding to reconsider the interpretation or a 
modification, revision or rescission of the original interpretation, the 
request for reconsideration will be deemed denied. DOE may, in its 
discretion, issue a formal denial of a request for reconsideration if:
    (1) The request has not been filed in a timely manner, and good 
cause therefor has not been shown;
    (2) The person requesting reconsideration is not aggrieved or 
otherwise injured substantially by the interpretation; or
    (3) The request is defective because it fails to state and to 
present facts and legal argument that the interpretation was erroneous 
in fact or in law, or that it was arbitrary or capricious.



                            Subpart J_Rulings



Sec. 501.140  Purpose and scope.

    DOE may issue rulings in accordance with the provisions of this 
subpart. DOE will publish each ruling in the Federal Register and in 10 
CFR part 518. A person is entitled to rely upon a ruling to the extent 
provided in this subpart.



Sec. 501.141  Criteria for issuance.

    (a) The General Counsel may issue a ruling whenever:
    (1) There has been a substantial number of inquiries with regard to 
similar factual situations or a particular section of the regulations; 
or
    (2) It is determined that a ruling will be of assistance to the 
public in applying the regulations to a specific situation.

[[Page 34]]



Sec. 501.142  Modification or rescission.

    (a) A ruling may be modified or rescinded by--
    (1) Publication of the modification or rescission by DOE in the 
Federal Register and in 10 CFR part 518; or
    (2) Adoption of a rule that supersedes or modifies a prior ruling.
    (b) A person shall not be subject to the sanctions or penalties 
stated in these regulations for actions taken in reliance upon a ruling, 
notwithstanding that the ruling is subsequently declared to be invalid 
or no longer applicable. A person affected by a ruling may not rely upon 
it for more than 30 days after it has been rendered invalid pursuant to 
issuance of a superseding rule by OFE, or after it has been rescinded or 
modified by DOE.



Sec. 501.143  Comments.

    Any interested person may file a written comment on or objection to 
a published ruling at any time with the Assistant General Counsel for 
Interpretations and Rulings at the address provided in Sec. 501.11.



                          Subpart K_Enforcement



Sec. 501.160  Purpose and scope.

    This subpart provides the procedures by which OFE may initiate 
enforcement proceedings on its own behalf and by which complaints 
concerning a violation of the Act or any rule or order thereunder may be 
filed.



Sec. 501.161  Filing a complaint.

    (a) A complaint under this subpart must be submitted in writing over 
the signature of the person making the complaint in accordance with the 
general filing requirements stated in Sec. 501.7. OFE will accept oral 
complaints that otherwise satisfy the requirements of this subpart, but 
OFE may request written verification.
    (b) A complaint shall be filed at the address provided in Sec. 
501.11.



Sec. 501.162  Contents of a complaint.

    A complaint must contain a complete statement of all relevant facts 
pertaining to the act or transaction that is the subject of the 
complaint. It must also include the names and addresses of all persons 
involved (if reasonably ascertainable), a description of the events that 
led to the complaint, and a statement describing the statutory 
provision, regulation, ruling, order, rule, or interpretation that 
allegedly has been violated.



Sec. 501.163  OFE evaluation.

    (a) The record shall consist of the complaint and any supporting 
documents and all other relevant information developed in the course of 
any investigations or proceedings related to that complaint. OFE may 
investigate and corroborate any statement in the complaint or related 
documents submitted, and may utilize in its evaluation any relevant 
facts obtained by such investigation or from any other source of 
information. OFE may solicit or accept submissions from third persons 
relevant to the complaint or other related documents.
    (b) Confidentiality of information. OFE will treat as confidential 
information received in any investigation of a complaint, including the 
identity of the complainant and the identity of any other persons who 
provide information to the extent such information is exempt from public 
disclosure under the Freedom of Information Act, 5 U.S.C. 552. OFE 
reserves the right to make disclosures that would be in the public 
interest.



Sec. 501.164  Decision to initiate enforcement proceedings.

    After investigation of a specific complaint or based on any relevant 
information received or obtained during an investigation, OFE may issue 
a notice of violation, determine that no violation has occurred, or take 
such other actions as it deems appropriate. Prior to issuance of a 
notice of violation, and before commencement of an enforcement 
proceeding, OFE may transmit a draft of the notice of violation to the 
potentially affected person in order to promote an informal resolution 
of the violation.



Sec. 501.165  Commencement of enforcement proceedings.

    (a) Whenever, on the basis of any information available, OFE 
determines that a person is in violation or about

[[Page 35]]

to be in violation of any provision of these regulations, OFE may issue 
a notice of violation stating, in writing and with reasonable 
specificity, the nature of the violation. An enforcement proceeding 
commences with the issuance of a notice of violation.
    (b) Contents of the notice of violation. OFE will set forth in the 
notice of violation the nature of the violation, the relevant facts that 
OFE believes establish the violation and the legal basis for the 
conclusions reached therein. OFE may also include with the notice of 
violation a copy of a proposed order. The notice of violation will also 
state whether or not OFE proposes to assess civil penalties.
    (1) If OFE proposes to assess a civil penalty, a notice of violation 
will be issued to the violator with an opportunity for a hearing before 
an Administrative Law Judge, as set forth in Sec. 501.166(a)(1) of this 
part, before any final determination on the violation and penalty are 
made by OFE. The recipient of the notice will also be informed of his 
right to elect to have the procedures of Sec. 501.166(a)(2) apply, in 
lieu of the hearing, with respect to a final determination on the 
assessment of any civil penalty.
    (2) If OFE does not propose to assess a civil penalty, the violator 
will be provided the opportunity for a conference, as set forth in Sec. 
501.166(b), before a final determination on the violation is made by 
OFE. OFE may, in its discretion, also provide the violator an 
opportunity for a hearing pursuant to Sec. 501.166(a)(1).
    (c) Service. OFE will serve the notice of violation in accordance 
with provisions set forth in Sec. 501.6.
    (d) Rescission. If, after issuance of a notice of violation and any 
related investigation, OFE finds no basis for the belief that a 
violation has occurred, is continuing to occur, or is about to occur, 
OFE may rescind the notice of violation by giving written notice to that 
effect to the recipient.



Sec. 501.166  Hearings and conferences.

    (a) When a civil penalty is proposed--(1) Hearing alternative in 
civil penalty assessment proceedings. Unless the recipient of a notice 
of violation elects in writing to have the provisions of paragraph 
(a)(2) of this section apply, OFE will commence a proceeding to assess a 
penalty and, prior to a final determination on the violation and 
assessment of a penalty, provide an opportunity for a hearing pursuant 
to 5 U.S.C. 554 before an Administrative Law Judge.
    (2) Election alternative in civil penalty assessment proceedings. 
The recipient of a notice of violation in which a civil penalty 
assessment has been proposed may elect, in writing, within thirty (30) 
days of receipt of the notice, to waive the administrative proceedings 
described in paragraph (a)(1) of this section. OFE will make a 
determination on the proposed civil penalty assessment and issue a final 
order to that effect within forty-five (45) days after receiving notice 
of the exercise of this election.
    (b) When a civil penalty is not proposed--opportunity to request a 
conference. If a person has received a notice of violation in which a 
civil penalty has not been proposed, he may, within thirty (30) days 
after receipt of the notice, request a conference with OFE to discuss 
the notice. In order to request a conference he must comply with the 
instructions set forth in the notice.



Sec. 501.167  Fuel use order.

    (a) General. OFE will issue a Fuel Use Order if, after considering 
all the information received during the proceeding, OFE determines that 
a person has committed, is committing, or is about to commit a violation 
of FUA or of an order or rule thereunder.
    (b) Contents. Any Fuel Use Order issued under this section shall set 
forth the relevant facts and legal basis for the order and where 
appropriate, the final penalty assessment and the basis therefor. When 
an administrative hearing is requested under Sec. 501.166(a) of this 
part, the Fuel Use Order will include the recommended findings and 
conclusions of the Administrative Law Judge (ALJ) and the basis for the 
penalty assessment. OFE will make a final determination as to any 
penalty assessment or other appropriate remedy based upon the 
recommended findings and conclusions of the ALJ and other information in 
the record of the enforcement proceeding. The order will

[[Page 36]]

be effective upon service, unless otherwise provided therein, or stayed 
pursuant to Sec. 501.120.
    (c) Service. OFE will serve a copy of the Fuel Use Order upon any 
person who was served a copy of the notice of violation and upon all 
parties to any public proceeding on the notice of violation. OFE will 
place a copy of each final order on file in the Public Information 
Office described in Sec. 501.12.
    (d) Judicial review. Any person against whom a penalty is assessed 
pursuant to Sec. 501.167(b) after a hearing before an ALJ may, within 
sixty (60) calendar days after the date of issuance of the order 
assessing such penalty, institute an action in the United States Court 
of Appeals for the appropriate judicial circuit for judicial review of 
such order in accordance with the provisions of section 723 of FUA.



  Subpart L_Investigations, Violations, Sanctions and Judicial Actions



Sec. 501.180  Investigations.

    (a) General. Pursuant to section 711 of FUA, the DEOA, and in 
accordance with the provisions of 10 CFR 205.201, OFE may initiate and 
conduct investigations relating to the scope, nature, and extent of 
compliance by any person with the rules, regulations, and orders issued 
by OFE under the authority of the Act, or any order or decree of court 
relating thereto, or any other agency action. When the circumstances 
warrant, OFE may issue subpoenas as provided in subpart D of this part. 
OFE may also conduct investigative conferences in conjunction with any 
investigation.
    (b) Any duly authorized representative of OFE has the authority to 
conduct an investigation and to take such action as he deems necessary 
and appropriate to the conduct of the investigation.
    (c) Notification. If any person is required to furnish information 
or documentary evidence pursuant to a subpoena or special report order, 
OFE will, upon written request, inform that person as to the general 
purposes of the investigation.
    (d) Confidentiality. OFE shall not disclose any information received 
during an investigation under this section, including the identities of 
the person investigated and any other person who provides information, 
to the extent it is exempt from public disclosure pursuant to 5 U.S.C. 
552 and 10 CFR part 1004.



Sec. 501.181  Sanctions.

    (a) General. (1) A violation of any provision of the Act (other than 
section 402 of FUA), or any rule or order thereunder shall be subject to 
the penalties and sanctions provided in subtitle C of title VII of FUA.
    (2) Each day that any provision of the Act (other than section 402), 
or any rule or order thereunder is violated constitutes a separate 
violation within the meaning of the provisions of this section relating 
to civil penalties.
    (b) Criminal penalties. Any person who willfully violates any 
provision of the Act (other than section 402), or any rule or order 
thereunder will be subject to a fine of not more than $50,000, or to 
imprisonment for not more than 1 year, or both, for each violation.
    (c) Civil Penalties. (1) Any person who violates any provisions of 
the Act (other than section 402) or any rule or order thereunder will be 
subject to the following civil penalty, which may not exceed $40,000 for 
each violation: Any person who operates a powerplant or major fuel 
burning installation under an exemption, during any 12-calendar-month 
period, in excess of that authorized in such exemption will be assessed 
a civil penalty of up to $3.30 for each MCF of natural gas or up to $20 
for each barrel of oil used in excess of that authorized in the 
exemption.
    (2) OFE may compromise and settle, and collect civil penalties 
whenever it considers it to be appropriate or advisable.
    (d) Corporate personnel. (1) If a director, officer, or agent of a 
corporation willfully authorizes, orders, or performs any act or 
practice constituting in whole or in part a violation of the Act, or any 
rule or order thereunder, he will be subject to the penalties specified 
in paragraphs (b) and (c) of this section without regard to any 
penalties to which the corporation may be subject. He will not, however, 
be subject to imprisonment under paragraph (b) of

[[Page 37]]

this section unless he knew of noncompliance by the corporation, or had 
received from OFE notice of noncompliance by the corporation.
    (2) Purposes of this paragraph:
    (i) Agent includes any employee or other person acting on behalf of 
the corporation on either a temporary or permanent basis; and
    (ii) Notice of noncompliance is a final Fuel Use Order issued under 
Sec. 501.167 of this part.

[46 FR 59889, Dec. 7, 1981, as amended at 62 FR 46183, Sept. 2, 1997; 74 
FR 66032, Dec. 14, 2009]



Sec. 501.182  Injunctions.

    Whenever it appears to OFE that any person has committed, is 
committing, or is about to commit a violation of any provision of the 
Act, or any rule or order thereunder, OFE may, in accordance with 
section 724 of FUA, bring a civil action in the appropriate United 
States District Court to enjoin such acts or practices. The relief 
sought may include a mandatory injunction commanding any person to 
comply with any provision of such provision, order or rule, the 
violation of which is prohibited by section 724 of FUA and may also 
include interim equitable relief.



Sec. 501.183  Citizen suits.

    (a) General. A person who believes he is aggrieved by the failure of 
OFE to perform any nondiscretionary act of duty under the Act may file a 
Petition for Action for OFE to take such action as he may feel to be 
proper. This petition must be filed at the address provided in Sec. 
501.11. The petition must specify the action requested and set forth the 
facts and legal arguments that constitute the basis for the request. The 
filing of a Petition for Action will serve as notice to OFE under FUA 
section 725(b) for purposes of any citizens suit that may be 
subsequently filed.
    (b) OFE decision. Within sixty (60) days of receiving the Petition 
for Action, OFE will notify the person giving notice under this section 
that it has instituted the action requested or that other described 
action is being taken, or that other described action is being taken, or 
that no action is being taken and the reasons therefor.



      Subpart M_Use of Natural Gas or Petroleum for Emergency and 
                 Unanticipated Equipment Outage Purposes



Sec. 501.190  Purpose and scope.

    (a) If a person operates a powerplant covered by any of the 
prohibitions of titles II, III, or IV of FUA, Sec. 501.191 of this 
subpart establishes procedures to be followed for the use of minimum 
amounts of natural gas or petroleum under FUA section 103(a)(15)(B) in 
order to alleviate or prevent unanticipated equipment outages and 
emergencies directly affecting the public health, safety, or welfare 
that would result from electric power outages.
    (b) Explanatory note: If a person operates a rental boiler as a 
powerplant covered by any of the prohibitions of titles II, III, or IV 
of FUA, he may be able to use the provisions of this subpart for the 
emergency use of natural gas or petroleum.

[54 FR 52893, Dec. 22, 1989]



Sec. 501.191  Use of natural gas or petroleum for certain unanticipated equipment 

outages and emergencies defined in section 103(a)(15)(B) of the act.

    (a) In the event of the occurrence or imminent occurrence of an 
emergency, or of the occurrence or imminent occurrence of an 
unanticipated equipment outage in the unit, an owner or operator of a 
powerplant is automatically permitted to use minimum amounts of natural 
gas or petroleum in the unit or in a substitute unit to prevent or 
alleviate the outage or to prevent or alleviate the emergency if he 
complies with procedures contained in paragraph (b) of this section.
    (b) If the use of minimum amounts of petroleum or natural gas is 
required for purposes specified in this section, the owner or operator 
must notify OFE of such use by telegram or telephone within 24 hours 
after the commencement of such use. Immediately thereafter a written 
confirmation must be submitted to OFE, describing, to the best estimate 
of the owner or operator,

[[Page 38]]

(1) the nature of the emergency and (2) how long petroleum or natural 
gas use is likely to be required.
    (c) For purposes of this section only:
    (1) An emergency is the occurrence or threat of imminent occurrence 
of a condition which results or would result from an electric power 
outage and directly effects or would directly effect the public health, 
safety or welfare;
    (2) Unanticipated equipment outage shall mean an unexpected outage 
due to equipment failure.
    (3) Minimum amounts required to alleviate or prevent shall mean:
    (i) For powerplants, the amounts of natural gas or petroleum 
required to prevent curtailment of electric supply where the operating 
utility has, to the maximum extent possible, utilized alternate fuel-
fired capacity to prevent such curtailment. Note--A utility operating 
hydroelectric facilities may take into account seasonal fluctuations in 
storage capacity and shall be permitted to prevent depletion of stored 
power-producing capacity as deemed necessary by the utility; and
    (ii) For installations, the amounts of natural gas or petroleum 
required to meet plant protection or human health and safety needs, 
including services to hospitals, public transportation facilities, 
sanitation, or water supply and pumping.

[46 FR 59889, Dec. 7, 1981, as amended at 54 FR 52893, Dec. 22, 1989]



Sec. 501.192  [Reserved]



PART 503_NEW FACILITIES--Table of Contents



                      Subpart A_General Prohibition

Sec.
503.1 Purpose and scope.
503.2 Prohibition.
503.3 [Reserved]

              Subpart B_General Requirements for Exemptions

503.4 Purpose and scope.
503.5 Contents of petition.
503.6 Cost calculations for new powerplants and installations.
503.7 State approval--general requirement for new powerplants.
503.8 No alternate power supply--general requirement for certain 
          exemptions for new powerplants.
503.9 Use of mixtures--general requirement for certain permanent 
          exemptions.
503.10 Use of fluidized bed combustion not feasible--general requirement 
          for permanent exemptions.
503.11 Alternative sites--general requirement for permanent exemptions 
          for new powerplants.
503.12 Terms and conditions; compliance plans.
503.13 Environmental impact analysis.
503.14 Fuels search.

            Subpart C_Temporary Exemptions for New Facilities

503.20 Purpose and scope.
503.21 Lack of alternate fuel supply.
503.22 Site limitations.
503.23 Inability to comply with applicable environmental requirements.
503.24 Future use of synthetic fuels.
503.25 Public interest.

            Subpart D_Permanent Exemptions for New Facilities

503.30 Purpose and scope.
503.31 Lack of alternate fuel supply for the first 10 years of useful 
          life.
503.32 Lack of alternate fuel supply at a cost which does not 
          substantially exceed the cost of using imported petroleum.
503.33 Site limitations.
503.34 Inability to comply with applicable environmental requirements.
503.35 Inability to obtain adequate capital.
503.36 State or local requirements.
503.37 Cogeneration.
503.38 Permanent exemption for certain fuel mixtures containing natural 
          gas or petroleum.
503.39-503.44 [Reserved]

    Authority: Department of Energy Organization Act, Pub. L. 95-91, 91 
Stat. 565 (42 U.S.C. Sec. 7101 et seq.); Powerplant and Industrial Fuel 
Use Act of 1978, Pub. L. 95-620, 92 Stat. 3289 (42 U.S.C. 8301 et seq.); 
Energy Security Act, Pub. L. 96-294, 94 Stat. 611 (42 U.S.C. 8701 et 
seq.); E.O. 1209, 42 FR 46267, September 15, 1977.

    Source: 46 FR 59903, Dec. 7, 1981, unless otherwise noted.

(OMB Control No.: 1903-0075. See 46 FR 63209, Dec. 31, 1981.)



                      Subpart A_General Prohibition



Sec. 503.1  Purpose and scope.

    This subpart sets forth the statutory prohibition imposed by the Act 
upon new powerplants. The prohibition in the subpart applies to all new 
baseload

[[Page 39]]

electric powerplants unless an exemption has been granted by OFE under 
subparts C and D of this part. Any person who owns, controls, rents, 
leases or operates a new powerplant that is subject to the prohibition 
may be subject to sanctions provided by the Act or these regulations.

[54 FR 52893, Dec. 22, 1989]



Sec. 503.2  Prohibition.

    Section 201 of the Act prohibits, unless an exemption has been 
granted under subpart C or D of this part, any new electric powerplant 
from being constructed or operated as a baseload powerplant without the 
capability to use coal or another alternate fuel as a primary energy 
source.

[54 FR 52893, Dec. 22, 1989]



Sec. 503.3  [Reserved]



              Subpart B_General Requirements for Exemptions



Sec. 503.4  Purpose and scope.

    This subpart establishes the general requirements necessary to 
qualify for either a temporary or permanent exemption under this part 
and sets out the methodology for calculating the cost of using an 
alternate fuel and the cost of using imported petroleum.



Sec. 503.5  Contents of petition.

    Before OFE will accept a petition for either a temporary or 
permanent exemption under this part, the petition must include all of 
the evidence and information required in this part and part 501 of this 
chapter.



Sec. 503.6  Cost calculations for new powerplants and installations.

    (a) General. (1) This calculation compares the cost of using 
alternate fuel to the cost of using imported petroleum. It must be 
performed for each alternate fuel and/or alternate site that the 
petitioner is required to examine.
    (2) The cost of using an alternate fuel as a primary energy source 
will be deemed to substantially exceed the cost of using imported 
petroleum if the difference between the cost of using alternate fuel and 
the cost of using imported oil is greater than zero.
    (3) There are two comparative cost calculations--a general cost test 
and a special cost test. Both take into consideration cash outlays for 
capital investments, annual expenses, and the effect of depreciation and 
taxes on cash flow. To demonstrate eligibility for a permanent 
exemption, a petitioner must use the procedures specified in the general 
cost test (paragraph (b) of this section). To demonstrate eligibility 
for a temporary exemption, the petitioner may apply the procedures 
specified in either the general cost test or the special cost test 
(paragraph (c) of this section).
    (b) Cost calculation--general cost test. (1) A petitioner may be 
eligible for a permanent exemption if he can demonstrate that the cost 
of using an alternate fuel from the first year of operation 
substantially exceeds the cost of using imported petroleum. Unless the 
best practicable cost estimates as prescribed below will not materially 
change during the first ten years of operation of the unit (given the 
best information available at the time the petition is filed), the 
petitioner must also demonstrate that the cost of using an alternate 
fuel beginning at any time within the first ten years of operation and 
using imported petroleum or natural gas until such time (i.e., delayed 
use of alternate fuel) would substantially exceed the cost of using only 
imported petroleum.
    (2) The petitioner would only be eligible for a temporary exemption 
if the computed costs of delayed alternate fuel use, commencing at the 
start of the second through eleventh years of operation, do not always 
substantially exceed the cost of using only imported petroleum. The 
length of the temporary exemption would be the minimum period from the 
start of operation in which the cost of using alternate fuel 
substantially exceeds the cost of using imported petroleum.
    (3) To conduct the general cost test, calculate the difference 
(DELTA) between the cost of using an alternate fuel (COST(ALTERNATE)) 
and the cost of using imported petroleum (COST(OIL)) using Equations 1 
through 3 below and the comparison procedures in paragraph (b)(5) of 
this section.

[[Page 40]]

[GRAPHIC] [TIFF OMITTED] TC01OC91.000

    (4) The terms in Equations 2 and 3 are defined as follows:

i=Year. i is a specified year either before year 0 or after year 0. Year 
0 is the year before the unit becomes operational. For example, in the 
third year before the unit becomes operational, i would equal -2, and in 
the third year following commencement of operations of the unit, i would 
equal +3. Years are represented by 52 week periods prior to or following 
the date on which the unit becomes operational. Outlays before the unit 
becomes operational are future valued to the year before the unit 
becomes operational (year 0), and outlays after the unit becomes 
operational are present valued to the year before the unit becomes 
operational. Year 0 must be the same for the units being compared.
g=The number of years prior to the year before the unit becomes 
operational (year 0) that (1) a cash outlay is first made for capital 
investments, or (2) an investment tax credit is first used--whichever 
occurs first.
N=The useful life of the unit (see paragraph (d)(5) of this section).
Ii=Yearly cash outlay (in dollars) from the year outlays 
first occur to the last year of the unit's useful life for capital 
investments. (See paragraph (d)(2) of this section for the items that 
must be included.)
OMi=Annual cash outlay in year i (in dollars) for all 
operations and maintenance expenses except fuel (i.e., all non-capital 
and non-fuel cash outlays caused by putting the capital investments (I) 
into service). This may include labor, materials, insurance, taxes 
(except income taxes), etc. (See paragraph (d)(3) of this section.)
Si=Salvage value of capital investment (in dollars) in year 
i.
FLi=Annual cash outlay for delivered fuel expenses (in 
dollars) in year i. (See paragraph (d)(3) of this section for 
FLi calculation instructions and appendix II of these 
regulations for the procedures to determine fuel price.)
k=The discount rate expressed as a fraction (see paragraph (d)(4) of 
this section).
ITCi=Federal investment tax credit used in year i resulting 
from capital investments (see paragraph (d)(6) of this section).
DPRi=Depreciation in year i resulting from capital 
investments (see paragraph (d)(6) of this section).
ti=Marginal income tax rate in year i (see paragraph (d)(6) 
of this section).
IXi=Inflation index value for year i (see appendix II to part 
504 for method of computation).
IXe=Inflation index value for the year e, the year before the 
asset is placed in service.

    (5) The step-by-step procedure that follows shows the comparison 
that the petitioner must make.
    (i) Compute the cost of using an alternate fuel (COST(ALTERNATE)) 
unit throughout the useful life of the unit using Equations 2 and 3.

[[Page 41]]

    (ii) Compute the cost of using oil or natural gas (COST(OIL)) 
throughout the useful life of the unit using Equations 2 and 3.
    (iii) Using Equation 1, compute the difference (DELTA) between COST 
(ALTERNATE) and COST (OIL). If the difference (DELTA) is less than or 
equal to zero, a petitioner is not eligible for a permanent or temporary 
exemption using the general cost test and need not complete the 
remainder of the general cost test calculation. However, he still may be 
eligible for a temporary exemption using the special cost test 
(paragraph (c) of this section). If the difference (DELTA) is greater 
than zero and if the best practicable cost estimates will not materially 
change during the first ten years of operation (given the best 
information available at the time the petition is filed), the petitioner 
has completed the test and is eligible for a permanent exemption. 
However, if the best practicable cost estimate will materially change 
during the first ten years, the petitioner must complete the remainder 
of the general cost test--the delayed use calculations which follow.
    (iv) Recompute COST (ALTERNATE) with Equations 2 and 3, assuming 
that an alternate fuel is not used as the primary energy source until 
the start of the second year of operation and that imported petroleum or 
natural gas is used for the first year of operation. All cash outlays 
should reflect postponed use of alternate fuel.
    (v) Successively recompute COST (ALTERNATE) with Equations 2 and 3, 
assuming that the alternate fuel use is postponed until the start of the 
third year, fourth year, and so on, through the beginning of the 
eleventh year of operation (with imported petroleum or natural gas used 
in the years preceding alternate fuel use).
    (vi) Compute the difference (DELTA) between each of the ten 
COST(ALTERNATE)s calculated in paragraph (b)(5) (iv) and (v) of this 
section and the COST(OIL) calculated in paragraph (b)(5)(ii) of this 
section.
    (vii) If all the DELTAs computed in paragraph (b)(5) (iii) and (vi) 
of this section are greater than zero, the petitioner is eligible for a 
permanent exemption. If one or more of the DELTAs is less than or equal 
to zero, he is eligible for a temporary exemption for the period 
beginning at the start of the first year of operation and terminating at 
the beginning of the first year in which a DELTA is zero or less.
    (c) Cost calculations--special cost test. (1) A petitioner may be 
eligible for a temporary exemption if he demonstrates that the cost of 
using an alternate fuel will substantially exceed the cost of using 
imported petroleum or (natural gas) over the period of the proposed 
exemption. The period of the proposed temporary exemption may not exceed 
ten years.

The petitioner must demonstrate that the cost of using an alternate fuel 
substantially exceeds the cost of using imported petroleum for the first 
year of operation, the first two years of operation, and so forth, 
through the period of the proposed exemption. OFE will limit the 
duration of a temporary exemption to the shortest time possible.
    (2) To conduct the test, calculate the difference (DELTA) between 
the cost of using an alternate fuel (COST (ALTERNATE)) and the cost of 
using imported petroleum (COST (OIL)) using Equations 4 and 5 below, 
Equation 3 (paragraph (b)(3) of this section), and the comparison 
procedures in paragraph (c)(4) of this section.

[[Page 42]]

[GRAPHIC] [TIFF OMITTED] TC01OC91.001

    Capital investment (I) is calculated with Equation 3 (paragraph 
(b)(3) of this section).
    (3) The terms in Equation 5 are the same as those in Equation 2 with 
the addition of P, the length of the proposed temporary exemption in 
years. (See paragraph (b)(4) of this section for other terms.)
    (4) The step-by-step procedure that follows shows the comparisons 
which must be made.
    (i) Using Equation 5, compute the cost of using an alternate fuel 
(COST(ALTERNATE)) assuming the length of the proposed exemption is one 
year.
    (ii) Likewise, compute the cost of using imported petroleum or 
natural gas (COST(OIL)) assuming the length of the proposed exemption is 
one year.
    (iii) Compute the difference (DELTA) between COST (ALTERNATE) and 
COST (OIL) using Equation 4.
    (iv) Repeat the calculations made in (i), (ii), and (iii) above, 
assuming the length of the proposed exemption is two years, three years, 
four years, and so on, up through the period of the proposed exemption.
    (v) A petitioner is eligible for a temporary exemption for the 
period beginning at the start of the first year of operation and 
terminating at the beginning of the first year in which a DELTA is zero 
or less.
    (d) Information on parameters used in the calculations. (1) All 
estimated expenditures, except fuel, shall be expressed in real terms 
(unadjusted for inflation) by using the prices in effect at the time the 
petition is submitted. Instructions for fuel price calculations are 
contained in appendix II.
    (2) Capital investment yearly cash outlays (Ii) must 
include all items that are capital investments for Federal income tax 
purposes. All purchased equipment that has a useful life greater than 
one year, capitalized engineering costs, land, construction, 
environmental offsets, fuel inventory, transmission facilities, piping, 
etc., that are necessary for the operation of the unit must be included. 
However, an item must only be included if a cash outlay is required 
after the decision has been made to build the unit; sunk costs must not 
be included (e.g., if the firm owns the land, its purchase price may not 
be included).

    Note: The guidelines for the fuel inventory for powerplants not 
using natural gas shall be: (a) All powerplants with only steam driven 
turbines--78 days, (b) all powerplants with only combustion turbines--
142 days, (c) all powerplants with combined cycles--both steam driven 
turbines and combustion turbines--142 days. The guidelines for the fuel 
inventory for installations not using natural gas shall be the greater 
of: (1) 21 days fuel supply, or (2) sufficient fuel to fill sixty (60) 
percent of the storage volume. The guidelines for the fuel inventory for 
all facilities using natural gas shall be zero unless the gas supply is 
interruptible in which case an appropriate inventory of back-up fuel 
must be included. Other inventory levels may be used if they are more 
appropriate than these guidelines; however, the source or derivation of 
these levels must be discussed in the evidential summary.


[[Page 43]]


    (3)(i) The annual cash outlays for operations and maintenance 
expense (OMi) and fuel expense (FLi) for a 
powerplant may be computed by one of the following three methods; 
however, the one chosen must be consistently applied throughout the 
analysis.
    (A) Assume the energy produced by the powerplant equals seventy (70) 
percent of design capacity times 8760 hours for each year during the 
life of the powerplant, and compute cash outlays for operations, 
maintenance, and fuel expenses for the powerplant.
    (B) Economically dispatch the new powerplant. The cash outlays for 
operations, maintenance, and fuel expenses of all powerplants being 
dispatched (where oil and natural gas are priced according to the 
procedures of appendix II \1\) are the corresponding expenses for the 
purpose of the cost calculation. The dispatch analysis area must be that 
area with which the firm currently dispatches, anticipates dispatching, 
and will be interconnected. It must also include all anticipated 
exchanges of energy with other utilities or powerpools. The outlays for 
operations, maintenance, and fuel may also be estimated using a 
methodology that incorporates the benefits of economically dispatching 
units and provides consistent treatment in the alternate fuel and oil or 
natural gas cases being compared.
    (C) Use a dispatch analysis to project the energy produced by the 
powerplant for a representative (not atypical) year of operation when 
consuming an alternate fuel. Compute the cash outlays for operations, 
maintenance, and fuel expenses for the powerplant based upon the level 
of energy production estimated for the representative year. The dispatch 
analysis and fuel expenses for the cost calculation must include oil and 
natural gas priced according to the procedures of appendix II. \1\
    (ii) When computing the annual cash outlays for operations and 
maintenance expense (OMi) and fuel expense (FLi) 
for an installation, specify the firing rates and the length of time 
each firing rate will be maintained.
    (4) The discount rate (k) for analyses is 2.9 percent or that which 
is computed as specified in appendix I. The method of computing the 
inflation index (IX) is shown in appendix II to part 504. OFE will 
modify these specified rates from time to time as required by changed 
conditions after public notice and an opportunity to comment. However, 
the relevant set of specified rates for a specific petition for 
exemption will be the set in effect at the time the petition is 
submitted or the set in effect at the time a decision is rendered, 
whichever set is more favorable to the petitioner.
    (5)(i) The guidelines for the useful life (N) of all powerplants 
except nuclear will be thirty-five (35) years. The guidelines for the 
useful life of a nuclear powerplant will be forty (40) years. The 
guidelines for the useful life of major fuel burning installations will 
be forty (40) years. Other useful life projections may be used if they 
are more appropriate than these guidelines; however, the source or 
derivation of these projections must be contained in the evidential 
summary. The summary should include a discussion of engineering, 
economic historical or other evidence.
    (ii) If the units being compared have different useful lives, the 
petitioner will have to modify his calculation so that the two cash 
flows being compared have the length of the shorter useful life. To do 
this, (A) use the shorter of the two useful lives in Equations 2 and 5 
for both units, and (B) multiply capital investment (I) of the unit with 
the longer life (computed with Equation 3) by the following adjustment 
factor (A):
[GRAPHIC] [TIFF OMITTED] TC01OC91.002

where:

R=The useful life of the facility with the longer life.
Q=The useful life of the facility with the shorter life.
k=The discount rate (see paragraph (d)(4) above).

    (6) All Federal investment tax credits (ITCi) and 
depreciation (PRi) values are those used for Federal income 
tax purposes and must be applied consistently throughout the analysis 
and in a manner consistent with the Federal tax

[[Page 44]]

laws. All investment tax credits allowed under Federal tax law must be 
reflected in the computations. The petitioner must use the method of 
depreciation which results in the greatest present value of the cash 
flow due to the tax and depreciation effect. The marginal income tax 
rate (ti) is the firm's anticipated marginal Federal income 
tax rate in year i. The relevant investment tax credits, depreciation 
methodology, and marginal Federal income tax rates for a specific 
exemption petition will be those prescribed by Federal law in effect (or 
those tax parameters which are known with certainty will be in effect) 
at the time a decision is rendered. (However, if an investment tax 
credit expires in a certain year under the law which is in effect at the 
time the petition is submitted, the petitioner must assume that it will 
in fact expire in that year.)
    (7) If powerplants are being compared, the design capacities or the 
maximum sustained energy per unit of time that could be produced must be 
the same. If installations are being compared, the maximum sustained 
energy per unit of time that could be produced must be the same.
    (8) All estimated cash outlays must be computed in accordance with 
generally accepted accounting principles consistently applied.
    (9) The scope of the estimates of relevant costs (as discussed 
above) of units being compared must be the same.
    (10) All allowances for uncertainty and risk in the cost estimates 
must be explicit.
    (11) All cash outlays must be net of any government subsidies or 
grants.
    (e) Evidence in support of the cost calculation. Petitioners for an 
exemption which requires the use of the cost calculation shall certify 
that the cost of using alternate fuel substantially exceeds the cost of 
using oil as primary energy source as calculated in this section. A 
brief summary of the petitioner's supporting calculations and estimates 
shall be submitted with the certification. The summary should include 
the following:
    (1) Cash outlays, Investment tax credits, depreciation 
methodologies, and anticipated salvage for capital investments including 
a description of all major construction and equipment;
    (2) Annual cash outlays for operations and maintenance expenses 
including the formulas used to compute them; and
    (3) Annual cash outlays for delivered fuel expenses including the 
formulas used to compute them.

[46 FR 59903, Dec. 7, 1981; 46 FR 63033, Dec. 30, 1981; 47 FR 15314, 
Apr. 9, 1982; 54 FR 52893, Dec. 22, 1989]



Sec. 503.7  State approval--general requirement for new powerplants.

    (a) Where approvals by the appropriate State regulatory authority 
are required prior to the construction or use of a new powerplant, a 
petition for an exemption for consideration by OFE may be submitted to 
OFE prior to obtaining such approvals from the State regulatory 
authority.
    (b) An exemption granted for a powerplant shall not become effective 
until an adequate demonstration has been made to OFE that all applicable 
approvals required by the State regulatory authorities have been 
obtained.



Sec. 503.8  No alternate power supply--general requirement for certain exemptions for new powerplants.

    (a) Application. To qualify for an exemption, except in the case of 
an exemption for cogeneration units, section 213(c) of the Act requires 
a demonstration that, despite reasonable good faith efforts, there is no 
alternative supply of electric power available within a reasonable 
distance at a reasonable cost without impairing short-run or long-run 
reliability of service. If a petitioner is unable to demonstrate that 
there is no alternate supply during the first year of operation, OFE 
will conclude that the absence of the proposed powerplant will not 
impair short-term reliability of service, and as a result will not grant 
the exemption. Such action would not impair long-term reliability of 
service, since a petition may be submitted for a powerplant that would 
begin operation in a subsequent year.
    (b) Criteria. To meet the demonstration required under paragraph (a) 
of this section, a petitioner must certify that:

[[Page 45]]

    (1) A diligent effort has been made to purchase firm power for the 
first year of operation to cover all or part of the projected shortfall 
at a cost that is less than ten (10) percent above the annualized cost 
of generating power from the proposed plant (including the capital, 
operation and maintenance expenses, and fuel prices); and
    (2)(i) Despite these efforts, the reserve margin in the petitioner's 
electric region, normal dispatch area, or service area, in the absence 
of the proposed plant, would fall below twenty (20) percent during the 
first year of proposed operation; or
    (ii) Despite these efforts, the reserve margin will be greater than 
twenty (20) percent but reliability of service would be impaired. In 
such case, the certification must be related to factors not included in 
the calculation of reserve margin, such as transmission constraints.
    (c) Evidence. The petition must include the following evidence in 
order to make the demonstration required by this section:
    (1) Duly executed certification required under paragraph (b) of this 
section; and
    (2) Exhibits containing the basis for the certification submitted 
under this section (including those factual and analytical materials 
deemed by the petitioner to be sufficient to support its certification 
to this general requirement).
    (d) FERC consultation. OFE will forward a copy of any petition for 
which a showing is required under this section to FERC promptly after it 
is filed with OFE, and OFE will consult with FERC before making the no 
alternate supply of power finding.

[46 FR 59903, Dec. 7, 1981, as amended at 47 FR 15314, Apr. 9, 1982; 54 
FR 52894, Dec. 22, 1989]



Sec. 503.9  Use of mixtures--general requirement for certain permanent exemptions.

    (a) Criteria. To qualify for a permanent exemption, except in the 
case of an exemption for fuel mixtures, section 213(a)(1) of the Act 
requires a demonstration that the use of a mixture of natural gas and 
petroleum and an alternate fuel for which an exemption under 10 CFR 
503.38 (Fuel mixtures) would be available, would not be economically or 
technically feasible.
    (b) Evidence. The petition must include the following evidence in 
order to make the demonstration required by this section:
    (1) Duly executed certifications to the criteria set forth in 
paragraph (a) of this section; and
    (2) Exhibits containing the basis for the certifications submitted 
under this section (including those factual and analytical materials 
deemed by the petitioner to be sufficient to support its certifications 
to this general requirement.)

    Note: In meeting this general requirement, OFE will require a 
petitioner to examine only mixtures of oil and coal and natural gas and 
coal, or, where petitioner wishes to examine an additional or substitute 
mixture, such other alternate fuels as OFE and the petitioner agree are 
reasonable to petitioner's circumstances.

[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989]



Sec. 503.10  Use of fluidized bed combustion not feasible--general requirement for permanent exemptions.

    (a) OFE finding. Except in the case of an exemption for fuel 
mixtures, OFE may deny permanent exemptions authorized under section 212 
of the Act if OFE finds on a site-specific or generic basis that use of 
a method of fluidized bed combustion of an alternate fuel is 
economically and technically feasible.
    (b) Demonstration. If OFE has made such a finding, OFE will deny a 
petitioner's request for exemption unless the petitioner demonstrated 
that the use of a method of fluidized bed combustion is not economically 
or technically feasible. The petition or any supplement thereto required 
by OFE must include the following evidence:
    (1) If use of a method of fluidized bed combustion were to be 
required, evidence that the petitioner would be eligible for a permanent 
exemption for lack of alternate fuel supply, site limitations, 
environmental requirements, lack of adequate capital, or State or local 
requirements; or

[[Page 46]]

    (2) Use of a method of fluidized bed combustion is not technically 
or economically feasible due to design or special circumstances.

[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989]



Sec. 503.11  Alternative sites--general requirement for permanent exemptions for new powerplants.

    (a) Criteria. To qualify for permanent exemption due to lack of 
alternate fuel supply, site limitations, environmental requirements, or 
inadequate capital, section 212(a) of the Act requires a demonstration 
that one of these exemptions would be available for any reasonable 
alternative site for the facility.
    (b) Evidence. The petition must include the following evidence in 
order to make the demonstration required by this section:
    (1) Duly executed certifications to the criteria set forth in 
paragraph (a) of this section; and
    (2) Exhibits containing the basis for the certifications submitted 
under this section (including those factual and analytical materials 
deemed by the petitioner to be sufficient to support its certifications 
to this general requirement).

[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989]



Sec. 503.12  Terms and conditions; compliance plans.

    (a) Terms and conditions generally. A petitioner must comply with 
any terms and conditions imposed upon the grant of an exemption 
petition. OFE will limit any such terms and conditions to the unit(s) 
which is the subject of the petition.
    (b) Compliance plans for temporary exemptions. (1) Any compliance 
plan required to accompany a petition for a temporary exemption shall 
include the following:
    (i) A detailed schedule of progressive events and the dates upon 
which the events are to take place, indicating how compliance with the 
applicable prohibitions of the Act will occur;
    (ii) Evidence of binding contracts for fuel, or for facilities for 
the production of fuel, which are required for compliance with the 
applicable prohibitions of the Act;
    (iii) A schedule indicating how any necessary permits and approvals 
required to burn an alternate fuel will be obtained; and
    (iv) Any other documentary evidence which indicates an ability to 
comply with the applicable prohibitions of the Act.
    (2) Any exemption for which a compliance plan is required shall not 
be effective until the compliance plan is approved by DOE.
    (3) If the petition is granted, an updated, duly executed plan must 
be submitted to OFE within one (1) month of an alteration of any 
milestone in the compliance plan, together with the reasons for the 
alteration and its impact upon the scheduling of all other milestones in 
the plan.



Sec. 503.13  Environmental impact analysis.

    In order to enable OFE to comply with NEPA, a petitioner must 
include the information indicated in this section if a permanent 
exemption is requested. Material which has been prepared pursuant to any 
Federal, State or local requirement for environmental information for 
this unit or site may be incorporated by reference and appended to the 
petition. Guidelines issued by OFE for environmental reports should be 
used in preparing this analysis (44 FR 63740, November 5, 1979). These 
guidelines, which are also available in the OFE public document room, 
have been designed to insure that environmental reports follow the 
format prescribed by Council on Environmental Quality final regulations 
implementing NEPA. The guidelines are subject to discussion at a 
prepetition conference and to modification according to the facts of a 
particular case.
    (a) All petitions for permanent exemptions must contain the 
following information:
    (1) A description of the facility, including site location, and 
surroundings, alternative site(s), the facility's current proposed 
operations, its

[[Page 47]]

fuel capability, and its pollution abatement systems and equipment 
(including those systems and equipment necessary for all fuel scenarios 
considered);
    (2) A description of the existing environment, including air, water, 
and land resources;
    (3) Direct and indirect environmental impacts of the proposed action 
including impacts of alternative fuel scenarios, and no build 
alternatives.
    (4) Regulatory requirements governing the facility, including a 
description of Federal, State and local requirements for air, water, 
noise and solid waste disposal which must be met for each fuel 
considered.
    (b) For exemptions for cogeneration, the information enumerated 
below is to be submitted in lieu of the information required by 
paragraph (a) of this section. However, submission of the following 
information merely establishes a rebuttable presumption that the grant 
or denial of the exemption would have no significant environmental 
impact. OFE may, in individual cases, during the course of the 
administrative proceeding, determine that additional environmental 
information is required. In such cases, the petitioner will be required 
to submit the information described in paragraph (a) of this section.
    (1) A certification that the petitioner will, prior to operating the 
unit under the exemption, secure all applicable environmental permits 
and approvals pursuant to, but not limited to, the following: Clean Air 
Act, Rivers and Harbors Act, Coastal Zone Management Act, Safe Drinking 
Water Act, Resource Conservation and Recovery Act; and
    (2) Information required by the following environmental checklist 
must be provided and certified as accurate:

    Environmental Checklist for FUA Certification Exemptions 
Instructions
    All questions are to be answered by placing a check in the 
appropriate box. N/A represents (not applicable). Although it is not 
required, the petitioner may elaborate on any question in writing on a 
separate sheet of paper.

------------------------------------------------------------------------
                                                 Yes       No      N/A
------------------------------------------------------------------------
(1) Is your facility located in, or will it
 affect a wetland (Protection of Wetlands
 Executive Order No. 11990)?.................
(2) Is your facility located in, or will it
 affect, a 100-year floodplain (Floodplain
 Management Executive Order No. 11988)?......
(3) Will your facility affect a designated
 wild, scenic, or recreation river (Wild and
 Scenic Rivers Act)?.........................
(4)(A) Is your facility located within a
 county in which critical habitat for
 threatened or endangered species are known
 to exist (Endangered Species Act)?..........
(4)(B) Has a qualified biologist determined
 that your facility will not affect any
 species on the Threatened and Endangered
 Species list?...............................
(5) Is your facility located on, or will it
 affect land that has been classified as
 prime or unique farmland or rangeland by the
 U.S. Department of Agriculture?.............
(6) Is your facility located on, or will it
 affect, historical archaeological, or
 cultural resources that have been designated
 pursuant to the National Historic
 Preservation Act?...........................
------------------------------------------------------------------------


[46 FR 59903, Dec. 7, 1981, as amended at 47 FR 15315, Apr. 9, 1982; 51 
FR 18866, May 22, 1986; 52 FR 658, Jan. 7, 1987; 54 FR 52894, Dec. 22, 
1989]



Sec. 503.14  Fuels search.

    Prior to submitting a petition for a permanent exemption for lack of 
alternate fuel supply, site limitations, inadequate capital, or state or 
local requirements, a petitioner must examine the use of conventional 
solid coal as a primary energy source at the site under consideration, 
and at reasonable alternative sites. Where a petitioner believes that 
its use of such coal would be infeasible, however, and where OFE and the 
petitioner can reach accord, it may evaluate use of a different 
alternate fuel in lieu of solid coal. A petitioner of these exemptions 
must demonstrate for any fuel examined that he would qualify for an 
exemption.

[54 FR 52894, Dec. 22, 1989]

[[Page 48]]



            Subpart C_Temporary Exemptions for New Facilities



Sec. 503.20  Purpose and scope.

    (a) This subpart implements the provisions contained in section 211 
of the Act with regard to temporary exemptions for new facilities.
    (b) This subpart establishes the criteria and standards which owners 
or operators of new powerplants who petition for a temporary exemption 
must meet to sustain their burden of proof under the Act.
    (c) All petitions for temporary exemptions shall be submitted in 
accordance with the procedures set out in part 501 of this chapter and 
the applicable requirements of part 503 of these regulations.
    (d) The duration of any temporary exemption granted under this 
subpart shall be measured from the date that the facility is placed in 
service using petroleum or natural gas.

[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989]



Sec. 503.21  Lack of alternate fuel supply.

    (a) Eligibility. Section 211(a)(1) of the Act provides for a 
temporary exemption due to the unavailability of an adequate and 
reliable supply of an alternate fuel at a cost which does not 
substantially exceed the cost of using imported petroleum. To qualify, a 
petitioner must certify that:
    (1) A good faith effort has been to obtain an adequate and reliable 
supply of an alternate fuel of the quality necessary to conform to the 
design and operational requirements of the unit;
    (2) For the period of the proposed exemption, the cost of using such 
alternate fuel would substantially exceed the cost of using imported 
petroleum as a primary energy source as defined in Sec. 503.6 (Cost 
calculation) of these regulations;
    (3) The petitioner will be able to comply with the applicable 
prohibitions of the Act at the end of the proposed exemption period; and
    (4) No alternate power supply exists, as required under Sec. 503.8 
of these regulations.
    (b) Evidence required in support of a petition. The petition must 
include the following evidence in order to make the demonstration 
required by this section:
    (1) Duly executed certifications required under paragraph (a) of 
this section;
    (2) Exhibits containing the basis for the certifications required 
under paragraph (a) of this section (including those factual and 
analytical materials deemed by the petitioner to be sufficient to 
support the granting of this exemption);
    (3) All data required by Sec. 503.6 (cost calculation) of these 
regulations necessary for computing the cost calculation formula; and
    (4) The anticipated duration of the lack of alternate fuel supply 
which constitutes the basis for the exemption.
    (c) Duration. This temporary exemption, taking into account any 
extensions or renewals, may not exceed 10 years.

[46 FR 59903, Dec. 7, 1981, as amended at 47 FR 15315, Apr. 9, 1982; 54 
FR 52894, Dec. 22, 1989]



Sec. 503.22  Site limitations.

    (a) Eligibility. Section 211(a)(2) of the Act provides for a 
temporary exemption due to a site limitation. To qualify for such an 
exemption, a petitioner must certify that:
    (1) One or more specific physical limitations relevant to the 
location or operation of the proposed facility exist which, despite 
diligent good faith efforts, cannot be overcome before the end of the 
proposed exemption period;
    (2) The petitioner will be able to comply with the applicable 
prohibitions of the Act at the end of the proposed exemption period; and
    (3) No alternate power supply exists, as required under Sec. 503.8 
of these regulations.

    Note: Examples of the types of site limitations to which a 
petitioner may certify in order to qualify for this exemption include:

    (i) Inaccessability of alternate fuels as a result of a specific 
physical limitation;
    (ii) Unavailability of transportation facilities for alternate 
fuels;

[[Page 49]]

    (iii) Unavailability of adequate land or facilities for handling, 
using, or storing an alternate fuel;
    (iv) Unavailability of adequate land or facilities for controlling 
and disposing of wastes, including pollution control equipment or 
devices necessary to assure compliance with applicable environmental 
requirements;
    (v) Unavailability of adequate and reliable supply of water, 
including water for use in compliance with applicable environmental 
requirements; or
    (vi) Other site limitations exist which will not permit the location 
or operation of the proposed unit using an alternate fuel.
    (b) Evidence required in support of a petition. The petition must 
include the following evidence in order to make the demonstration 
required by this section:
    (1) Duly executed certifications required under paragraph (a) of 
this section;
    (2) Exhibits containing the basis for the certifications required 
under paragraph (a) of this section (including those factual and 
analytical materials deemed by the petitioner to be sufficient to 
support the granting of this exemption); and
    (3) The anticipated duration of the site limitation which 
constitutes the basis for the exemption.
    (c) Duration. This temporary exemption, taking into account any 
extensions and renewals, may not exceed five years.

[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989]



Sec. 503.23  Inability to comply with applicable environmental requirements.

    (a) Eligibility. Section 211(a)(3) of the Act provides for a 
temporary exemption due to an inability to comply with applicable 
environmental requirements. To qualify a petitioner must demonstrate 
that despite diligent good faith efforts:
    (1) The petitioner will be unable, as of the projected date of 
commencement of operation, to comply with the applicable prohibitions of 
the Act without violating applicable Federal or State environmental 
requirements; and
    (2) The petitioner will be able to comply with the applicable 
prohibitions of the Act and with applicable environmental requirements 
by the end of the temporary exemption period.

    Note: (1) For purposes of considering an exemption under this 
section, OFE's decision will be based solely on an analysis of the 
petitioner's capacity to physically achieve applicable environmental 
requirements. The petition should be directed toward those conditions or 
circumstances which make it physically impossible to comply during the 
temporary exemption period. The cost of compliance is not relevant, but 
cost-related considerations may be presented as part of a demonstration 
submitted under Sec. 503.21.
    (2) Prior to submitting an exemption petition, it is recommended 
that a meeting be requested with OFE and EPA or the appropriate State or 
local regulatory agency to discuss options for operating an alternate 
fuel fired facility in compliance with applicable environmental 
requirements.

    (b) Evidence required in support of a petition. The petition must 
include the following evidence in order to make the demonstration 
required by this section:
    (1) Where the petitioner has applied for a construction permit from 
EPA or an appropriate State agency prior to petitioning for an exemption 
under this section, a copy of that application and synopsis of 
supporting documents filed with or subsequent to that application must 
be submitted to OFE with the petition or at the time filed with the 
permitting agency;
    (2) To the extent applicable, a copy of the EPA or State denial of 
the construction permit application;
    (3) To the extent applicable, a synopsis of the administrative 
record of the EPA or State or local permit proceedings;
    (4) To the extent applicable, a summary of the technology upon which 
the denial was based, including a performance comparison between the 
proposed technology and that technology which would provide the maximum 
possible reduction of pollution;
    (5) An examination of the environmental compliance of the facility, 
including an analysis of its ability to meet applicable standards and 
criteria when using both the proposed fuel and the alternate fuel(s) 
which would provide the basis for exemption. All such analysis must be 
based on accepted analytical techniques, such as air quality

[[Page 50]]

modeling, and reflect current conditions of the area which would be 
affected by the facility. The petitioner is responsible for obtaining 
the necessary data to accurately characterize these conditions. 
Environmental compliance must be examined in the context of available 
pollution control equipment which would provide the maximum possible 
reduction of pollution. The analysis must contain: (i) Requests for bids 
and other inquiries made and responses received by the petitioner 
concerning the availability and performance of pollution control 
equipment; (ii) contracts signed, if any, for an alternate fuel supply 
and for the purchase and installation of pollution control equipment; or 
(iii) other comparable evidence such as technical studies documenting 
the efficacy of equipment to meet applicable requirements;
    (6) An examination of any regulatory options available to the 
petitioner in seeking to achieve environmental compliance (such as 
offsets, variances, and State Implementation Plan revisions);
    (7) Any other documentation which demonstrates an inability to 
comply with applicable environmental requirements;
    (8) No alternate power supply exists, as required under Sec. 503.8 
of these regulations.
    (c) Duration. This temporary exemption, taking into account any 
extension and renewals, may not exceed 5 years.
    (d) Certification alternative. (1) To qualify for this exemption, in 
lieu of meeting the evidentiary requirements of paragraph (b) of this 
chapter, a petitioner may certify that, for the period of the exemption:
    (i) The site for the facility is or will be located in a Class I 
area or Class II area in which the allowable increment established by 
law has been consumed, as defined in part C of the Clean Air Act; the 
use of an alternate fuel will cause or contribute to concentrations of 
pollutants which would exceed the maximum allowable increases in a Class 
I or Class II area even with the application of best available control 
technology; the site for the facility is or will be located in a non-
attainment area as defined in part D of the Clean Air Act for any 
pollutant which would be emitted by the facility; or, even with the 
application of the lowest achievable emission rate, the use of an 
alternate fuel will cause or contribute to concentrations in an air 
quality control region, of a pollutant for which any national ambient 
air quality standard is or would be exceeded; and
    (ii) No alternate power supply exists, as required under Sec. 503.8 
of these regulations.
    (2) A petition by certification under this paragraph must include:
    (i) Duly executed certifications required under paragraph (d)(1) of 
this section;
    (ii) Exhibits containing the basis for the certifications required 
under paragraph (d)(1) of this section (including those factual and 
analytical materials deemed by the petitioner to be sufficient to 
support the granting of this exemption); and
    (iii) The anticipated duration of the circumstances which constitute 
the basis for the exemption.

[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989]



Sec. 503.24  Future use of synthetic fuels.

    (a) Eligibility. Section 211(b) of the Act provides for a temporary 
exemption based upon the future use of synthetic fuels. To qualify, a 
petitioner must certify that:
    (1) The petitioner will be able to comply with the applicable 
prohibitions imposed by the Act by the use of a synthetic fuel derived 
from coal or another alternate fuel as a primary energy source in the 
proposed facility by the end of the proposed exemption period;
    (2) The petitioner will not be able to comply with the applicable 
prohibitions imposed by the Act by use of a synthetic fuel until the end 
of the proposed exemption period; and
    (3) No alternate power supply exists, as required under Sec. 503.8 
of these regulations.
    (b) Evidence required in support of a petition. The petition must 
include the following evidence in order to make the demonstration 
required by this section:
    (1) Duly executed certifications required under paragraph (a) of 
this section;

[[Page 51]]

    (2) Exhibits containing the basis for the certifications required 
under paragraph (a) of this section (including those factual and 
analytical materials deemed by the petitioner to be sufficient to 
support the granting of this exemption); and
    (3) A preliminary compliance plan, including to the extent 
available, the information required under Sec. 503.12.
    (c) Final Compliance Plan. Before an exemption may become effective, 
the petitioner must submit and OFE must approve a final compliance plan 
as required by Sec. 503.12.
    (d) Duration. This temporary exemption may be granted for a period 
of up to ten (10) years. Unless the petitioner requests otherwise, any 
temporary exemption from the fuel use prohibitions of the Act for the 
future use of synthetic fuels will commence on the date of commercial 
operation of the facility.

    Note: Contracts based on the anticipated successful demonstration of 
a development program and/or the anticipated economic feasibility of a 
synthetic fuels facility, will generally be sufficient to meet the 
``binding contract'' requirements for this exemption.

[46 FR 59903, Dec. 7, 1981; 47 FR 15315, Apr. 9, 1982; 54 FR 52894, Dec. 
22, 1989]



Sec. 503.25  Public interest.

    (a) Eligibility. Section 211(c) of the Act provides for a temporary 
public interest exemption. To qualify, a petitioner must demonstrate 
that:
    (1) The unit will be capable of complying with the applicable 
prohibitions at the end of the proposed exemption period;
    (2) The granting of the exemption would be in accord with the 
purposes of the Act and would be in the public interest; and
    (3) No alternate power supply exists, as required under Sec. 503.8 
of these regulations.
    (b) Evidence required in support of a petition. The petition must 
include the following evidence in order to make the demonstration 
required by this section:
    (1) Substantial evidence to corroborate the eligibility requirements 
identified above; and
    (2) The anticipated duration of the circumstances which constitute 
the basis for the exemption.
    (c) Certification alternative. If the petitioner requires use of oil 
or natural gas in a unit, during the construction of an alternate-fuel 
fired unit, the petitioner may substitute, in lieu of the evidentiary 
requirements of paragraphs (b)(1) and (2) of this section:
    (1) A duly executed certification, including the requested duration 
of the exemption, that the unit will be operated on oil or natural gas 
only during the construction of an alternate fuel fired unit to be owned 
or operated by the petitioner; and
    (2) Exhibits containing the basis for the certifications required 
under paragraph (c)(1) of this section (including those factual and 
analytical materials deemed by the petitioner to be sufficient to 
support the granting of this exemption).
    (d) Duration. This temporary exemption, taking into account 
extension and renewals, may not exceed 5 years.

[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989]



            Subpart D_Permanent Exemptions for New Facilities



Sec. 503.30  Purpose and scope.

    (a) This subpart implements the provisions contained in section 212 
of the Act with regard to permanent exemptions for new facilities.
    (b) This subpart establishes the criteria and standards which owners 
or operators of new powerplants and installations who petition for a 
permanent exemption must meet to sustain their burden of proof under the 
Act.
    (c) All petitions for permanent exemptions for new facilities shall 
be submitted in accordance with the procedures set out in part 501 of 
this chapter and the applicable requirements of part 503 of these 
regulations.



Sec. 503.31  Lack of alternate fuel supply for the first 10 years of useful life.

    (a) Eligibility. Section 212(a)(1)(A)(i) of the Act provides for a 
permanent exemption due to lack of an adequate and reliable supply of 
alternate fuel within the first 10 years of useful life of the proposed 
unit. To qualify, a petitioner must certify that:

[[Page 52]]

    (1) A good faith effort has been made to obtain an adequate and 
reliable supply of an alternate fuel for use as a primary energy source 
of the quality and quantity necessary to conform with the design and 
operational requirements of the unit;
    (2) Such a supply is not likely to be available within the first 10 
years of useful life of the proposed unit;
    (3) No alternate power supply exists, as required under Sec. 503.8 
of these regulations;
    (4) Use of mixtures is not feasible, as required under Sec. 503.9 
of these regulations; and
    (5) Alternative sites are not available, as required under Sec. 
503.11 of these regulations.
    (b) Evidence required in support of a petition. A petition must 
include the following evidence in order to make the demonstration 
required by this section:
    (1) Duly executed certifications required under paragraph (a) of 
this section;
    (2) Exhibits containing the basis for the certifications required 
under paragraph (a) of this section (including those factual and 
analytical materials deemed by the petitioner to be sufficient to 
support the granting of this exemption);
    (3) Environmental impact analysis, as required under Sec. 503.13 of 
these regulations; and
    (4) Fuels search, as required under Sec. 503.14 of these 
regulations.

[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52895, Dec. 22, 1989]



Sec. 503.32  Lack of alternate fuel supply at a cost which does not substantially exceed the cost of using imported petroleum.

    (a) Eligibility. Section 212(a)(1) (A)(ii) of the Act provides for a 
permanent exemption due to lack of an alternate fuel supply at a cost 
which does not substantially exceed the cost of using imported 
petroleum. To qualify a petitioner must certify that:
    (1) A good faith effort has been made to obtain an adequate and 
reliable supply of an alternate fuel for use as a primary energy source 
of the quality and quantity necessary to conform with the design and 
operational requirements of the proposed unit;
    (2) The cost of using such a supply would substantially exceed the 
cost of using imported petroleum as a primary energy source during the 
useful life of the proposed unit as defined in Sec. 503.6 (cost 
calculation) of these regulations;
    (3) No alternate power supply exists, as required under Sec. 503.8 
of these regulations.
    (4) Use of mixtures is not feasible, as required under Sec. 503.9 
of these regulations; and
    (5) Alternative sites are not available, as required under Sec. 
503.11 of these regulations.
    (b) Evidence required in support of a petition. The petition must 
include the following evidence in order to make the demonstration 
required by this section:
    (1) Duly executed certifications required under paragraph (a) of 
this section;
    (2) Exhibits containing the basis for certifications required under 
paragraph (a) of this section (including those factual and analytical 
materials deemed by the petitioner to be sufficient to support the 
granting of this exemption);
    (3) Environmental impact analysis, as required under Sec. 503.13 of 
these regulations;
    (4) Fuels search, as required under Sec. 503.14 of these 
regulations; and
    (5) All data required by Sec. 503.6 (cost calculation) of these 
regulations necessary for computing the cost calculation formula.

[46 FR 59903, Dec. 7, 1981, as amended at 47 FR 15315, Apr. 9, 1982; 54 
FR 52895, Dec. 22, 1989]



Sec. 503.33  Site limitations.

    (a) Eligibility. Section 212(a)(1)(B) of the Act provides for a 
permanent exemption due to site limitations. To qualify for such an 
exemption, a petitioner must certify that:
    (1) One or more specific physical limitations relevant to the 
location or operation of the proposed facility exist which, despite good 
faith efforts, cannot reasonably be expected to be overcome within five 
years after commencement of operations;

[[Page 53]]

    (2) No alternate power supply exists, as required under Sec. 503.8 
of these regulations;
    (3) Use of mixtures is not feasible, as required under Sec. 503.9 
of these regulations; and
    (4) Alternative sites are not available, as required under Sec. 
503.11 of these regulations.

    Note: Examples of the types of site limitations to which a 
petitioner may certify in order to qualify for this exemption include:
    (i) Inaccessibility of alternate fuels as a result of a specific 
physical limitation;
    (ii) Unavailability of transportation facilities for alternate 
fuels;
    (iii) Unavailability of adequate land or facilities for handling, 
using or storing an alternate fuel;
    (iv) Unavailability of adequate land or facilities for controlling 
and disposing of wastes, including pollution control equipment or 
devices necessary to assure compliance with applicable environmental 
requirements;
    (v) Unavailability of adequate and reliable supply of water, 
including water for use in compliance with applicable environmental 
requirements; or
    (vi) Other site limitations exist which will not permit the location 
or operation of the proposed unit using an alternate fuel.

    (b) Evidence required in support of the petition. A petitioner must 
include in the petition the following evidence in order to make the 
demonstration required by this section:
    (1) Duly executed certifications required under paragraph (a) of 
this section;
    (2) Exhibits containing the basis for the certifications required 
under paragraph (a) of this section (including those factual and 
analytical materials deemed by the petitioner to be sufficient to 
support the granting of this exemption);
    (3) Environmental impact analysis, as required under Sec. 503.13 of 
these regulations; and
    (4) Fuels search, as required under Sec. 503.14 of these 
regulations.

[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52895, Dec. 22, 1989]



Sec. 503.34  Inability to comply with applicable environmental requirements.

    (a) Eligibility. Section 212(a)(1)(C) of the Act provides for a 
permanent exemption due to the inability to comply with applicable 
environmental requirements. To qualify, a petitioner must demonstrate 
that despite good faith efforts:
    (1) The petitioner will be unable within 5 years after beginning 
operation, to comply with the applicable prohibitions imposed by the Act 
without violating applicable Federal or state environmental 
requirements; and
    (2) Reasonable alternative sites, which would permit the use of 
alternate fuels in compliance with applicable Federal or state 
environmental requirements, are not available.

    Note: (1) For purposes of considering an exemption under this 
section, OFE's decision will be based solely on an analysis of the 
petitioner's capacity to physically achieve applicable environmental 
requirements. The cost of compliance is not relevant, but cost-related 
considerations may be presented as part of a demonstration submitted 
under Sec. 503.32 (Lack of alternate fuel supply).
    (2) Prior to deciding to submit an exemption petition, it is 
recommended that a petitioner request a meeting with OFE and EPA or the 
appropriate state or local regulatory agency to discuss options for 
operating an alternate fuel-fired facility in compliance with the 
applicable environmental requirements.

    (b) [Reserved]
    (c) Evidence required in support of a petition. The petitioner must 
include in the petition the following evidence in order to make the 
demonstration required by this section:
    (1) Where the petitioner has applied for a construction permit from 
EPA or an appropriate state agency prior to petitioning for an exemption 
from OFE under this section, a copy of such application and a synopsis 
of all supporting documents filed with or subsequent to the application 
must be submitted to OFE with the petition or at the time filed with the 
permitting agency;
    (2) To the extent applicable, a copy of the EPA or state denial of 
the construction permit application;
    (3) To the extent applicable, a synopsis of the administrative 
record of the EPA or state or local permit proceedings;
    (4) To the extent applicable, a summary of the technology upon which 
the denial was based, including a performance comparison between the 
proposed technology and that technology which

[[Page 54]]

provides the maximum possible reduction of pollution;
    (5) An examination of the environmental compliance of the facility, 
including an analysis of its ability to meet applicable standards and 
criteria when using both the proposed fuel and the alternate fuel(s) 
which would provide the basis for the exemption. All such analysis must 
be based on accepted analytical techniques, such as air quality 
modeling, and reflect current conditions of the area which would be 
affected by the facility. The petitioner is responsible for obtaining 
the necessary data to accurately characterize these conditions. 
Environmental compliance must be examined in the context of available 
pollution control equipment which would provide the maximum possible 
reduction of pollution. The analysis must contain: (i) Requests for bids 
and other inquiries made and responses received by the petitioner 
concerning the availability and performance of pollution control 
equipment; or (ii) other comparable evidence such as technical studies 
documenting the efficacy of equipment to meet applicable requirements;
    (6) An examination of any regulatory options available to the 
petitioner in seeking to achieve environmental compliance (such as 
offsets, variances and State Implementation Plan (SIP) revisions); and
    (7) Any other documentation which demonstrates an inability to 
comply with applicable environmental requirements;
    (8) No alternate power supply exists as required under Sec. 503.8 
of these regulations;
    (9) Use of mixtures is not feasible, as required under Sec. 503.9 
of these regulations;
    (10) Alternative sites are not available, as required under Sec. 
503.11 of these regulations;
    (11) Environmental impact analysis, as required under Sec. 503.13 
of these regulations; and
    (12) Fuels search, as required under Sec. 503.14 of these 
regulations.
    (d) Certification alternative. (1) To qualify for this exemption, in 
lieu of meeting the evidentiary requirements of paragraph (c) of this 
section, a petitioner may certify that:
    (i) The site for the facility is or will be located in a Class I 
area or Class II area in which the allowable increment established by 
law has been consumed, as defined in part C of the Clean Air Act; the 
use of an alternate fuel will cause or contribute to concentrations of 
pollutants which would exceed the maximum allowable increases in a Class 
I or Class II area even with the application of best available control 
technology; the site for the facility is or will be located in a non-
attainment area as defined in part D of the Clean Air Act for any 
pollutant which would be emitted by the facility; or, even with the 
application of the lowest achievable emission rate, the use of an 
alternate fuel will cause or contribute to concentrations in an air 
quality control region of a pollutant for which any national ambient air 
quality standard is or would be exceeded;
    (ii) No alternate power supply exists, as required under Sec. 503.8 
of these regulations;
    (iii) Alternative sites are not available, as required under Sec. 
503.11 of these regulations; and
    (iv) Use of mixtures is not feasible, as required under Sec. 503.19 
of these regulations.
    (2) A petition by certification under this paragraph must include:
    (i) Duly executed certifications required under paragraph (d)(1) of 
this section;
    (ii) Exhibits containing the basis for the certifications required 
under paragraph (d)(1) of this section (including those factual and 
analytical materials deemed by the petitioner to be sufficient to 
support the granting of this exemption);
    (iii) Environmental impact analysis, as required under Sec. 503.13 
of these regulations; and
    (iv) Fuels search, as required under Sec. 503.14 of these 
regulations.

[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52895, Dec. 22, 1989]



Sec. 503.35  Inability to obtain adequate capital.

    (a) Eligibility. Section 212(a)(1)(D) of the Act provides for a 
permanent exemption due to inability to obtain adequate capital. To 
qualify, a petitioner must certify that:

[[Page 55]]

    (1) Despite good faith efforts the petitioner will be unable to 
comply with the applicable prohibitions imposed by the Act because the 
additional capital required for an alternate fuel-capable unit beyond 
that required for the proposed unit cannot be raised;
    (2) The additional capital cannot be raised:
    (i) Due to specific restrictions (e.g., convenants on existing 
bonds) which constrain management's ability to raise debt or equity 
capital;
    (ii) Without a substantial dilution of shareholder equity;
    (iii) Without an unreasonably adverse affect on the utility's credit 
rating; or
    (iv) In the case of non-investor-owned public utilities, without 
jeopardizing the utility's ability to recover its capital investment, 
through tariffs, without unreasonably adverse economic effect on its 
service area (such as adverse impacts on local industry or undue 
hardship to ratepayers).
    (3) No alternative power supply exists, as required under Sec. 
503.8 of these regulations;
    (4) Use of mixtures is not feasible, as required under Sec. 503.9 
of these regulations; and
    (5) Alternative sites are not available, as required under Sec. 
503.11 of these regulations.
    (b) Evidence required in support of a petition. A petition must 
include the following evidence in order to make the demonstration 
required by this section:
    (1) Duly executed certifications required under paragraph (a) of 
this section;
    (2) Exhibits containing the basis for the certifications required 
under paragraph (a) of this section (including those factual and 
analytical materials deemed by the petitioner to be sufficient to 
support the granting of this exemption);
    (3) Environmental impact analysis, as required under Sec. 503.13 of 
these regulations; and
    (4) Fuels search, as required under Sec. 503.14 of these 
regulations.

[46 FR 59903, Dec. 7, 1981, as amended at 47 FR 15315, Apr. 9, 1982; 54 
FR 52895, Dec. 22, 1989]



Sec. 503.36  State or local requirements.

    (a) Eligibility. Section 212(b) of the Act provides for an exemption 
due to certain State or local requirements. To qualify a petitioner must 
certify that:
    (1) With respect to the proposed site of the unit, the operation or 
construction of the new unit using an alternate fuel is infeasible 
because of a State of local requirement other than a building code, 
nuisance, or zoning law;
    (2) The petitioner has made a good faith effort to obtain a variance 
from the State or local requirement but has been unable to do so or has 
demonstrated why none is available;
    (3) The granting of the exemption would be in the public interest 
and would be consistent with the purposes of the Act;
    (4) The petitioner is not entitled to an exemption for lack of 
alternate fuel supply, site limitation, environmental requirements, or 
inability to obtain adequate capital at the site of the proposed 
powerplant or at any reasonable alternative site for the alternate 
fuel(s) considered;
    (5) At the proposed site and every reasonable alternative site where 
the petitioner is not entitled to an exemption for lack of alternate 
fuel supply, site limitation, environmental requirements, or inability 
to obtain adequate capital, the petitioner nevertheless would be barred 
at each such proposed or alternate site from burning an alternate fuel 
by reason of a State or local requirement;
    (6) No alternate power supply exists, as required under Sec. 503.8 
of these regulations; and
    (7) Use of mixtures is not feasible, as required under Sec. 503.9 
of these regulations.
    (b) Evidence required in support of a petition. The petition must 
include the following evidence in order to make the demonstration 
required by this section:
    (1) Duly executed certifications required under paragraph (a) of 
this section;
    (2) Exhibits containing the basis for the certifications required 
under paragraph (a) of this section (including those factual and 
analytical materials

[[Page 56]]

deemed by the petitioner to be sufficient to support the granting of 
this exemption);
    (3) Environmental impact analysis, as required under Sec. 503.13 of 
these regulations; and
    (4) Fuels search, as required under Sec. 503.14 of these 
regulations.

[46 FR 59903, Dec. 7, 1981; 46 FR 63033, Dec. 30, 1981, as amended at 54 
FR 52895, Dec. 22, 1989]



Sec. 503.37  Cogeneration.

    The following table may be used to determine eligibility for a 
permanent exemption based on oil and natural gas savings.

    Average Annual Utilization of Oil and Natural Gas for Electricity
                           Generation by State
                          [BTU's per KWHR sold]
------------------------------------------------------------------------
                                                                 Oil/gas
                          State name                             savings
                                                                 Btu/kWh
------------------------------------------------------------------------
Alabama.......................................................        33
Arizona.......................................................       802
Arkansas......................................................     1,363
California....................................................     3,502
Colorado......................................................       289
Connecticut...................................................     3,924
Delaware......................................................     3,478
Washington, DC................................................       895
Florida.......................................................     3,177
Georgia.......................................................        45
Idaho.........................................................         0
Illinois......................................................       250
Indiana.......................................................        53
Iowa..........................................................       147
Kansas........................................................       686
Kentucky......................................................        34
Louisiana.....................................................     4,189
Maine.........................................................     2,560
Maryland......................................................       895
Massachusetts.................................................     5,250
Michigan......................................................       256
Minnesota.....................................................       151
Mississippi...................................................     1,519
Missouri......................................................        57
Montana.......................................................        60
Nebraska......................................................       139
Nevada........................................................       761
New Hampshire.................................................     2,695
New Jersey....................................................     1,894
New Mexico....................................................     1,528
New York......................................................     4,219
North Carolina................................................        49
North Dakota..................................................        47
Ohio..........................................................        36
Oklahoma......................................................     5,180
Oregon........................................................         0
Pennsylvania..................................................       771
Rhode Island..................................................     1,800
South Carolina................................................        24
South Dakota..................................................        36
Tennessee.....................................................        20
Texas.........................................................     4,899
Utah..........................................................       107
Vermont.......................................................       105
Virginia......................................................       460
Washington....................................................         3
West Virginia.................................................       126
Wisconsin.....................................................        72
Wyoming.......................................................        75
------------------------------------------------------------------------


Data are based upon 1987 oil, natural gas and electricity statistics 
published by DOE's Energy Information Administration.

    Example: The proposed cogeneration project is to be located in 
Massachusetts and is to use distillate oil. It will have a capacity of 
50 MW, an average annual heat rate of 7600 BTU/KWHR, and be operated at 
a capacity factor of 90%. The annual fuel consumption is therefore 
calculated to be 2,996x10\9\ Btu/yr. (50,000 KWx7600 BTU/KWHRx.9x8760 
HR/YR) The oil and gas backed off the grid would be calculated to be 
.2070x10\9\ BTU/YR. (50,000 KWx5250 BTU/KWHRx.9x8760 HR/YR) since the 
proposed unit would consume more oil that would be ``backed off'' the 
grid, the unit would not be eligible for a permanent exemption based on 
savings of oil and natural gas.

[54 FR 52895, Dec. 22, 1989]



Sec. 503.38  Permanent exemption for certain fuel mixtures containing natural gas or petroleum.

    (a) Eligibility. Section 212(d) of the Act provides for a permanent 
exemption for certain fuel mixtures. To qualify a petitioner must 
certify that:
    (1) The petitioner proposes to use a mixture of natural gas or 
petroleum and an alternate fuel as a primary energy source;
    (2) The amount of petroleum or natural gas proposed to be used in 
the mixture will not exceed the minimum percentage of the total annual 
Btu heat input of the primary energy sources needed to maintain 
operational reliability of the unit consistent with maintaining a 
reasonable level of fuel efficiency; and
    (3) No alternate power supply exists, as required under Sec. 503.8 
of these regulations.
    (b) Evidence required in support of a petition. The petition must 
include the following evidence in order to make

[[Page 57]]

the demonstration required by this section:
    (1) Duly executed certifications required under paragraph (a) of 
this section;
    (2) Exhibits containing the basis for the certifications required 
under paragraph (a) of this section (including those factual and 
analytical materials deemed by the petitioner to be sufficient to 
support the granting of this exemption);
    (3) A description of the fuel mixture, including component fuels and 
the percentage of each such fuel to be used; and
    (4) Environmental impact analysis as required under Sec. 503.13 of 
these regulations.
    (c) Solar mixtures. OFE will grant a permanent mixtures exemption 
for the use of a mixture of solar energy (including wind, tide, and 
other intermittent sources) and petroleum or natural gas, where:
    (1) Solar energy will account for at least 20 percent of the total 
annual Btu heat input, of the primary energy sources of the unit; and
    (2) Petitioner meets the eligibility and evidentiary requirements of 
paragraphs (a) and (c) of this section.

[46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52896, Dec. 22, 1989]



Sec. Sec. 503.39-503.44  [Reserved]



PART 504_EXISTING POWERPLANTS--Table of Contents



Sec.
504.2 Purpose and scope.
504.3-504.4 [Reserved]
504.5 Prohibitions by order (certifying powerplants under section 301 of 
          FUA, as amended).
504.6 Prohibitions by order (case-by-case).
504.7 Prohibition against excessive use of petroleum or natural gas in 
          mixtures--electing powerplants.
504.8 Prohibitions against excessive use of petroleum or natural gas in 
          mixtures--certifying powerplants.
504.9 Environmental requirements for certifying powerplants.

Appendix I to Part 504--Procedures for the Computation of the Real Cost 
          of Capital
Appendix II to Part 504--Fuel Price Computation

    Authority: Department of Energy Organization Act, Pub. L. 95-91, 91 
Stat. 565 (42 U.S.C. Sec. 7101 et seq.); Powerplant and Industrial Fuel 
Use Act of 1978, Pub. L. 95-620, 92 Stat. 3289 (42 U.S.C. 8301 et seq.); 
Energy Security Act, Pub. L. 96-294, 94 Stat. 611 (42 U.S.C. 8701 et 
seq.); E.O. 1209, 42 FR 46267, Sept. 15, 1977.

    Source: 45 FR 53692, Aug. 12, 1980, unless otherwise noted.

(Approved by the Office of Management and Budget under control number 
1903-0075. See 46 FR 63209, Dec. 31, 1981)



Sec. 504.2  Purpose and scope.

    (a) Sections 504.5, 504.6, and 504.8, set forth the prohibitions 
that OFP, pursuant to section 301 of the Act, as amended, may impose 
upon existing powerplants after a review of the certification and 
prohibition order compliance schedule submitted by the owner or operator 
of a powerplant. Sections 504.5 and 504.8 are explanatory sections, and 
Sec. 504.6 provides the informational requirements necessary to support 
the certification.
    (b) Sections 504.6 and 504.7, set forth the prohibitions that OFP 
may impose upon certain electing powerplants, pursuant to former section 
301 (b) and (c) of FUA, where OFP can make the findings as to the unit's 
technical capability and financial feasibility to use coal or another 
alternate fuel as a primary energy source. The prohibitions may be made 
to apply to electing powerplants unless an exemption is granted by OFP 
under the provisions of the Final Rule for Existing Facilities (10 CFR 
parts 500, 501 and 504) published at 45 FR 53682, Aug. 12, 1980 and 46 
FR 59872, Dec. 7, 1981. Any person who owns, controls, rents or leases 
an existing electing powerplant may be subject to the prohibitions 
imposed by and the sanctions provided for in the Act or these 
regulations, if OFP can make the findings required by former section 301 
(b) and (c) of FUA.

(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42 
U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of 1978, 
Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus Budget 
Reconciliation Act of 1981, Pub. L. 97-35; E.O. 12009, 42 FR 46267, 
Sept. 15, 1977)

[47 FR 50849, Nov. 10, 1982]

[[Page 58]]



Sec. Sec. 504.3-504.4  [Reserved]



Sec. 504.5  Prohibitions by order (certifying powerplants under section 301 of FUA, as amended).

    (a) In the case of existing powerplants, OFP may prohibit, in 
accordance with section 301 of the Act, as amended, the use of petroleum 
or natural gas as a primary energy source where the owner or operator of 
the powerplant presents a complete certification concurred in by OFP. 
The certification, which may be presented at any time, pertains to the 
unit's technical capability and financial feasibility to use coal or 
another alternate fuel as a primary energy source in the unit. The 
informational requirements necessary to support a certification are 
contained in Sec. 504.6 of these regulations. A prohibition compliance 
schedule which meets the requirements of Sec. 504.5(d) shall also be 
submitted.
    (b) If OFP concurs with the certification, a prohibition order on 
the powerplant's use of petroleum or natural gas will be issued 
following the procedure outlined in Sec. 501.52 of these regulations.
    (c) The petitioner may amend its certification at any time prior to 
the effective date of the prohibitions contained in the final 
prohibition order in order to take into account changes in relevant 
facts and circumstances by following the procedure contained in Sec. 
501.52(d).
    (d) Prohibition order compliance schedule. The certification 
described above, which forms the basis for the issuance of a prohibition 
order to a powerplant, shall include a prohibition order compliance 
schedule. The compliance schedule should contain the following:
    (1) A schedule of progressive events involved in the conversion 
project, including construction of any facilities for the production of 
fuel or fuel handling equipment, and contracts for the purchase of 
alternate fuels, and estimated date of compliance with the applicable 
prohibitions of the Act; and
    (2) A schedule indicating estimated dates for obtaining necessary 
federal, state, and local permits and approvals. Any prohibition order 
issued under the certification provisions of Sec. Sec. 504.5, 504.6, 
and 504.8 will be subject to appropriate conditions subsequent so as to 
delay the effectiveness of the prohibitions contained in the final 
prohibition order until the above events or permits have occurred or 
been obtained.

(Approved by the Office of Management and Budget under control number 
1903-0077)

(Department of Energy Organization Act, Pub. L. 95-91 (42 U.S.C. 7101 et 
seq.); Energy Supply and Environmental Coordination Act of 1974, Pub. L. 
93-319, as amended by Pub. L. 94-163, Pub. L. 95-70, and Pub. L. 95-620 
(15 U.S.C. 719 et seq.); Powerplant and Industrial Fuel Use Act of 1978, 
Pub. L. 95-620, as amended by Pub. L. 97-35 (42 U.S.C. 8301 et seq.); 
Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35)

[47 FR 17044, Apr. 21, 1982]



Sec. 504.6  Prohibitions by order (case-by-case).

    (a) OFP may prohibit, by order, the use of natural gas or petroleum 
as a primary energy source in existing powerplants under certain 
circumstances. In the case of certifying powerplants under section 301 
of the Act, as amended, the petitioner must present evidence to support 
the certification, required by Sec. 504.6 (c), (d), (e), and (f). In 
the case of electing powerplants, OFP must make the following findings 
required by Sec. 504.6 (c), (d), (e), and (f), in order to issue a 
prohibition order to the unit, pursuant to former section 301 (b) or 
(c):
    (1) The unit currently has, or previously had, the technical 
capability to use an alternate fuel as a primary energy source;
    (2) The unit has this technical capability now, or it could have the 
technical capability without:
    (i) A substantial physical modification of the unit; or
    (ii) A substantial reduction in the rated capacity of the unit; and
    (3) It is financially feasible for the unit to use an alternate fuel 
as its primary energy source.
    (b) In the case of electing powerplants, OFP must make a proposed 
finding regarding the technical capability of a unit to use alternate 
fuel as identified in paragraph (a) (1) of this section prior to the 
date of publication of the notice of the proposed prohibition. OFP will 
publish this finding in

[[Page 59]]

The Federal Register along with the notice of the proposed prohibition.
    (c) Technical capability. (1) In the case of electing and certifying 
powerplants, OFP will consider ``technical capability'' on a case-by-
case basis in order to make the required finding. In the case of a 
certifying powerplant, the powerplant should present information to 
support the certification relevant to the considerations set forth 
below. OFP will consider the ability of the unit, from the point of fuel 
intake to physically sustain combustion of a given fuel and to maintain 
heat transfer. \2\
---------------------------------------------------------------------------

    \2\ OFP will not ordinarily consider the nature or absence of 
appurtenances outside the unit. For example, OFP will examine the 
furnace configuration and ash removal capability but will not normally 
consider the need to install pollution control equipment as a measure of 
technical capability. Furthermore, OFP will not normally conclude that 
the absence of fuel handling equipment, such as conveyor belts, 
pulverizers, or unloading facilities, bears on the issue of a unit's 
``technical capability'' to burn an alternate fuel.
---------------------------------------------------------------------------

    (2) OFP considers that a unit ``had'' the technical capability to 
use an alternate fuel if the unit was once able to burn that fuel 
(regardless of whether the unit was expressly designed to burn that fuel 
or whether it ever actually did burn it), but is no longer able to do so 
at the present due to temporary or permanent alterations to the unit 
itself. \3\
---------------------------------------------------------------------------

    \3\ For example, a unit which at one time burned solid coal but 
which could no longer do so because its coal firing ports and sluicing 
channels had been cemented over, would be classified as having ``had'' 
the technical capability to use coal. (The question of whether it again 
``could have'' such capability without ``substantial physical 
modification'' is a separate and additional question.)
---------------------------------------------------------------------------

    (3) A unit ``has'' the technical capability to use an alternate fuel 
if it can burn an alternate fuel, notwithstanding the fact that 
adjustments must be made to the unit beforehand or that pollution 
control equipment may be required to meet air quality requirements. \4\
---------------------------------------------------------------------------

    \4\ A unit designed to burn natural gas shall be presumed to have 
the technical capability to burn a synthetic fuel such as medium Btu gas 
from coal (assuming such gas is available unless convincing evidence to 
the contrary is submitted in rebuttal). Also a unit designed to burn oil 
may, depending upon the chemical characteristics, be a unit that ``has'' 
the technical capability to burn liquefied coal. The fact that certain 
adjustments may be necessary does not render this a ``hypothetical'' as 
opposed to a ``real'' capability. Even an oil fired unit converting from 
the use of 2 distillate to 6 residual oil may be 
required to adjust or replace burner nozzles and add soot blowers.
---------------------------------------------------------------------------

    (d) Substantial physical modification. In the case of electing and 
certifying powerplants, OFP will make its determination on whether a 
physical modification to a unit is ``substantial'' on a case-by-case 
basis. In the case of certifying powerplants, OFP will consider the 
factors set forth below for the purpose of concurrence in the 
certification. OFP will consider physical modifications made to the unit 
as ``substantial'' where warranted by the magnitude and complexity of 
the engineering task or where the modification would impact severely 
upon operations at the site. \5\ OFP will not, however, assess physical 
modification on the basis of cost.
---------------------------------------------------------------------------

    \5\ Generally, modification of a unit to burn coal or an alternate 
fuel will be considered insubstantial if significant alterations to the 
boiler, such as a change to the furnace configuration or a complete 
respacing of the tubes, are not required. Minor alterations such as 
replacement of burners or additions of soot blowers, and additions or 
alterations outside the boiler, shall not cause the modification to be 
substantial.
---------------------------------------------------------------------------

    (e) Substantial reduction in rated capacity. In the case of electing 
and certifying powerplants, OFP will make this determination on the 
basis of the following factors. A certifying powerplant should present 
information to support its certification regarding these factors in 
order for OFP to make its review for concurrence.
    (1) OFP regards a unit's derating of 25 percent or more, as a result 
of converting a unit from oil or gas to an alternate fuel, as 
substantial.
    (2) OFP will presume that a derating of less than 10 percent, as a 
result of converting a unit from oil or gas to an alternate fuel, is not 
substantial unless convincing evidence to the contrary is submitted in 
rebuttal. \6\
---------------------------------------------------------------------------

    \6\ For example, units that are the subject of a prohibition order 
will not have installed any operating air pollution control equipment 
sufficient to burn coal in compliance with applicable environmental 
equipments. The installation and use of air pollution control equipment 
alone can, in many cases, produce a derating. Moreover, the shift to 
coal itself will, because of differences in energy density and fuel flow 
characteristics, typically involve some derating.

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

[[Page 60]]

    (3) OFP will assess units for which a derating is claimed of 10 
percent or more, but less than 25 percent, on a case-by-case.
    (4) In assessing whether a unit's derating is not substantial, OFP 
will consider the impact of a reduction in rated capacity of the unit 
taking into consideration all necessary appurtenances such as air 
pollution control equipment required to burn an alternate fuel in 
compliance with environmental requirements expected to be applicable at 
the date the prohibitions contained in the final prohibition order 
become effective. However, the potential order recipient may raise in 
rebuttal the impact of derating on the site at which the unit is located 
and on the system as well as on the unit itself, if under paragraph 
(e)(2), or case-by-case, if under paragraph (e)(3) of this section.
    (f) Financial feasibility. In the case of certifying and electing 
powerplants, OFP will make this finding based on the following 
considerations. A certifying powerplant should present information to 
support its certification relevant to these considerations in order for 
OFP to make its review for concurrence. Conversion of a unit to burn 
coal or an alternate fuel shall be deemed financially feasible if the 
firm has the actual ability to obtain sufficient capital to finance the 
conversion, including all necessary land, coal and ash handling 
equipment, pollution control equipment, and all other necessary 
expenditures, without violating legal restrictions on its ability to 
raise debt or equity capital, unreasonably diluting shareholder equity, 
or unreasonably adversely affecting its credit rating. OFP will consider 
any economic or financial factors presented by the proposed order 
recipient in determining the firm's ability or inability to finance the 
conversion including, but not limited to, the following:
    (1) The required coverage ratios on the firm's debt and preferred 
stock;
    (2) The firm's investment program; and
    (3) The financial impact of the conversion, including other 
conversions which are or may be undertaken voluntarily by the proposed 
order recipient or imposed upon the recipient's system by the Act, and 
including pending or planned construction or reconstruction of 
alternate-fuel-fired plants and plants exempt from FUA prohibitions. \7\ 
Where helpful in clarifying the long-term financial feasibility of a 
conversion, DOE may analyze the economic benefits anticipated from 
operation of the converted unit or units using coal or other alternate 
fuel relative to those from continued operation using petroleum or 
natural gas.
---------------------------------------------------------------------------

    \7\ OFP will not require the proposed order recipient to cancel or 
defer construction or reconstruction of any alternate-fuel-fired 
facility, or any facility exempt from the prohibitions of the Act, for 
which a decision to finance such facility has been made by the 
appropriate company official before the publication of the prohibition 
order. The proposed order recipient may choose to cancel or defer any 
such facility.

(Approved by the Office of Management and Budget under control number 
---------------------------------------------------------------------------
1903-0077)

(Energy Supply and Environmental Coordination Act of 1974, Pub. L. 93-
319, as amended by Pub. L. 94-163, Pub. L. 95-70, and 15 U.S.C. 719 et 
seq.; Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 
(42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of 
1978, Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus 
Budget Reconciliation Act of 1981 (Pub. L. 97-35); E.O. 12009, 42 FR 
46267, Sept. 15, 1977)

[45 FR 53692, Aug. 12, 1980, as amended at 47 FR 17044, Apr. 21, 1982; 
47 FR 50849, Nov. 10, 1982]



Sec. 504.7  Prohibition against excessive use of petroleum or natural gas in mixtures--electing powerplants.

    (a) In the case of electing powerplants, if OFP finds that it is 
technically and financially feasible for a unit to use a mixture of 
petroleum or natural gas and an alternate fuel as its primary energy 
source, OFP may prohibit, by order, the use in that unit of petroleum or 
natural gas, or both, in amounts exceeding the minimum

[[Page 61]]

amount necessary to maintain reliability of operation consistent with 
maintaining reasonable fuel efficiency of the mixture.
    (b) In making the technical feasibility finding required by former 
section 301 (b) and (c) of the Act and paragraph (a) of this section, 
OFP may weigh ``physical modification'' or ``derating of the unit,'' but 
these considerations, by themselves, will not control the technical 
feasibility finding. A technical feasibility finding might be made 
notwithstanding the need for substantial physical modification. The 
economic consequences of a substantial physical modification are taken 
into account in determining financial feasibility.

(Energy Supply and Environmental Coordination Act of 1974, Pub. L. 93-
319, as amended by Pub. L. 94-163, Pub. L. 95-70, and 15 U.S.C. 719 et 
seq.; Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 
(42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of 
1978, Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus 
Budget Reconciliation Act of 1981 (Pub. L. 97-35); E.O. 12009, 42 FR 
46267, Sept. 15, 1977)

[47 FR 17045, Apr. 21, 1982, and 47 FR 50850, Nov. 10, 1982]



Sec. 504.8  Prohibitions against excessive use of petroleum or natural gas in mixtures--certifying powerplants.

    (a) In the case of certifying powerplants, OFP may prohibit the use 
of petroleum or natural gas in such powerplant in amounts exceeding the 
minimum amount necessary to maintain reliability of operation consistent 
with maintaining the reasonable fuel efficiency of the mixture. This 
authority is contained in section 301(c) of the Act, as amended. The 
owner or operator of the powerplant may certify at any time to OFP that 
it is technically capable and financially feasible for the unit to use a 
mixture of petroleum or natural gas and coal or another alternate fuel 
as a primary energy source. In assessing whether the unit is technically 
capable of using a mixture of petroleum or natural gas and coal or 
another alternate fuel as a primary energy source, for purposes of this 
section, the extent of any physical modification necessary to convert 
the unit and any concomitant reduction in rated capacity are not 
relevant factors. So long as a unit as proposed to be modified would be 
technically capable of using the mixture as a primary energy source 
under Sec. 504.6(c), this certification requirement shall be deemed 
met. The criteria for certification of financial feasibility are found 
at Sec. 504.6(f). In addition, the powerplant's owner or operator must 
submit a prohibition compliance schedule, which meets the requirements 
of Sec. 504.5(d).
    (b) If OFP concurs with the certification, a prohibition order 
against the unit's excessive use of petroleum or natural gas in the 
mixture will be issued following the procedure outlined in Sec. 501.52 
of these regulations.
    (c) The petitioner may seek to amend its certification in order to 
take into account changes in relevant facts and circumstances by 
following the procedure contained in Sec. 501.52(d).

    Note: The authority of OFP implemented under this section should not 
be confused with the other two fuel mixture provisions of these 
regulations. One is the general requirement that petitioners for 
permanent exemptions demonstrate that the use of a mixture of natural 
gas or petroleum and an alternate fuel is not economically or 
technically feasible (See Sec. 504.15). The second is the permanent 
fuel mixtures exemption itself (See Sec. 504.56).

(Approved by the Office of Management and Budget under control number 
1903-0077)

(Department of Energy Organization Act, Pub. L. 95-91 (42 U.S.C. 7101 et 
seq.); Energy Supply and Environmental Coordination Act of 1974, Pub. L. 
93-319, as amended by Pub. L. 94-163, Pub. L. 95-70, and Pub. L. 95-620 
(15 U.S.C. 719 et seq.); Powerplant and Industrial Fuel Use Act of 1978, 
Pub. L. 95-620, as amended by Pub. L. 97-35 (42 U.S.C. 8301 et seq.); 
Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35)

[47 FR 17045, Apr. 21, 1982]



Sec. 504.9  Environmental requirements for certifying powerplants.

    Under Sec. Sec. 501.52, 504.5 and 504.6 of these regulations, OFP 
may prohibit, in accordance with section 301 and section 303 (a) or (b) 
of FUA, as amended, the use of natural gas or petroleum, or both, as a 
primary energy source in any certifying powerplant. Under sections 
301(c) and 303(a) of FUA, as amended, and Sec. Sec. 501.52, 504.6, and 
504.8 of these regulations, OFP may prohibit

[[Page 62]]

the excessive use of natural gas or petroleum in a mixture with an 
alternate fuel as a primary energy source in a certifying powerplant.
    (a) NEPA compliance. Except as provided in paragraph (c) of this 
section, where the owner or operator of a powerplant seeks to obtain an 
OFP prohibition order through the certification procedure, and did not 
hold either a proposed prohibition order under former section 301 of FUA 
or pending order under section 2 of ESECA, it will be responsible for 
the costs of preparing any necessary Environmental Assessment (EA) or 
Environmental Impact Statement (EIS) arising from OFP's obligation to 
comply with NEPA. The powerplant owner or operator shall enter into a 
contract with an independent party selected by OFP, who is qualified to 
conduct an environmental review and prepare an EA or EIS, as 
appropriate, and who does not have a financial or other interest in the 
outcome of the proceedings, under the supervision of OFP. The NEPA 
process must be completed and approved before OFP will issue a final 
prohibition order based on the certification.
    (b) Environmental review procedure. Except as provided in paragraph 
(c) of this section, environmental documents, including the EA and EIS, 
where necessary, will be prepared utilizing the process set forth above. 
OFP, the powerplant owner or operator and the independent third party 
shall enter into an agreement for the owner or operator to engage and 
pay directly for the services of the qualified third party to prepare 
the necessary documents. The third party will execute an OFP prepared 
disclosure document stating that he does not have any conflict of 
interest, financial or otherwise, in the outcome of either the 
environmental process or the prohibition order proceeding. The agreement 
shall outline the responsibilities of each party and his relationship to 
the other two parties regarding the work to be done or supervised. OFP 
shall approve the information to be developed and supervise the 
gathering, analysis and presentation of the information. In addition, 
OFP will have the authority to approve and modify any statement, 
analysis, and conclusion contained in the third party prepared 
environmental documents.
    (c) Financial hardship. Whenever the bona fide estimate of the costs 
associated with NEPA compliance, if borne by the powerplant owner or 
operator, would make the conversion financially infeasible, OFP may 
waive the requirement set forth in paragraphs (a) and (b) of this 
section and perform the necessary environmental review.

(Approved by the Office of Management and Budget under control number 
1903-0077)

(Department of Energy Organization Act, Pub. L. 95-91 (42 U.S.C. 7101 et 
seq.); Energy Supply and Environmental Coordination Act of 1974, Pub. L. 
93-319, as amended by Pub. L. 94-163, Pub. L. 95-70, and Pub. L. 95-620 
(15 U.S.C. 719 et seq.); Powerplant and Industrial Fuel Use Act of 1978, 
Pub. L. 95-620, as amended by Pub. L. 97-35 (42 U.S.C. 8301 et seq.); 
Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35)

[47 FR 17046, Apr. 21, 1982]



Sec. Appendix I to Part 504--Procedures for the Computation of the Real 
                             Cost of Capital

    (a) The firm's real after-tax weighted average marginal cost of 
capital (K) is computed with equation 1.
[GRAPHIC] [TIFF OMITTED] TC01OC91.003


[[Page 63]]


The terms in equation 1 are defined as follows:

Wd=Fraction of existing capital structure which is debt.
Wp=Fraction of existing capital structure which is preferred 
equity.
We=Fraction of existing capital structure which is common 
equity and retained earnings.
Rd=Predicted nominal cost of long term debt expressed as a 
fraction.
Rp=Predicted nominal cost of preferred stock expressed as a 
fraction.
Re=Predicted nominal cost of common stock expressed as a 
fraction.
INF=Percentage change in the GNP implicit price deflator over the past 
12 months expressed as a fraction.
fd=Flotation cost of debt expressed as a fraction.
fp=Flotation cost of preferred stock expressed as a fraction.
fe=Flotation cost of common stock expressed as a fraction.
t=Marginal federal income tax rate for the current year.

    (b) Information on parameters used in Equation 1. (1) The parameters 
used in equation 1 will be the best practicable estimates. They will be 
obtained from the firm, accepted rating services (e.g., Standard & 
Poors, Moody's), government publications, accepted financial 
publications, annual financial reports and statements of firms, and 
investment bankers.
    (2) The predicted nominal cost of debt (Rd) may be 
estimated by determining the current average yield on newly issued 
bonds--industrial or utility as appropriate--which have the same rating 
as the firm's most recent debt issue.
    (3) The predicted nominal cost of preferred stock (Rp) 
may be estimated by determining the current average yield on newly 
issued preferred stock--industrial or utility as appropriate--which has 
the same rating as the firm's most recent preferred stock issue.
    (4)(A) The predicted nominal cost of common stock (Re) is 
computed with equation 2.

Eq 2 Re=Rf+BxRm

where:

Rf=The risk free interest rate--the average of the most 
recent auction rates of U.S. Government 13-week Treasury Bills,
B=The ``beta'' coefficient--the relationship between the excess return 
on common stock and the excess return on the S&P 500 composite index, 
and
Rm=The mean excess return on the S&P 500 composite index--the 
mean of the difference between the return on the S&P 500 composite index 
and the risk free interest rate for the years 1926-1976 as computed by 
Ibbotson and Sinquefield(1)--9.2%

    (B) The ``beta'' coefficient is computed with regression analysis 
techniques. The regression equation is Equation 3.

(Ret-Rft) = 
A+B(Rmt-Rft)+et
                                                                   Eq. 3

where
[GRAPHIC] [TIFF OMITTED] TC01OC91.004

Rf t = The risk free interest rate in month t--the average of 
the yields on 13-week treasury bills auctioned in month t.(2)
A=A constant which should not be significantly different than zero.
[GRAPHIC] [TIFF OMITTED] TC01OC91.005

et=The error in month t.
PRCCt=Closing market prices of the firm's common stock at the 
end of month t fully adjusted for splits and stock dividends.
DIVRATEt=The sum of the dividends paid in the fiscal year 
which contain month t.
Vsp,t=The market value of ``one share'' of the S&P 500 
composite index at the end of month t.
Dsp,t=The estimated monthly income received from holding 
``one share'' of the S&P 500 in month t.

    The regression analysis is done with sixty months of data. The first 
month (t=1) is sixty months before the month in which the firm's current 
fiscal year started. The last month (t=60) is the last month of the past 
fiscal year.
    (5) Where the parameters specified above are not obtainable, 
alternate parameters that closely correspond to those above may be used. 
This may include substituting a bond yield for nominal cost of preferred 
stock where the former is not available. Where the capital structure 
does not consist of any debt, preferred equity, or common equity, an 
alternate methodology to predict the firm's real after-tax marginal cost 
of capital may be used.
    Example of using alternate parameters that closely correspond to 
those above are:
    (A) In the case of industrials, who do not typically issue preferred 
stock, the predicted nominal cost of preferred stock (RP) can 
be estimated by determining the current average yield on newly issued 
industrial bonds which have the same rating as the firm's most recent 
debt issue.
    (B) If necessary, the following assumptions can be made to determine 
the nominal cost of debt or preferred stock and their flotation costs.
    (i) Where a company issued privately placed debt that was not rated, 
the rating, applied to preferred stock could be used to

[[Page 64]]

determine the cost of debt and its flotation cost.
    (ii) Where a company issued privately placed preferred stock that 
was not rated, the rating applied to debt could be used to determine the 
cost of preferred stock and its flotation costs.
    (iii) In the case where all issues were privately placed, the 
current average yield on all newly issued debt or preferred could be 
used to determine the cost of debt or preferred respectively, and an 
average flotation cost, for debt or preferred, could be used.
    (C) Evidence Requirements. Copies of this calculation with notations 
as to the source of the data must be submitted.

                                Footnotes

    (1) Ibbotson, R.E. and R.A. Sinquefield, Stocks, Bonds, Bills, and 
Inflation, Charlottesville, Va.: The Financial Analysts Research 
Foundation, 1977, cited by Ernst & Whinney, Costs of Capital and Rates 
of Return for Industrial Firms and Class A&B Electric Utility Firms, 
June 1979, p. 3-8.
    (2) As an option, Rf t can be developed with the 
following equation:
[GRAPHIC] [TIFF OMITTED] TC01OC91.006

where:

Dt=The average annual yield on three month U.S. Treasury 
bills reported in the Survey of Current Business auctioned in month t--
which is reported using the bank discount method.
N=Number of days to maturity.

[46 FR 59920, Dec. 7, 1981]



          Sec. Appendix II to Part 504--Fuel Price Computation

    (a) Introduction. This appendix provides the equations and 
parameters needed to specify the price of the delivered fuels to be used 
in the cost calculations associated with parts 503 and 504 of these 
regulations. The delivered price of the fuel to be used to calculate 
delivered fuel expenses must reflect (1) the price of each fuel at the 
time of the petition, and (2) the effects of future real price increases 
for each fuel. The delivered price of an alternate fuel used to 
calculate delivered fuel expenses must reflect the petitioner's 
delivered price of the alternate fuel and the effects of real increases 
in the price of that alternate fuel. Paragraphs (b), (c) and (d) below 
provide the procedure to: (1) Calculate fuel price and inflation 
indices; (2) account for projected real increases in fuel prices when 
planning to burn one or more than one fuel; and (3) account for 
projected real increases in the price of the alternate fuel. Table II-1 
of this appendix (See paragraph (b)) contains example fuel price and 
inflation indices based on the latest data appearing in the Energy 
Information Administration's (EIA) Annual Energy Outlook (AEO).
    The fuel price and inflation indices will change yearly with the 
publication of the AEO. Revisions shall become effective after final 
publication. However, the relevant set of parameters for a specific 
petition for exemption will be the set in effect at the time the 
petition is submitted or the set in effect at the time a decision is 
rendered, whichever is more favorable to the petitioner.
    (b) Computation of Fuel Price and Inflation Indices. (1) the 
Petitioner is responsible for computing the annual fuel price and 
inflation indices by using Equation II-1 and Equation II-2, 
respectively. The petitioner may compute the fuel price index specified 
in Equation II-1 or use his own price index. However, if he uses his own 
price index, the source or the derivation of the index must be fully 
documented and be contained in the evidential summary.

    EQ II-2 is:
    [GRAPHIC] [TIFF OMITTED] TC01OC91.007
    
where:
PXi=The fuel price index for each fuel in year i. 
Pi=Price of fuel in year i.
Po=Price of fuel in base year.

    EQ II-2 is:
    [GRAPHIC] [TIFF OMITTED] TC01OC91.008
    
where:

IXi=The inflation index in year i.
GXi=The NIPA GNP price deflator for year i.
GXo=The NIPA GNP price deflator for the base year.

    (2) The parameters to be used in EQ II-1 are the Base Case fuel 
price projections found in EIA's current AEO.
    (3) When computing annual inflation indices, the petitioner is to 
use the Base Case National Macroeconomic Indicators (NIPA GNP Price 
Deflator) contained in EIA's current AEO. If necessary, the petitioner 
must rebase the projection to the same year used for the fuel price 
projections. For example, in 1989 AEO projects the price deflator in 
1982 dollars; this must be rebased to the year in which the petition is 
filed. The methodology used to rebase the inflation indices must follow 
standard statistical procedures and must be fully documented within the 
petition. This index will remain frozen at the last year of the AEO's 
projection for the remainder of the unit'(s) useful life.
    (4) Table II-1 is provided as an example of the application of 
equations II-1 and II-2. This table contains annual fuel price indices 
for distillate oil, residual oil, natural gas,

[[Page 65]]

and coal. It also contains annual inflation indices. These values were 
computed from information contained in Table A3 and Table A11 of EIA's 
AEO, 1989.

                                        Table II-1: Price and Inflation Indices for use in the Cost Calculations
--------------------------------------------------------------------------------------------------------------------------------------------------------
          Year                Distillate (DPX)           Residual (RPX)           Natural gas (GPX)            Coal (CPX)             Inflation (IX)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                1986                    1.0000                    1.0000                    1.0000                    1.0000                   1.0000
                1987                    0.9810                    1.2134                    0.9508                    0.9231                   1.0334
                1988                    0.9429                    0.9407                    0.8934                    0.8876                   1.0658
                1989                    0.8929                    0.9328                    0.9057                    0.8639                   1.1054
                1990                    0.9905                    1.0119                    0.9221                    0.9112                   1.1607
                1991                    1.0381                    1.0751                    0.9344                    0.9172                   1.2204
                1992                    1.0929                    1.1344                    1.0205                    0.9231                   1.2836
                1993                    1.1595                    1.2292                    1.1148                    0.9349                   1.3512
                1994                    1.2286                    1.3241                    1.1844                    0.9467                   1.4214
                1995                    1.3000                    1.4150                    1.2705                    0.9527                   1.4960
                1996                    1.4000                    1.5415                    1.4016                    0.9586                   1.5768
                1997                    1.4762                    1.6403                    1.4918                    0.9704                   1.6585
                1998                    1.5452                    1.7273                    1.5615                    0.9763                   1.7410
                1999                    1.6143                    1.7905                    1.6475                    0.9882                   1.8235
                2000                    1.6690                    1.8340                    1.7049                    0.9941                   1.9025
                2001                    1.6690                    I.8340                    1.7049                    0.9941                   1.9025
                2002                    1.6690                    1.8340                    1.7049                    0.9941                   1.9025
                2003                    1.6690                    1.8340                    1.7049                    0.9941                   1.9025
                2004                    1.6690                    1.8340                    1.7049                    0.9941                   1.9025
                2005                    1.6690                    1.8340                    1.7049                    0.9941                   1.9025
                2006                    1.6690                    1.8340                    1.7049                    0.9941                   1.9025
                2007                    1.6690                    1.8340                    1.7049                    0.9941                   1.9025
                2008                    1.6690                    1.8430                    1.7049                    0.9941                   1.9025
                2009                    1.6690                    1.8340                    1.7049                    0.9941                   1.9025
                2010                    1.6690                    1.8340                    1.7049                    0.9941                   1.9025
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (C) Fuel Price Computation. (1) The delivered price of the proposed 
fuel to be burned (FPBi) must reflect the real escalation 
rate of the proposed fuel, and must be computed with Equation EQ II-3.

EQ-II-3 is: FPBi=MPB [PXi]

where:

FPBi=Price of the proposed fuel (distillate oil, residual 
oil, or natural gas) in year i.
MPB=The current delivered market price of the proposed fuel.
PXi=The fuel price index value in year i, computed with 
Equation II-1.

or:

    (2) When planning to use more than one fuel in the proposed unit(s), 
the petitioner must use Equation II-1 and Equation II-3 to calculate the 
annual fuel price of each fuel to be used. The petitioner then must 
estimate the proportion of each fuel to be burned annually over the 
useful life of the unit(s). With these proportions and the respective 
annual fuel prices for each fuel, the petitioner must compute an annual 
weighted average fuel price. The methodology used to calculate the 
weighted average fuel price must follow standard statistical procedures 
and be fully documented within the petition.
    (d) Fuel Price Computation--Alternate Fuel. The delivered price of 
alternate fuel (PFAi) must reflect the real escalation rate 
of alternate fuel and must be computed with Equation II-4.
Equation II-4 is:

PFAi=APFxapxi

where:

PFA=The price of the alternate fuel in year i.
APF-i=The current market price of the alternate fuel f.o.b. 
the facility).
APXi=The alternate fuel price index value for year i, 
computed with Equation II-1.

    In most cases the alternate fuel will be coal. The petitioner must 
use Equation II-1 (paragraph (b)) to compute the escalation rate 
(APXi). If an alternate fuel other than coal is proposed the 
source or the derivation of the index must be fully documented and be 
contained in the evidential summary.

[54 FR 52896, Dec. 22, 1989]

                           PART 508 [RESERVED]

                           PART 516 [RESERVED]

[[Page 66]]



      SUBCHAPTER G_NATURAL GAS (ECONOMIC REGULATORY ADMINISTRATION)


PART 580_CURTAILMENT PRIORITIES FOR ESSENTIAL AGRICULTURAL USES--Table of Contents



Sec.
580.01 Purpose.
580.02 Definitions.
580.03 Curtailment priorities.
580.04 Administrative procedures. [Reserved]

    Authority: Secs. 401, 403, Pub. L. 95-621, 92 Stat. 3394-3395, 3396; 
secs. 301(b), 402(a), Pub. L. 95-91, 91 Stat. 578, 594, (42 U.S.C. 
7115(b), 7117(a)); E.O. 12009, 42 FR 46267.

    Source: 44 FR 15646, Mar. 15, 1979, unless otherwise noted.



Sec. 580.01  Purpose.

    The purpose of this part is to implement the authority granted to 
the Secretary of Energy in section 401 of the Natural Gas Policy Act of 
1978, Public Law 95-621, 92 Stat. 3394-3395 (1978).



Sec. 580.02  Definitions.

    (a) Terms defined in section 2 of the Natural Gas Policy Act of 1978 
shall have the same meaning, as applicable, for purposes of this part, 
unless further defined in paragraph (b) of this section.
    (b) The following definitions are applicable to this part:
    (1) Commercial establishment means any establishment, (including 
institutions and local, state and federal government agencies) engaged 
primarily in the sale of goods or services, where natural gas is used 
for purposes other than those involving manufacturing or electric power 
generation.
    (2) Essential agricultural use means any use of natural gas:
    (i) For agricultural production, natural fiber production, natural 
fiber processing, food processing, food quality maintenance, irrigation 
pumping, crop drying; or
    (ii) As a process fuel or feedstock in the production of fertilizer, 
agricultural chemicals, animal feed, or food which the Secretary of 
Agriculture determines is necessary for full food and fiber production.
    (3) Essential agricultural user means any person who uses natural 
gas for an essential agricultural use as defined in paragraph (b)(2) of 
this section.
    (4) Hospital means a facility whose primary function is delivering 
medical care to patients who remain at the facility, including nursing 
and convalescent homes. Outpatient clinics or doctors' offices are not 
included in this definition.
    (5) High-priority use means any use of natural gas by a high-
priority user as defined in paragraph (a)(6) of this section.
    (6) High-priority user means, in no specific order, any person who 
uses natural gas:
    (i) In a residence, or
    (ii) In a commercial establishment in amounts of less than 50 Mcf on 
a peak day; or
    (iii) In any school or hospital; or
    (iv) For minimum plant protection when operations are shut down, for 
police protection, for fire protection, in a sanitation facility, in a 
correctional facility, or for emergency situations pursuant to 18 CFR 
2.78(a)(4).
    (7) Interstate pipeline means any person engaged in natural gas 
transportation subject to the jurisdiction of the Federal Energy 
Regulatory Commission under the Natural Gas Act.
    (8) Residence means a dwelling using natural gas predominately for 
residential purposes such as space heating, air conditioning, hot water 
heating, cooking, clothes drying, and other residential uses, and 
includes apartment buildings and other multi-unit residential buildings.
    (9) School means a facility, the primary function of which is to 
deliver instruction to regularly enrolled students in attendance at such 
facility. Facilities used for both educational and non-educational 
activities are not included under this definition unless the latter are 
merely incidental to the delivery of instruction.

[[Page 67]]



Sec. 580.03  Curtailment priorities.

    (a) Notwithstanding any provision of law other than section 401(b) 
of the Natural Gas Policy Act of 1978, or any other rule, regulation, or 
order of the Department of Energy, the Federal Energy Regulatory 
Commission or their predecessor agencies, and to the maximum extent 
practicable, no curtailment plan of an interstate pipeline may provide 
for curtailment of deliveries of natural gas for any essential 
agricultural use, unless:
    (1) Such curtailment does not reduce the quantity of natural gas 
delivered for such use below the use requirement certified by the 
Secretary of Agriculture under section 401(c) of the Natural Gas Policy 
Act of 1978 in order to meet the requirements of full food and fiber 
production; or
    (2) Such curtailment is necessary in order to meet the requirements 
of high-priority users; or
    (3) The Federal Energy Regulatory Commission, in consultation with 
the Secretary of Agriculture, determines, by rule or order issued 
pursuant to section 401(b) of the Natural Gas Policy Act of 1978, that 
use of a fuel (other than natural gas) is economically practicable and 
that the fuel is reasonably available as an alternative for such 
essential agricultural use.
    (b) Any essential agricultural user who also qualifies as a high-
priority user shall be a high-priority user for purposes of paragraph 
(a) of this section.
    (c) The specific relative order of priority for all uses and users 
of natural gas, including high-priority and essential agricultural uses 
and users, shall remain as reflected in effective curtailment plans of 
interstate pipelines filed with the Federal Energy Regulatory Commission 
to the extent that the relative order of priorities does not conflict 
with paragraph (a) of this section.
    (d) Nothing in this rule shall prohibit the injection of natural gas 
into storage by interstate pipelines or deliveries to its customers for 
their injection into storage unless it is demonstrated to the Federal 
Energy Regulatory Commission that these injections or deliveries are not 
reasonably necessary to meet the requirements of high-priority users or 
essential agricultural uses.



Sec. 580.04  Administrative procedures. [Reserved]



PART 590_ADMINISTRATIVE PROCEDURES WITH RESPECT TO THE IMPORT AND EXPORT OF NATURAL GAS--Table of Contents



                      Subpart A_General Provisions

Sec.
590.100 OMB Control Numbers.
590.101 Purpose and scope.
590.102 Definitions.
590.103 General requirements for filing documents with FE.
590.104 Address for filing documents.
590.105 Computation of time.
590.106 Dockets.
590.107 Service.
590.108 Off-the-record communications.
590.109 FE investigations.

Subpart B_Applications for Authorization To Import or Export Natural Gas

590.201 General.
590.202 Contents of applications.
590.203 Deficient applications.
590.204 Amendment or withdrawal of applications.
590.205 Notice of applications.
590.206 Notice of procedures.
590.207 Filing fees.
590.208 Small volume exports.
590.209 Exchanges by displacement.

                          Subpart C_Procedures

590.301 General
590.302 Motions and answers.
590.303 Interventions and answers.
590.304 Protests and answers.
590.305 Informal discovery.
590.306 Subpoenas.
590.307 Depositions.
590.308 Admissions of facts.
590.309 Settlements.
590.310 Opportunity for additional procedures.
590.311 Conferences.
590.312 Oral presentations.
590.313 Trial-type hearings.
590.314 Presiding officials.
590.315 Witnesses.
590.316 Shortened proceedings.
590.317 Complaints.

                      Subpart D_Opinions and Orders

590.401 Orders to show cause.
590.402 Conditional orders.
590.403 Emergency interim orders.
590.404 Final opinions and orders.
590.405 Transferability.
590.406 Compliance with orders.

[[Page 68]]

590.407 Reports of changes.

                  Subpart E_Applications for Rehearing

590.501 Filing.
590.502 Application is not a stay.
590.503 Opinion and order on rehearing.
590.504 Denial by operation of law.
590.505 Answers to applications for rehearing.

    Authority: Secs. 301(b), 402(f), and 644, Pub. L. 95-91, 91 Stat. 
578, 585, and 599 (42 U.S.C. 7151(b), 7172(f), and 7254), Sec. 3, Act of 
June 21, 1938, c. 556, 52 Stat. 822 (15 U.S.C. 717b); E.O. 12009 (42 FR 
46267, September 15, 1977); DOE Delegation Order Nos. 0204-111 and 0204-
127 (49 FR 6684, February 22, 1984; 54 FR 11437, March 20, 1989).

    Source: 54 FR 53531, Dec. 29, 1989, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 590.100  OMB Control Numbers.

    The information collection requirements contained in this part have 
been approved by the Office of Management and Budget under Control No. 
1903-0081.



Sec. 590.101  Purpose and scope.

    The purpose of this part is to establish the rules and procedures 
required to be followed by persons to obtain authorizations from DOE to 
import or export natural gas under the Natural Gas Act and by all other 
persons interested in participating in a natural gas import or export 
proceeding before the agency. This part establishes the procedural rules 
necessary to implement the authorities vested in the Secretary of Energy 
by sections 301(b) and 402(f) of the DOE Act, which have been delegated 
to the Assistant Secretary.



Sec. 590.102  Definitions.

    As used in this part:
    (a) Assistant Secretary means the Assistant Secretary for Fossil 
Energy or any employee of the DOE who has been delegated final 
decisional authority.
    (b) Contested proceeding means a proceeding:
    (1) Where a protest or a motion to intervene, or a notice of 
intervention, in opposition to an application or other requested action 
has been filed, or
    (2) Where a party otherwise notifies the Assistant Secretary and the 
other parties to a proceeding in writing that it opposes an application 
or other requested action.
    (c) Decisional employee means the Assistant Secretary, presiding 
officials at conferences, oral presentations or trial-type hearings, and 
any other employee of the DOE, including consultants and contractors, 
who are, or may reasonably be expected to be, involved in the decision-
making process, including advising the Assistant Secretary on the 
resolution of issues involved in a proceeding. The term includes those 
employees of the DOE assisting in the conduct of trial-type hearings by 
performing functions on behalf of the Assistant Secretary or presiding 
official.
    (d) DOE means the Department of Energy, of which FE is a part.
    (e) DOE Act means the Department of Energy Organization Act, Public 
Law 95-91, 91 Stat. 565 (42 U.S.C. 7101 et seq.).
    (f) FE means the Office of The Assistant Secretary for Fossil 
Energy.
    (g) FERC means the Federal Energy Regulatory Commission.
    (h) Interested person means a person, other than a decisional 
employee, whose interest in a proceeding goes beyond the general 
interest of the public as a whole and includes applicants, intervenors, 
competitors of applicants, and other individuals and organizations, 
including non-profit and public interest organizations, and state, 
local, and other public officials, with a proprietary, financial or 
other special interest in the outcome of a proceeding. The term does not 
include other federal agencies or foreign governments and their 
representatives, unless the agency, foreign government, or 
representative of a foreign government is a party to the proceeding.
    (i) Natural gas means natural gas and mixtures of natural gas and 
synthetic natural gas, regardless of physical form or phase, including 
liquefied natural gas and gels primarily composed of natural gas.
    (j) NGA means the Natural Gas Act of June 21, 1938, c. 556, 52 Stat. 
821 (15 U.S.C. 717 et seq.).
    (k) Off-the-record communication means a written or oral 
communication not on the record which is relevant to the merits of a 
proceeding, and about which the parties have not been given reasonable 
prior notice of

[[Page 69]]

the nature and purpose of the communication and an opportunity to be 
present during such communication or, in the case of a written 
communication, an opportunity to respond to the communication. It does 
not include communications concerned solely with procedures which are 
not relevant to the merits of a proceeding. It also does not include 
general background discussions about an entire industry or natural gas 
markets or communications of a general nature made in the course of 
developing agency policy for future general application, even though 
these discussions may relate to the merits of a particular proceeding.
    (l) Party means an applicant, any person who has filed a motion for 
and been granted intervenor status or whose motion to intervene is 
pending, and any state commission which has intervened by notice 
pursuant to Sec. 590.303(a).
    (m) Person means any individual, firm, estate, trust, partnership, 
association, company, joint-venture, corporation, United States local, 
state and federal governmental unit or instrumentality thereof, 
charitable, educational or other institution, and others, including any 
officer, director, owner, employee, or duly authorized representative of 
any of the foregoing.
    (n) Presiding official means any employee of the DOE who has been 
designated by the Assistant Secretary to conduct any stage of a 
proceeding, which may include presiding at a conference, oral 
presentation, or trial-type hearing, and who has been delegated the 
authority of the Assistant Secretary to make rulings and issue orders in 
the conduct of such proceeding, other than final opinions and orders, 
orders to show cause, emergency interim orders, or conditional decisions 
under subpart D and orders on rehearing under subpart E.
    (o) Proceeding means the process and activity, and any part thereof, 
instituted by FE either in response to an application, petition, motion 
or other filing under this part, or on its own initiative, by which FE 
develops and considers the relevant facts, policy and applicable law 
concerning the importation or exportation of natural gas and which may 
lead to the issuance of an order by the Assistant Secretary under 
subparts D and E.
    (p) State commission means the regulatory body of a state or 
municipality having jurisdiction to regulate rates and charges for the 
sale of natural gas to consumers within the state or municipality, or 
having any regulatory jurisdiction over parties involved in the import 
or export arrangement.



Sec. 590.103  General requirements for filing documents with FE.

    (a) Any document, including but not limited to an application, 
amendment of an application, request, petition, motion, answer, comment, 
protest, complaint, and any exhibit submitted in connection with such 
documents, shall be filed with FE under this part. Such document shall 
be considered officially filed with FE when it has been received and 
stamped with the time and date of receipt by the Office of Fuels 
Programs, FE. Documents transmitted to FE must be addressed as provided 
in Sec. 590.104. All documents and exhibits become part of the record 
in the official FE docket file and will not be returned. An original and 
fifteen (15) copies of all applications, filings and submittals shall be 
provided to FE. No specific format is required. Applicants required to 
file quarterly reports as a condition to an authorization need only file 
an original and four (4) copies.
    (b) Upon receipt by FE, each application or other initial request 
for action shall be assigned a docket number. Any petition, motion, 
answer, request, comment, protest, complaint or other document filed 
subsequently in a docketed proceeding with FE shall refer to the 
assigned docket number. All documents shall be signed either by the 
person upon whose behalf the document is filed or by an authorized 
representative. Documents signed by an authorized representative shall 
contain a certified statement that the representative is a duly 
authorized representative unless the representative has a certified 
statement already on file in the FE docket of the proceeding. All 
documents shall also be verified under oath or affirmation by the person 
filing, or by an officer or authorized representative of the firm having 
knowledge of the facts alleged. Each document filed

[[Page 70]]

with FE shall contain a certification that a copy has been served as 
required by Sec. 590.107 and indicate the date of service. Service of 
each document must be made not later than the date of the filing of the 
document.
    (c) A person who files an application shall state whether, to the 
best knowledge of that person, the same or a related matter is being 
considered by any other part of the DOE, including the FERC, or any 
other Federal agency or department and, if so, shall identify the matter 
and the agency or department.



Sec. 590.104  Address for filing documents.

    All documents filed under this part shall be addressed to: Office of 
Fuels Programs, Fossil Energy, U.S. Department of Energy, Docket Room 
3F-056, FE-50, Forrestal Building, 1000 Independence Avenue SW., 
Washington, DC 20585. All hand delivered documents shall be filed with 
the Office of Fuels Programs at the above address between the hours of 8 
a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.



Sec. 590.105  Computation of time.

    (a) In computing any period of time prescribed or allowed by these 
regulations, the day of the act or event from which the designated 
period of time begins to run is not included. The period of time begins 
to run the next day after the day of the act or event. The last day of 
the period so computed is included unless it is a Saturday, Sunday, or 
legal Federal holiday, in which event the period runs until the end of 
the next day that is neither a Saturday, Sunday, nor a legal Federal 
holiday, unless otherwise provided by this part or by the terms of an FE 
order. Documents received after the regular business hours of 8 a.m. to 
4:30 p.m. are deemed filed on the next regular business day.
    (b) When a document is required to be filed with FE within a 
prescribed time, an extension of time to file may be granted for good 
cause shown.
    (c) An order is issued and effective when date stamped by the Office 
of Fuels Programs, FE, after the order has been signed unless another 
effective date is specified in the order.



Sec. 590.106  Dockets.

    The FE shall maintain a docket file of each proceeding under this 
part, which shall contain the official record upon which all orders 
provided for in subparts D and E shall be based. The official record in 
a particular proceeding shall include the official service list, all 
documents filed under Sec. 590.103, the official transcripts of any 
procedures held under subpart C, and opinions and orders issued by FE 
under subparts D and E, and reports of contract amendments under Sec. 
590.407. All dockets shall be available for inspection and copying by 
the public during regular business hours between 8 a.m. and 4:30 p.m. 
Dockets are located in the Office of Fuels Programs, FE, Docket Room 3F-
056, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 
20585.



Sec. 590.107  Service.

    (a) An applicant, any other party to a proceeding, or a person 
filing a protest shall serve a copy of all documents filed with FE upon 
all parties unless otherwise provided in this part. The copy of a 
document served upon parties shall be a true copy of the document filed 
with FE, but does not have to be a copy stamped with the time and date 
of receipt by FE. The FE shall maintain an official service list for 
each proceeding which shall be provided upon request.
    (b) When the parties are not known, such as during the initial 
comment period following publication of the notice of application, 
service requirements under paragraph (a) of this section may be met by 
serving a copy of all documents on the applicant and on FE for inclusion 
in the FE docket in the proceeding.
    (c) All documents required to be served under this part may be 
served by hand, certified mail, registered mail, or regular mail. It 
shall be the responsibility of the serving party to ensure that service 
is effected in a timely manner. Service is deemed complete upon delivery 
or upon mailing, whichever occurs first.
    (d) Service upon a person's duly authorized representatives on the 
official service list shall constitute service upon that person.

[[Page 71]]

    (e) All FE orders, notices, or other FE documents shall be served on 
the parties by FE either by hand, registered mail, certified mail, or 
regular mail, except as otherwise provided in this part.



Sec. 590.108  Off-the-record communications.

    (a) In any contested proceeding under this part:
    (1) No interested person shall make an off-the-record communication 
or knowingly cause an off-the-record communication to be made to any 
decisional employee.
    (2) No decisional employee shall make an off-the-record 
communication or knowingly cause an off-the-record communication to be 
made to any interested person.
    (3) A decisional employee who receives, makes, or knowingly causes 
to be made an oral off-the-record communication prohibited by this 
section shall prepare a memorandum stating the substance of the 
communication and any responses made to it.
    (4) Within forty-eight (48) hours of the off-the-record 
communication, a copy of all written off-the-record communications or 
memoranda prepared in compliance with paragraph (a)(3) of this section 
shall be delivered by the decisional employee to the Assistant Secretary 
and to the Deputy Assistant Secretary for Fuels Programs. The materials 
will then be made available for public inspection by placing them in the 
docket associated with the proceeding.
    (5) Requests by a party for an opportunity to rebut, on the record, 
any facts or contentions in an off-the-record communication may be filed 
in writing with the Assistant Secretary. The Assistant Secretary shall 
grant such requests only for good cause.
    (6) Upon being notified of an off-the-record communication made by a 
party in violation of this section, the Assistant Secretary may, to the 
extent consistent with the interests of justice and the policies of the 
NGA and the DOE Act, require the party to show cause why the party's 
claim or interest in the proceeding should not be dismissed, denied, 
disregarded, or otherwise adversely affected on account of the 
violation.
    (b) The prohibitions of paragraph (a) of the section shall apply 
only to contested proceedings and begin at the time either a protest or 
a motion to intervene or notice of intervention in opposition to the 
application or other requested action is filed with FE, or a party 
otherwise specifically notifies the Assistant Secretary and the other 
parties in writing of its opposition to the application or other 
requested action, whichever occurs first.



Sec. 590.109  FE investigations.

    The Assistant Secretary or the Assistant Secretary's delegate may 
investigate any facts, conditions, practices, or other matters within 
the scope of this part in order to determine whether any person has 
violated or is about to violate any provision of the NGA or other 
statute or any rule, regulation, or order within the Assistant 
Secretary's jurisdiction. In conducting such investigations, the 
Assistant Secretary or the Assistant Secretary's delegate may, among 
other things, subpoena witnesses to testify, subpoena or otherwise 
require the submission of documents, and order testimony to be taken by 
deposition.



Subpart B_Applications for Authorization To Import or Export Natural Gas



Sec. 590.201  General.

    (a) Any person seeking authorization to import or export natural gas 
into or from the United States, to amend an existing import or export 
authorization, or seeking any other requested action, shall file an 
application with the FE under the provisions of this part.
    (b) Applications shall be filed at least ninety (90) days in advance 
of the proposed import or export or other requested action, unless a 
later date is permitted for good cause shown.

[54 FR 53531, Dec. 29, 1989; 55 FR 14916, Apr. 19, 1990]



Sec. 590.202  Contents of applications.

    (a) Each application filed under Sec. 590.201 shall contain the 
exact legal

[[Page 72]]

name of the applicant, the names, titles, and mailing addresses of a 
maximum of two persons for the official service list, a statement 
describing the action sought from FE, the justification for such action, 
including why the proposed action is not inconsistent with the public 
interest, and the FE docket number, if applicable.
    (b) Each application shall include the matters listed below to the 
extent applicable. All factual matters shall be supported to the extent 
practicable by the necessary data or documents. Copies of relevant 
documents filed or intended to be filed with FERC may be submitted to 
satisfy the requirements of this section. Topics to be addressed or 
described shall include:
    (1) The scope of the project, including the volumes of natural gas 
involved, expressed in either Mcf or Bcf and their Btu equivalents, the 
dates of commencement and completion of the proposed import or export, 
and the facilities to be utilized or constructed;
    (2) The source and security of the natural gas supply to be imported 
or exported, including contract volumes and a description of the gas 
reserves supporting the project during the term of the requested 
authorization;
    (3) Identification of all the participants in the transaction, 
including the parent company, if any, and identification of any 
corporate or other affiliations among the participants;
    (4) The terms of the transaction, such as take-or-pay obligations, 
make-up provisions, and other terms that affect the marketability of the 
gas;
    (5) The provisions of the import arrangement which establish the 
base price, volume requirements, transportation and other costs, and 
allow adjustments during the life of the project, and a demonstration as 
to why the import arrangement is and will remain competitive over the 
life of the project and is otherwise not inconsistent with the public 
interest;
    (6) For proposed imports, the need for the natural gas by the 
applicant or applicant's prospective customers, including a description 
of the persons who are expected to purchase the natural gas; and for 
proposed exports, the lack of a national or regional need for the gas; 
and
    (7) The potential environmental impact of the project. To the extent 
possible, the application shall include a listing and description of any 
environmental assessments or studies being performed on the proposed gas 
project. The application shall be updated as the status of any 
environmental assessments changes.
    (c) The application shall also have attached a statement, including 
a signed opinion of legal counsel, showing that a proposed import or 
export of natural gas is within the corporate powers of the applicant 
and a copy of all relevant contracts and purchase agreements.
    (d) The Assistant Secretary or the Assistant Secretary's delegate 
may at any time require the applicant and other parties to make 
supplemental filings of additional information necessary to resolve 
issues raised by the application.
    (e) All information and data filed in support of or against an 
application will be placed in the official FE docket file of the 
proceeding and will not be afforded confidential treatment, unless the 
party shows why the information or data should be exempted from public 
disclosure and the Assistant Secretary or Assistant Secretary's delegate 
determines that such information or data shall be afforded confidential 
treatment. Such determination shall be made in accordance with 10 CFR 
1004.11.

[54 FR 53531, Dec. 29, 1989; 55 FR 18227, May 1, 1990]



Sec. 590.203  Deficient applications.

    If an application is incomplete or otherwise deemed deficient, the 
Assistant Secretary or the Assistant Secretary's delegate may require 
the applicant to submit additional information or exhibits to remedy the 
deficiency. If the applicant does not remedy the deficiency within the 
time specified by the Assistant Secretary or the Assistant Secretary's 
delegate, the application may be dismissed without prejudice to refiling 
at another time.



Sec. 590.204  Amendment or withdrawal of applications.

    (a) The applicant may amend or supplement the application at any 
time

[[Page 73]]

prior to issuance of the Assistant Secretary's final opinion and order 
resolving the application, and shall amend or supplement the application 
whenever there are changes in material facts or conditions upon which 
the proposal is based.
    (b) The Assistant Secretary may for good cause shown by motion of a 
party or upon the Assistant Secretary's own initiative decline to act 
on, in whole or in part, an amendment or supplement requested by an 
applicant under paragraph (a) of this section.
    (c) After written notice to FE and service upon the parties of that 
notice an applicant may withdraw an application. Such withdrawal shall 
be effective thirty (30) days after notice to FE if the Assistant 
Secretary does not issue an order to the contrary within that time 
period.



Sec. 590.205  Notice of applications.

    (a) Upon receipt of an application, the FE shall publish a notice of 
application in the Federal Register. The notice shall summarize the 
proposal. Except in emergency circumstances, generally the notice shall 
provide a time limit of not less than thirty (30) days from the notice's 
date of publication in the Federal Register for persons to file 
protests, comments, or a motion to intervene or notice of intervention, 
as applicable. The notice may also request comments on specific issues 
or matters of fact, law, or policy raised by the application.
    (b) The notice of application shall advise the parties of their 
right to request additional procedures, including the opportunity to 
file written comments and to request that a conference, oral 
presentation, or trial-type hearing be convened. Failure to request 
additional procedures at this time shall be deemed a waiver of any right 
to additional procedures should the Assistant Secretary decide to grant 
the application and authorize the import or export by issuing a final 
opinion and order in accordance with Sec. 590.316.
    (c) Where negotiations between the DOE, including FE, and a foreign 
government have resulted in a formal policy agreement or statement 
affecting a particular import or export proceeding, FE shall include in 
the notice of application a description of the terms or policy positions 
of that agreement or statement to the extent they apply to the 
proceeding, and invite comment. A formal policy agreement or statement 
affecting a particular import or export proceeding that is arrived at 
after publication of the notice of application shall be placed on the 
record in that proceeding and the parties given an opportunity to 
comment thereon.



Sec. 590.206  Notice of procedures.

    In all proceedings where, following a notice of application and the 
time specified in the notice for the filing of responses thereto, the 
Assistant Secretary determines to have additional procedures, which may 
consist of the filing of supplemental written comments, written 
interrogatories or other discovery procedures, a conference, oral 
presentation, or trial-type hearing, the Assistant Secretary shall 
provide the parties with notice of the procedures the Assistant 
Secretary has determined to follow in the proceeding and advise the 
parties of their right to request any additional procedures in 
accordance with the provisions of Sec. 590.310. The notice of 
procedures may identify and request comments on specific issues of fact, 
law, or policy relevant to the proceeding and may establish a time limit 
for requesting additional procedures.



Sec. 590.207  Filing fees.

    A non-refundable filing fee of fifty dollars ($50) shall accompany 
each application filed under Sec. 590.201. Checks shall be made payable 
to ``Treasury of the United States.''



Sec. 590.208  Small volume exports.

    Any person may export up to 100,000 cubic feet of natural gas (14.73 
pounds per square inch at 60 degrees Fahrenheit) or the liquefied or 
compressed equivalent thereof, in a single shipment for scientific, 
experimental, or other non-utility gas use without prior authorization 
of the Assistant Secretary.

[[Page 74]]



Sec. 590.209  Exchanges by displacement.

    Any importer of natural gas may enter into an exchange by 
displacement agreement without the prior authorization of the Assistant 
Secretary when the net effect of the exchange is no different than under 
the importer's existing authorization. An exchange by displacement is an 
arrangement whereby authorized imported volumes are displaced by other 
gas for purposes of storage or flexibility. The term of the exchange 
agreement may not exceed five (5) years, the volumes imported may not 
exceed the importer's existing import authorization, and no actual 
natural gas may flow across the United States border under the terms of 
the exchange agreement. Any importer who enters into an exchange 
agreement pursuant to this section shall file with FE within fifteen 
(15) days after the start up of the exchange, a written description of 
the transaction, the exact volume of natural gas to be displaced, the 
name of the purchaser, and the import authorization under which the 
exchange is being carried out.



                          Subpart C_Procedures



Sec. 590.301  General.

    The procedures of this subpart are applicable to proceedings 
conducted on all applications or other requested actions filed under 
this part. The Assistant Secretary may conduct all aspects of the 
procedures of this subpart or may designate a presiding official 
pursuant to Sec. 590.314.



Sec. 590.302  Motions and answers.

    (a) Motions for any procedural or interlocutory ruling shall set 
forth the ruling or relief requested and state the grounds and the 
statutory or other authority relied upon. All written motions shall 
comply with the filing requirements of Sec. 590.103. Motions made 
during conferences, oral presentations or trial-type hearings may be 
stated orally upon the record, unless the Assistant Secretary or the 
presiding official determines otherwise.
    (b) Any party may file an answer to any written motion within 
fifteen (15) days after the motion is filed, unless another period of 
time is established by the Assistant Secretary or the presiding 
official. Answers shall be in writing and shall detail each material 
allegation of the motion being answered. Answers shall state clearly and 
concisely the facts and legal authorities relied upon.
    (c) Any motion, except for motions seeking intervention or 
requesting that a conference, oral presentation or trial-type hearing be 
held, shall be deemed to have been denied, unless the Assistant 
Secretary or presiding official acts within thirty (30) days after the 
motion is filed.



Sec. 590.303  Interventions and answers.

    (a) A state commission may intervene in a proceeding under this part 
as a matter of right and become a party to the proceeding by filing a 
notice of intervention no later than the date fixed for filing motions 
to intervene in the applicable FE notice or order. If the period for 
filing the notice has expired, a state commission may be permitted to 
intervene by complying with the filing and other requirements applicable 
to any other person seeking to become a party to the proceeding as 
provided in this section.
    (b) Any other person who seeks to become a party to a proceeding 
shall file a motion to intervene, which sets out clearly and concisely 
the facts upon which the petitioner's claim of interest is based.
    (c) A motion to intervene shall state, to the extent known, the 
position taken by the movant and the factual and legal basis for such 
positions in order to advise the parties and the Assistant Secretary as 
to the specific issues of policy, fact, or law to be raised or 
controverted.
    (d) Motions to intervene may be filed at any time following the 
filing of an application, but no later than the date fixed for filing 
such motions or notices in the applicable FE notice or order, unless a 
later date is permitted by the Assistant Secretary for good cause shown 
and after considering the impact of granting the late motion of the 
proceeding. Each motion or notice shall list the names, titles, and 
mailing addresses of a maximum of two persons for the official service 
list.

[[Page 75]]

    (e) Any party may file an answer to a motion to intervene, but such 
answer shall be made within fifteen (15) days after the motion to 
intervene was filed, unless a later date is permitted by the Assistant 
Secretary for good cause shown. Answers shall be in writing. Answers 
shall detail each material allegation of the motion to intervene being 
answered and state clearly and concisely the facts and legal authorities 
relied upon. Failure to answer is deemed a waiver of any objection to 
the intervention. This paragraph does not prevent the Assistant 
Secretary from ruling on a motion to intervene and issuing a final 
opinion and order in accordance with Sec. 590.316 prior to the 
expiration of the fifteen (15) days in which a party has to answer a 
motion to intervene.
    (f) If an answer in opposition to a motion to intervene is timely 
filed or if the motion to intervene is not timely filed, then the movant 
becomes a party only after the motion to intervene is expressly granted.
    (g) If no answer in opposition to a motion to intervene is filed 
within the period of time prescribed in paragraph (e) of this section, 
the motion to intervene shall be deemed to be granted, unless the 
Assistant Secretary denies the motion in whole or in part or otherwise 
limits the intervention prior to the expiration of the time allowed in 
paragraph (e) for filing an answer to the motion to intervene. Where the 
motion to intervene is deemed granted, the participation of the 
intervenor shall be limited to matters affecting asserted rights and 
interests specifically set forth in the motion to intervene, and the 
admission of such intervenor to party status shall not be construed as 
recognition by FE that the intervenor might be aggrieved because of any 
order issued.
    (h) In the event that a motion for late intervention is granted, an 
intervenor shall accept the record of the proceeding as it was developed 
prior to the intervention.



Sec. 590.304  Protests and answers.

    (a) Any person objecting to an application filed under Sec. 590.201 
of this part or to any action taken by FE under this part may file a 
protest. No particular form is required. The protest shall identify the 
person filing the protest, the application or action being objected to, 
and provide a concise statement of the reasons for the protest.
    (b) The filing of a protest, without also filing a motion to 
intervene or a notice of intervention, shall not make the person filing 
the protest a party to the proceeding.
    (c) A protest shall be made part of the official FE docket file in 
the proceeding and shall be considered as a statement of position of the 
person filing the protest, but not as establishing the validity of any 
assertion upon which the decision would be based.
    (d) Protests shall be served on the applicant and all parties by the 
person filing the protest. If the person filing the protest is unable to 
provide service on any person identified as a party to the proceeding 
after a good faith effort, then FE shall effect service. However, when 
the parties are not known, service requirements may be met by serving a 
copy on the applicant and on FE as provided in Sec. 590.107(b).
    (e) Protests may be filed at any time following the filing of an 
application, but no later than the date fixed for filing protests in the 
applicable FE notice or order, unless a later date is permitted by the 
Assistant Secretary for good cause shown.
    (f) Any party may file an answer to a protest but such answer must 
be filed within fifteen (15) days after the protest was filed, unless a 
later date is permitted by the Assistant Secretary for good cause shown.

[54 FR 53531, Dec. 29, 1989; 55 FR 14916, Apr. 19, 1990]



Sec. 590.305  Informal discovery.

    The parties to a proceeding may conduct discovery through use of 
procedures such as written interrogatories or production of documents. 
In response to a motion by a party, the Assistant Secretary or presiding 
official may determine the procedures to be utilized for discovery if 
the parties cannot agree on such procedures.



Sec. 590.306  Subpoenas.

    (a) Subpoenas for the attendance of witnesses at a trial-type 
hearing or for

[[Page 76]]

the production of documentary evidence may be issued upon the initiative 
of the Assistant Secretary or presiding official, or upon written motion 
of a party or oral motion of a party during a conference, oral 
presentation, or trial-type hearing, if the Assistant Secretary or 
presiding official determines that the evidence sought is relevant and 
material.
    (b) Motions for the issuance of a subpoena shall specify the 
relevance, materiality, and scope of the testimony or documentary 
evidence sought, including, as to documentary evidence, specification to 
the extent possible of the documents sought and the facts to be proven 
by them, the issues to which they relate, and why the information or 
evidence was not obtainable through discovery procedures agreed upon by 
the parties.
    (c) If service of a subpoena is made by a United States Marshal or a 
Deputy United States Marshal, service shall be evidenced by their 
return. If made by another person, that person shall affirm that service 
has occurred and file an affidavit to that effect with the original 
subpoena. A witness who is subpoenaed shall be entitled to witness fees 
as provided in Sec. 590.315(c).



Sec. 590.307  Depositions.

    (a) Upon motion filed by a party, the Assistant Secretary or 
presiding official may authorize the taking of testimony of any witness 
by deposition. Unless otherwise directed in the authorization issued, a 
witness being deposed may be examined regarding any matter which is 
relevant to the issues involved in the pending proceeding.
    (b) Parties authorized to take a deposition shall provide written 
notice to the witness and all other parties at least ten (10) days in 
advance of the deposition unless such advance notice is waived by mutual 
agreement of the parties.
    (c) The requesting motion and notice shall state the name and 
mailing address of the witness, delineate the subject matters on which 
the witness is expected to testify, state the reason why the deposition 
should be taken, indicate the time and place of the deposition, and 
provide the name and mailing address of the person taking the 
deposition.
    (d) A witness whose testimony is taken by deposition shall be sworn 
in or shall affirm concerning the matter about which the witness has 
been called to testify before any questions are asked or testimony 
given. A witness deposed shall be entitled to witness fees as provided 
in Sec. 590.315(c).
    (e) The moving party shall file the entire deposition with FE after 
it has been subscribed and certified. No portion of the deposition shall 
constitute a part of the record in the proceedings unless received in 
evidence, in whole or in part, by the Assistant Secretary or presiding 
official.



Sec. 590.308  Admissions of facts.

    (a) At any time prior to the end of a trial-type hearing, or, if 
there is no trial-type hearing, prior to the issuance of a final opinion 
and order under Sec. 590.404, any party, the Assistant Secretary, or 
the presiding official may serve on any party a written request for 
admission of the truth of any matters at issue in the proceeding that 
relate to statements or opinions of fact or of the application of law to 
fact.
    (b) A matter shall be considered admitted and conclusively 
established for the purposes of any proceeding in which a request for 
admission is served unless, within fifteen (15) days of such time limit 
established by the Assistant Secretary or presiding official, the party 
to whom the request is directed answers or objects to the request. Any 
answer shall specifically admit or deny the matter, or set forth in 
detail the reasons why the answering party cannot truthfully admit or 
deny the matter. An answering party may not give lack of information or 
knowledge as a reason for failure to admit or deny, unless the answering 
party states that, after reasonable inquiry, the answering party has 
been unable to obtain sufficient information to admit or deny. If an 
objection is made, the answering party shall state the reasons for the 
objection.
    (c) If the Assistant Secretary or presiding official determines that 
an answer to a request for admission does not comply with the 
requirements of this section, the Assistant Secretary or

[[Page 77]]

presiding official may order either that the matter is admitted or that 
an amended answer be served.
    (d) A copy of all requests for admission and answers thereto shall 
be filed with FE in accordance with Sec. 590.103. Copies of any 
documents referenced in the request shall be served with the request 
unless they are known to be in the possession of the other parties.
    (e) The Assistant Secretary or presiding official may limit the 
number of requests for admission of facts in order to expedite a 
proceeding through elimination of duplicative requests.



Sec. 590.309  Settlements.

    The parties may conduct settlement negotiations. If settlement 
negotiations are conducted during a conference, at the request of one of 
the parties, the Assistant Secretary or presiding official may order 
that the discussions be off-the-record with no transcript of such 
settlement negotiations being prepared for inclusion in the official 
record of the proceeding. No offer of settlement, comment or discussion 
by the parties with respect to an offer of settlement shall be subject 
to discovery or admissible into evidence against any parties who object 
to its admission.



Sec. 590.310  Opportunity for additional procedures.

    Any party may file a motion requesting additional procedures, 
including the opportunity to file written comments, request written 
interrogatories or other discovery procedures, or request that a 
conference, oral presentation or trial-type hearing be held. The motion 
shall describe what type of procedure is requested and include the 
information required by Sec. Sec. 590.311, 590.312 and 590.313, as 
appropriate. Failure to request additional procedures within the time 
specified in the notice of application or in the notice of procedure, if 
applicable, shall constitute a waiver of that right unless the Assistant 
Secretary for good cause shown grants additional time for requesting 
additional procedures. If no time limit is specified in the notice or 
order, additional procedures may be requested at any time prior to the 
issuance of a final opinion and order. At any time during a proceeding, 
the Assistant Secretary or presiding official may on his or her own 
initiative determine to provide additional procedures.

[54 FR 53531, Dec. 29, 1989; 55 FR 14916, Apr. 19, 1990]



Sec. 590.311  Conferences.

    (a) Upon motion by a party, a conference of the parties may be 
convened to adjust or settle the proceedings, set schedules, delineate 
issues, stipulate certain issues of fact or law, set procedures, and 
consider other relevant matters where it appears that a conference will 
materially advance the proceeding. The Assistant Secretary or presiding 
official may delineate the issues which are to be considered and may 
place appropriate limitations on the number of intervenors who may 
participate, if two or more intervenors have substantially like 
interests.
    (b) A motion by a party for a conference shall include a specific 
showing why a conference will materially advance the proceeding.
    (c) Conferences shall be recorded, unless otherwise ordered by the 
Assistant Secretary or presiding official, and the transcript shall be 
made a part of the official record of the proceeding and available to 
the public.



Sec. 590.312  Oral presentations.

    (a) Any party may file a motion requesting an opportunity to make an 
oral presentation of views, arguments, including arguments of counsel, 
and data on any aspect of the proceeding. The motion shall identify the 
substantial question of fact, law or policy at issue and demonstrate 
that it is material and relevant to the merits of the proceeding. The 
party may submit material supporting the existence of substantial 
issues. The Assistant Secretary or presiding official ordinarily will 
grant a party's motion for an oral presentation, if the Assistant 
Secretary or presiding official determines that a substantial question 
of fact, law, or policy is at issue in the proceeding and illumination 
of that question will be aided materially by such an oral presentation.
    (b) The Assistant Secretary or presiding official may require 
parties making oral presentations to file briefs

[[Page 78]]

or other documents prior to the oral presentation. The Assistant 
Secretary or presiding official also may delineate the issues that are 
to be considered at the oral presentation and place appropriate 
limitations on the number of intervenors who may participate if two or 
more intervenors have substantially like interests.
    (c) Oral presentations shall be conducted in an informal manner with 
the Assistant Secretary or the presiding official and other decisional 
employees presiding as a panel. The panel may question those parties 
making an oral presentation. Cross-examination by the parties and other 
more formal procedures used in trial-type hearings will not be available 
in oral presentations. The oral presentation may be, but need not be, 
made by legal counsel.
    (d) Oral presentations shall be recorded, and the transcript shall 
be made part of the official record of the proceeding and available to 
the public.



Sec. 590.313  Trial-type hearings.

    (a) Any party may file a motion for a trial-type hearing for the 
purpose of taking evidence on relevant and material issues of fact 
genuinely in dispute in the proceeding. The motion shall identify the 
factual issues in dispute and the evidence that will be presented. The 
party must demonstrate that the issues are genuinely in dispute, 
relevant and material to the decision and that a trial-type hearing is 
necessary for a full and true disclosure of the facts. The Assistant 
Secretary or presiding official shall grant a party's motion for a 
trial-type hearing, if the Assistant Secretary or presiding official 
determines that there is a relevant and material factual issue genuinely 
in dispute and that a trial-type hearing is necessary for a full and 
true disclosure of the facts.
    (b) In trial-type hearings, the parties shall have the right to be 
represented by counsel, to request discovery, to present the direct and 
rebuttal testimony of witnesses, to cross-examine witnesses under oath, 
and to present documentary evidence.
    (c) The Assistant Secretary or presiding official upon his or her 
own initiative or upon the motion of any party may consolidate any 
proceedings involving common questions of fact in whole or in part for a 
trial-type hearing. The Assistant Secretary or presiding official may 
also place appropriate limitations on the number of intervenors who may 
participate if two or more intervenors have substantially like 
interests.
    (d) The Assistant Secretary or presiding official may make such 
rulings for trial-type hearings, including delineation of the issues and 
limitation of cross-examination of a witness, as are necessary to obtain 
a full and true disclosure of the facts and to limit irrelevant, 
immaterial, or unduly repetitious evidence.
    (e) At trial-type hearings, the Assistant Secretary or presiding 
official, or any other decisional employee directed by the Assistant 
Secretary or presiding official, may call witnesses for testimony or 
presenting exhibits that directly relate to a particular issue of fact 
to be considered at the hearing. The Assistant Secretary or presiding 
official, or any other decisional employee directed by the Assistant 
Secretary or presiding official, may also question witnesses offered by 
the parties concerning their testimony.
    (f) Trial-type hearings shall be recorded, and the transcript shall 
be made part of the official record of the proceeding and available to 
the public.



Sec. 590.314  Presiding officials.

    (a) The Assistant Secretary may designate a presiding official to 
conduct any stage of the proceeding, including officiating at a 
conference, oral presentation, or trial-type hearing. The presiding 
official shall have the full authority of the Assistant Secretary during 
such proceedings.
    (b) A presiding official at a conference, oral presentation, or 
trial-type hearing shall have the authority to regulate the conduct of 
the proceeding including, but not limited to, determination of the 
issues to be raised during the course of the conference, oral 
presentation, or trial-type hearing, administering oaths or 
affirmations, directing discovery, ruling on objections to the 
presentation of testimony or exhibits, receiving relevant and material

[[Page 79]]

evidence, requiring the advance submission of written testimony and 
exhibits, ruling on motions, determining the format, directing that 
briefs be filed with respect to issues raised or to be raised during the 
course of the conference, oral presentation or trial-type hearing, 
questioning witnesses, taking reasonable measures to exclude duplicative 
material, and placing limitations on the number of witnesses to be 
called by a party.



Sec. 590.315  Witnesses.

    (a) The Assistant Secretary or presiding official may require that 
the direct testimony of witnesses in trial-type hearings be submitted in 
advance of the hearing and be under oath, and in written form.
    (b) Witnesses who testify in trial-type hearings shall be under oath 
or affirmation before being allowed to testify.
    (c) Witnesses subpoenaed pursuant to Sec. 590.306 shall be paid the 
same fees and mileage as paid for like services in the District Courts 
of the United States.
    (d) Witnesses subpoenaed pursuant to Sec. 590.307 shall be paid the 
same fees and mileage as paid for like services in the District Court of 
the United States.

[54 FR 53531, Dec. 29, 1989; 55 FR 14916, Apr. 19, 1990]



Sec. 590.316  Shortened proceedings.

    In any proceeding where, in response to a notice of application or 
notice of procedures, if applicable, no party files a motion requesting 
additional procedures, including the right to file written comments, or 
the holding of a conference, oral presentation, or trial-type hearing, 
or where the Assistant Secretary determines that such requested 
additional procedures are not required pursuant to Sec. Sec. 590.310, 
590.311, 590.312 and 590.313, the Assistant Secretary may issue a final 
opinion and order on the basis of the official record, including the 
application and all other filings. In any proceeding in which the 
Assistant Secretary intends to deny the application or grant the 
application with the attachment of material conditions unknown to, or 
likely to be opposed by, the applicant, solely on the basis of the 
application and responses to the notice of application or notice of 
procedures, if applicable, without additional procedures, the Assistant 
Secretary shall advise the parties in writing generally of the issues of 
concern to the Assistant Secretary upon which the denial or material 
conditions would be based and provide them with an opportunity to 
request additional procedures pursuant to Sec. Sec. 590.310, 590.311, 
590.312 and 590.313.



Sec. 590.317  Complaints.

    (a) Any person may file a complaint objecting to the actions by any 
other person under any statute, rule, order or authorization applicable 
to an existing import or export authorization over which FE has 
jurisdiction. No particular form is required. The complaint must be 
filed with FE in writing and must contain the name and address of the 
complainant and the respondent and state the facts forming the basis of 
the complaint.
    (b) A complaint concerning an existing import or export 
authorization shall be served on all parties to the original import or 
export authorization proceeding either by the complainant or by FE if 
the complainant has made a good faith effort but has been unable to 
effect service.
    (c) The Assistant Secretary may issue an order to show cause under 
Sec. 590.401, or may provide opportunity for additional procedures 
pursuant to Sec. Sec. 590.310, 590.311, 590.312, or Sec. 590.313, in 
order to determine what action should be taken in response to the 
complaint.



                      Subpart D_Opinions and Orders



Sec. 590.401  Orders to show cause.

    A proceeding under this part may commence upon the initiative of the 
Assistant Secretary or in response to an application by any person 
requesting FE action against any other person alleged to be in 
contravention or violation of any authorization, statute, rule, order, 
or law administered by FE applicable to the import or export of natural 
gas, or for any other alleged wrong involving importation or exportation 
of natural gas over which FE has jurisdiction. Any show cause order 
issued shall identify the matters of interest or the matters complained 
of

[[Page 80]]

that the Assistant Secretary is inquiring about, and shall be deemed to 
be tentative and for the purpose of framing issues for consideration and 
decision. The respondent named in the order shall respond orally or in 
writing, or both, as required by the order. A show cause order is not a 
final opinion and order.



Sec. 590.402  Conditional orders.

    The Assistant Secretary may issue a conditional order at any time 
during a proceeding prior to issuance of a final opinion and order. The 
conditional order shall include the basis for not issuing a final 
opinion and order at that time and a statement of findings and 
conclusions. The findings and conclusions shall be based solely on the 
official record of the proceeding.



Sec. 590.403  Emergency interim orders.

    Where consistent with the public interest, the Assistant Secretary 
may waive further procedures and issue an emergency interim order 
authorizing the import or export of natural gas. After issuance of the 
emergency interim order, the proceeding shall be continued until the 
record is complete, at which time a final opinion and order shall be 
issued. The Assistant Secretary may attach necessary or appropriate 
terms and conditions to the emergency interim order to ensure that the 
authorized action will be consistent with the public interest.



Sec. 590.404  Final opinions and orders.

    The Assistant Secretary shall issue a final opinion and order and 
attach such conditions thereto as may be required by the public interest 
after completion and review of the record. The final opinion and order 
shall be based solely on the official record of the proceeding and 
include a statement of findings and conclusions, as well as the reasons 
or basis for them, and the appropriate order, condition, sanction, 
relief or denial.



Sec. 590.405  Transferability.

    Authorizations by the Assistant Secretary to import or export 
natural gas shall not be transferable or assignable, unless specifically 
authorized by the Assistant Secretary.



Sec. 590.406  Compliance with orders.

    Any person required or authorized to take any action by a final 
opinion and order of the Assistant Secretary shall file with FE, within 
thirty (30) days after the requirement or authorization becomes 
effective, a notice, under oath, that such requirement has been complied 
with or such authorization accepted or otherwise acted upon, unless 
otherwise specified in the order.



Sec. 590.407  Reports of changes.

    Any person authorized to import or export natural gas has a 
continuing obligation to give the Assistant Secretary written 
notification, as soon as practicable, of any prospective or actual 
changes to the information submitted during the application process upon 
which the authorization was based, including, but not limited to, 
changes to: The parties involved in the import or export arrangement, 
the terms and conditions of any applicable contracts, the place of entry 
or exit, the transporters, the volumes accepted or offered, or the 
import or export price. Any notification filed under this section shall 
contain the FE docket number(s) to which it relates. Compliance with 
this section does not relieve an importer or exporter from 
responsibility to file the appropriate application to amend a previous 
import or export authorization under this part whenever such changes are 
contrary to or otherwise not permitted by the existing authorization.



                  Subpart E_Applications for Rehearing



Sec. 590.501  Filing.

    (a) An application for rehearing of a final opinion and order, 
conditional order, or emergency interim order may be filed by any party 
aggrieved by the issuance of such opinion and order within thirty (30) 
days after issuance. The application shall be served on all parties.
    (b) The application shall state concisely the alleged errors in the 
final opinion and order, conditional order, or emergency interim order 
and must set forth specifically the ground or grounds upon which the 
application is

[[Page 81]]

based. If an order is sought to be vacated, reversed, or modified by 
reason of matters that have arisen since the issuance of the final 
opinion and order, conditional order, or emergency interim order, the 
matters relied upon shall be set forth with specificity in the 
application. The application shall also comply with the filing 
requirements of Sec. 590.103.



Sec. 590.502  Application is not a stay.

    The filing of an application for rehearing does not operate as a 
stay of the Assistant Secretary's order, unless specifically ordered by 
the Assistant Secretary.



Sec. 590.503  Opinion and order on rehearing.

    Upon application for rehearing, the Assistant Secretary may grant or 
deny rehearing or may abrogate or modify the final opinion and order, 
conditional order, or emergency interim order with or without further 
proceedings.



Sec. 590.504  Denial by operation of law.

    Unless the Assistant Secretary acts upon the application for 
rehearing within thirty (30) days after it is filed, it is deemed to be 
denied. Such denial shall constitute final agency action for the purpose 
of judicial review.



Sec. 590.505  Answers to applications for rehearing.

    No answers to applications for rehearing shall be entertained. Prior 
to the issuance of any final opinion and order on rehearing, however, 
the Assistant Secretary may afford the parties an opportunity to file 
briefs or answers and may order that a conference, oral presentation, or 
trial-type hearing be held on some or all of the issues presented by an 
application for rehearing.

[[Page 82]]



                   SUBCHAPTER H_ASSISTANCE REGULATIONS


PART 600_FINANCIAL ASSISTANCE RULES--Table of Contents



                            Subpart A_General

Sec.
600.1 Purpose.
600.2 Applicability.
600.3 Definitions.
600.4 Deviations.
600.5 Selection of award instrument.
600.6 Eligibility.
600.7 Small and disadvantaged and women-owned business participation.
600.8 Funding Opportunity Announcement.
600.9 [Reserved]
600.10 Form and content of applications.
600.11-12 [Reserved]
600.13 Merit review.
600.14 [Reserved]
600.15 Authorized uses of information.
600.16 Legal authority and effect of an award.
600.17 Contents of Award.
600.18 [Reserved]
600.19 Notification to unsuccessful applicants.
600.20 Maximum DOE obligation.
600.21 Access to records.
600.22 Disputes and appeals.
600.23 [Reserved]
600.24 Noncompliance.
600.25 Suspension and termination.
600.26-28 [Reserved]
600.29 Fixed obligation awards.
600.30 Cost sharing.
600.31 Research misconduct.

Subpart B_Uniform Administrative Requirements for Grants and Cooperative 
 Agreements With Institutions of Higher Education, Hospitals, and Other 
                         Nonprofit Organizations

                                 General

600.100 Purpose.
600.101 Definitions.
600.102 Effect on other issuances.
600.103 Deviations.
600.104 Subawards.

                         Pre-Award Requirements

600.110 Purpose.
600.111 Pre-award policies.
600.112 Forms for applying for Federal assistance.
600.113 Debarment and suspension.
600.114 Special award conditions.
600.115 Metric system of measurement.
600.116 Resource Conservation and Recovery Act.
600.117 [Reserved]

                         Post-Award Requirements

                    Financial and Program Management

600.120 Purpose of financial and program management.
600.121 Standards for financial management systems.
600.122 Payment.
600.123 Cost sharing or matching.
600.124 Program income.
600.125 Revision of budget and program plans.
600.126 Non-Federal audits.
600.127 Allowable costs.
600.128 Period of availability of funds.

                           Property Standards

600.130 Purpose of property standards.
600.131 Insurance coverage.
600.132 Real property.
600.133 Federally-owned and exempt property.
600.134 Equipment.
600.135 Supplies and other expendable property.
600.136 Intangible property.
600.137 Property trust relationship.

                          Procurement Standards

600.140 Purpose of procurement standards.
600.141 Recipient responsibilities.
600.142 Codes of conduct.
600.143 Competition.
600.144 Procurement procedures.
600.145 Cost and price analysis.
600.146 Procurement records.
600.147 Contract administration.
600.148 Contract provisions.
600.149 Resource Conservation and Recovery Act (RCRA).

                           Reports and Records

600.150 Purpose of reports and records.
600.151 Monitoring and reporting program performance.
600.152 Financial reporting.
600.153 Retention and access requirements for records.

                       Termination and Enforcement

600.160 Purpose of termination and enforcement.
600.161 Termination.
600.162 Enforcement.

                      After-the-Award Requirements

600.170 Purpose.
600.171 Closeout procedures.
600.172 Subsequent adjustments and continuing responsibilities.

[[Page 83]]

600.173 Collection of amounts due.

                          Additional Provisions

Appendix A to Subpart B of Part 600--Contract Provisions

Subpart C_Uniform Administrative Requirements for Grants and Cooperative 
                Agreements to State and Local Governments

                                 General

600.200 Purpose and scope of this subpart.
600.201 Scope of Sec. Sec. 600.200 through 600.205.
600.202 Definitions.
600.203 Applicability.
600.204 Effect on other issuances.
600.205 Additions and exceptions.

                         Pre-Award Requirements

600.210 Forms for applying for grants.
600.211 State plans.
600.212 Special grant or subgrant conditions for ``high- risk'' 
          recipients.

                         Post-Award Requirements

                        Financial Administration

600.220 Standards for financial management systems.
600.221 Payment.
600.222 Allowable costs.
600.223 Period of availability of funds.
600.224 Matching or cost sharing.
600.225 Program income.
600.226 Non-Federal audit.

                    Changes, Property, and Subawards

600.230 Changes.
600.231 Real property.
600.232 Equipment.
600.233 Supplies.
600.234 Copyrights.
600.235 Subawards to debarred and suspended parties.
600.236 Procurement.
600.237 Subgrants.

               Reports, Records Retention, and Enforcement

600.240 Monitoring and reporting program performance.
600.241 Financial reporting.
600.242 Retention and access requirements for records.
600.243 Enforcement.
600.244 Termination for convenience.

                      After-the-Grant Requirements

600.250 Closeout.
600.251 Later disallowances and adjustments.
600.252 Collection of amounts due.

                         Entitlements [Reserved]

    Subpart D_Administrative Requirements for Grants and Cooperative 
                Agreements With For-Profit Organizations

                                 General

600.301 Purpose.
600.302 Definitions.
600.303 Deviations.
600.304 Special award conditions.
600.305 Debarment and suspension.
600.306 Metric system of measurement.

                         Post-Award Requirements

                    Financial and Program Management

600.310 Purpose of financial and program management.
600.311 Standards for financial management systems.
600.312 Payment.
600.313 Cost sharing or matching.
600.314 Program income.
600.315 Revision of budget and program plans.
600.316 Audits.
600.317 Allowable costs.
600.318 Fee and profit.

                           Property Standards

600.320 Purpose of property standards.
600.321 Real property and equipment.
600.322 Federally owned property.
600.323 Property management system.
600.324 Supplies.
600.325 Intellectual property.

                          Procurement Standards

600.330 Purpose of procurement standards.
600.331 Requirements.

                           Reports and Records

600.340 Purpose of reports and records.
600.341 Monitoring and reporting program and financial performance.
600.342 Retention and access requirements for records.

                       Termination and Enforcement

600.350 Purpose of termination and enforcement.
600.351 Termination.
600.352 Enforcement.
600.353 Disputes and appeals.

                      After-the-Award Requirements

600.360 Purpose.
600.361 Closeout procedures.
600.362 Subsequent adjustments and continuing responsibilities.
600.363 Collection of amounts due.

                          Additional Provisions

600.380 Purpose.

[[Page 84]]

600.381 Special provisions for Small Business Innovation Research 
          Grants.

Appendix A to Subpart D of Part 600--Patent and Data Provisions
Appendix B to Subpart D of Part 600--Contract Provisions

Subpart E [Reserved]

  Subpart F_Eligibility Determination for Certain Financial Assistance 
                  Programs_General Statement of Policy

600.500 Purpose and scope.
600.501 Definitions.
600.502 What must DOE determine.
600.503 Determining the economic interest of the United States.
600.504 Information an applicant must submit.
600.505 Other information DOE may consider.

Appendix A to Part 600--Generally Applicable Requirements
Appendix B to Part 600--Audit Report Distributees

    Authority: 42 U.S.C. 7101 et seq; 31 U.S.C. 6301-6308; 50 U.S.C. 
2401 et seq., unless otherwise noted.



                            Subpart A_General

    Source: 61 FR 7166, Feb. 26, 1996, unless otherwise noted.



Sec. 600.1  Purpose.

    This part implements the Federal Grant and Cooperative Agreement 
Act, Pub. L. 95-224, as amended by Pub. L. 97-258 (31 U.S.C. 6301-6308), 
and establishes uniform policies and procedures for the award and 
administration of DOE grants and cooperative agreements. This subpart 
(Subpart A) sets forth the general policies and procedures applicable to 
the award and administration of grants, cooperative agreements, and 
technology investment agreements. The specific guidance for technology 
investment agreements is contained in part 603.

[61 FR 7166, Feb. 26, 1996, as amended at 70 FR 69253, Nov. 15, 2005]



Sec. 600.2  Applicability.

    (a) Except as otherwise provided by Federal statute or program rule, 
this part applies to applications, funding opportunity announcement, and 
new, continuation, and renewal awards (and any subsequent subawards).
    (b) Any new, continuation, or renewal award (and any subsequent 
subaward) shall comply with any applicable Federal statute, Federal 
rule, Office of Management and Budget (OMB) Circular and Governmentwide 
guidance in effect as of the date of such award.
    (c) Financial assistance to foreign entities is governed, to the 
extent appropriate, by this part and by the administrative requirements 
and cost principles applicable to their respective recipient type, e.g, 
governmental, non-profit, commercial.

[61 FR 7166, Feb. 26, 1996, as amended at 74 FR 44275, Aug. 28, 2009]



Sec. 600.3  Definitions.

    Amendment means the written document executed by a DOE Contracting 
Officer that changes one or more terms or conditions of an existing 
financial assistance award.
    Award means the written document executed by a DOE Contracting 
Officer, after an application is approved, which contains the terms and 
conditions for providing financial assistance to the recipient.
    Budget period means the interval of time, specified in the award, 
into which a project is divided for budgeting and funding purposes.
    Continuation award means an award for a succeeding or subsequent 
budget period after the initial budget period of either an approved 
project period or renewal thereof.
    Contract means a written procurement contract executed by a 
recipient or subrecipient for the acquisition of property or services 
under a financial assistance award.
    Contracting Officer means the DOE official authorized to execute 
awards on behalf of DOE and who is responsible for the business 
management and non-program aspects of the financial assistance process.
    Cost sharing or matching means that portion of project or programs 
costs not borne by the Federal Government.
    DOE Patent Counsel means the Department of Energy Patent Counsel 
assisting the Contracting Officer in the review and coordination of 
patents and data related items.
    Financial assistance means the transfer of money or property to a 
recipient

[[Page 85]]

or subrecipient to accomplish a public purpose of support or stimulation 
authorized by Federal statute. For purposes of this part, financial 
assistance instruments are grants and cooperative agreements and 
subawards.
    Head of Contracting Activity or HCA means a DOE official with senior 
management authority for the award and administration of financial 
assistance instruments within one or more DOE organizational elements.
    Merit review means a thorough, consistent, and objective examination 
of applications based on pre-established criteria by persons who are 
independent of those submitting the applications and who are 
knowledgeable in the field of endeavor for which support is requested.
    Nonprofit organization means any corporation, trust, foundation, or 
institution which is entitled to exemption under section 501(c)(3) of 
the Internal Revenue Code, or which is not organized for profit and no 
part of the net earnings of which inure to the benefit of any private 
shareholder or individual (except that the definition of ``nonprofit 
organization'' at 48 CFR 27.301 shall apply for patent matters set forth 
at Sec. Sec. 600.136 and 600.325).
    Program rule means a rule issued by a DOE program office for the 
award and administration of financial assistance which may describe the 
program's purpose or objectives, eligibility requirements for 
applicants, types of program activities or areas to be supported, 
evaluation and selection process, cost sharing requirements, etc. These 
rules usually supplement the generic policies and procedures for 
financial assistance contained in this part.
    Project means the set of activities described in an application, 
State plan, or other document that is approved by DOE for financial 
assistance (whether such financial assistance represents all or only a 
portion of the support necessary to carry out those activities.)
    Project period means the total period of time indicated in an award 
during which DOE expects to provide financial assistance. A project 
period may consist of one or more budget periods and may be extended by 
DOE.
    Recipient means the organization, individual, or other entity that 
receives an award from DOE and is financially accountable for the use of 
any DOE funds or property provided for the performance of the project, 
and is legally responsible for carrying out the terms and conditions of 
the award.
    Renewal award means an award which adds one or more additional 
budget periods to an existing project period.
    Research and development means all research activities, both basic 
and applied, and all development activities that are supported at 
universities, colleges, and other non-profit institutions and commercial 
organizations. ``Research'' is defined as a systematic study directed 
toward fuller scientific knowledge or understanding of the subject 
studied. The term research also includes activities involving the 
training of individuals in research techniques where such activities 
utilize the same facilities as other research and development activities 
and where such activities are not included in the instruction function. 
``Development'' is the systematic use of knowledge and understanding 
gained from research directed toward the production of useful materials, 
devices, systems, or methods, including design and development of 
prototypes and processes.
    Total Project Cost means all allowable costs, as set forth in the 
applicable Federal cost principles, incurred in accomplishing the 
objective of the project during the project period, including the value 
of contributions made by third parties and costs incurred by Federally 
Funded Research and Development Centers.

[61 FR 7166, Feb. 26, 1996, as amended at 64 FR 56420, Oct. 20, 1999; 68 
FR 50650, Aug. 21, 2003; 74 FR 44275, Aug. 28, 2009]



Sec. 600.4  Deviations.

    (a) General. (1) A deviation is the use of any policy, procedure, 
form, standard, term, or condition which varies from a requirement of 
this part, or the waiver of any such requirement, unless such use or 
waiver is authorized or precluded by Federal statute. The use of 
optional or discretionary provisions of this part, including special 
restrictive conditions used in accordance with Sec. Sec. 600.114, 
600.212, and 600.304 are not deviations. Awards to foreign entities

[[Page 86]]

and the waiver of the cost sharing requirements in Sec. 600.30 are not 
subject to this section.
    (2) A single-case deviation is a deviation which applies to one 
financial assistance transaction and one applicant, recipient, or 
subrecipient only.
    (3) A class deviation is a deviation which applies to more than one 
financial assistance transaction, applicant, recipient, or subrecipient.
    (b) The DOE officials specified in paragraph (c) of this section may 
authorize a deviation only upon a written determination that the 
deviation is--
    (1) Necessary to achieve program objectives;
    (2) Necessary to conserve public funds;
    (3) Otherwise essential to the public interest; or
    (4) Necessary to achieve equity.
    (c) Approval procedures. (1) A deviation request must be in writing 
and must be submitted to the responsible DOE Contracting Officer. An 
applicant for a subaward or a subrecipient shall submit any such request 
through the recipient.
    (2) Except as provided in paragraph (c)(3) of this section--
    (i) A single-case deviation may be authorized by the responsible 
HCA.
    (ii) A class deviation may be authorized by the Director, 
Procurement and Assistance Management or designee.
    (3) Whenever the approval of OMB, other Federal agency, or other DOE 
office is required to authorize a deviation, the proposed deviation must 
be submitted to the Director, Procurement and Assistance Management or 
designee for concurrence prior to submission to the authorizing 
official.
    (d) Notice. Whenever a request for a class deviation is approved, 
DOE shall publish a notice in the Federal Register at least 15 days 
before the class deviation becomes effective. Whenever a class deviation 
is contained in a proposed program rule, the preamble to the proposed 
rule shall describe the purpose and scope of the deviation.
    (e) Subawards. A recipient may use a deviation in a subaward only 
with the prior written approval of a DOE Contracting Officer.

[61 FR 7166, Feb. 26, 1996, as amended at 64 FR 56420, Oct. 20, 1999; 68 
FR 50650, Aug. 21, 2003; 74 FR 44275, Aug. 28, 2009]



Sec. 600.5  Selection of award instrument.

    (a) If DOE has administrative discretion in the selection of the 
award instrument, the DOE decision as to whether the relationship is 
principally one of procurement or financial assistance shall be made 
pursuant to the Federal Grant and Cooperative Agreement Act as codified 
at 31 U.S.C. 6301-6306. A grant or cooperative agreement shall be the 
appropriate instrument, in accordance with this part, when the principal 
purpose of the relationship is the transfer of money or property to 
accomplish a public purpose of support or stimulation authorized by 
Federal statute. In selecting the type of financial assistance 
instrument, DOE shall limit involvement between itself and the recipient 
in the performance of a project to the minimum necessary to achieve DOE 
program objectives.
    (b) When it is anticipated that substantial involvement will be 
necessary between DOE and the recipient during performance of the 
contemplated activity, the award instrument shall be a cooperative 
agreement rather than a grant. Every cooperative agreement shall 
explicitly state the substantial involvement anticipated between DOE and 
the recipient during the performance of the project. Substantial 
involvement exists if:
    (1) Responsibility for the management, control, or direction of the 
project is shared by DOE and the recipient; or
    (2) Responsibility for the performance of the project is shared by 
DOE and the recipient.
    (c) Providing technical assistance or guidance of a programmatic 
nature to a recipient does not constitute substantial involvement if:
    (1) the recipient is not required to follow such guidance;
    (2) the technical assistance or guidance is not expected to result 
in continuing DOE involvement in the performance of the project; or

[[Page 87]]

    (3) The technical assistance or guidance pertains solely to the 
administrative requirements of the award.
    (d) In cooperative agreements, DOE has the right to intervene in the 
conduct or performance of project activities for programmatic reasons. 
Intervention includes the interruption or modification of the conduct or 
performance of project activities. Suspension or termination of the 
cooperative agreement under Sec. Sec. 600.162, 600.243 and 600.352 does 
not constitute intervention in the conduct or performance of project 
activities.

[61 FR 7166, Feb. 26, 1996, as amended at 74 FR 44275, Aug. 28, 2009]



Sec. 600.6  Eligibility.

    (a) General. DOE shall solicit applications for financial assistance 
in a manner which provides for the maximum amount of competition 
feasible.
    (b) Restricted eligibility. If DOE restricts eligibility, an 
explanation of why the restriction of eligibility is considered 
necessary shall be included in the funding opportunity announcement, 
program rule, or published notice.
    (1) If the aggregate amount of DOE funds available for award under a 
funding opportunity announcement or published notice is $1million or 
more, unless authorized by statute or program rule, such restriction of 
eligibility shall be:
    (i) Supported by a written determination initiated by the program 
office;
    (ii) Concurred in by legal counsel and the Contracting Officer; and
    (iii) Approved by an official no less than one level below the 
responsible program Assistant Secretary, Deputy Administrator, or other 
official of equivalent authority.
    (2) Where the amount of DOE funds is less than $1 million, the 
cognizant HCA and the Contracting Officer may approve the determination.
    (c) Noncompetitive financial assistance. DOE may award a grant or 
cooperative agreement or technology investment agreement on a 
noncompetitive basis only if the application satisfies one or more of 
the follow selection criteria:.
    (1) The activity to be funded is necessary to the satisfactory 
completion of, or is a continuation or renewal of, an activity presently 
being funded by DOE or another Federal agency, and for which competition 
for support would have a significant adverse effect on continuity or 
completion of the activity.
    (2) The activity is being or would be conducted by the applicant 
using its own resources or those donated or provided by third parties; 
however, DOE support of that activity would enhance the public benefits 
to be derived and DOE knows of no other entity which is conducting or is 
planning to conduct such an activity.
    (3) The applicant is a unit of government and the activity to be 
supported is related to performance of a governmental function within 
the subject jurisdiction, thereby precluding DOE provision of support to 
another entity.
    (4) The applicant has exclusive domestic capability to perform the 
activity successfully, based upon unique equipment, proprietary data, 
technical expertise, or other such unique qualifications.
    (5) The award implements an agreement between the United States 
Government and a foreign government to fund a foreign applicant.
    (6) Time constraints associated with a public health, safety, 
welfare or national security requirement preclude competition.
    (7) The proposed project was submitted as an unsolicited proposal 
and represents a unique or innovative idea, method, or approach that 
would not be eligible for financial assistance under a recent, current, 
or planned funding opportunity announcement, and if, as determined by 
DOE, a competitive funding opportunity announcement would not be 
appropriate.
    (8) The responsible program Assistant Secretary, Deputy 
Administrator, or other official of equivalent authority determines that 
a noncompetitive award is in the public interest. This authority may not 
be delegated.
    (d) Approval requirements. (1) Where the amount of DOE funds is $1 
million or greater, determinations of noncompetitive awards shall be:
    (i) Documented in writing;
    (ii) Concurred in by the responsible program technical official and 
local legal counsel; and

[[Page 88]]

    (iii) Approved, prior to award, by the responsible program Assistant 
Secretary, Deputy Administrator, or official of equivalent authority and 
the Contracting Officer. The approval authority may be delegated to one 
organizational level below the Assistant Secretary, Deputy 
Administrator, or official of equivalent authority.
    (2) Where the amount of DOE funds is less than $1 million, 
determinations of noncompetitive awards shall be:
    (i) Documented in writing;
    (ii) Concurred in by local legal counsel, unless for a particular 
award or class of awards of $1 million or less, review is waived by 
legal counsel; and
    (iii) Approved by the cognizant HCA and the Contracting Officer.

[74 FR 44275, Aug. 28, 2009, as amended at 74 FR 48850, Sept. 25, 2009]



Sec. 600.7  Small and disadvantaged and women-owned business participation.

    (a) DOE encourages the participation in financial assistance awards 
of small businesses, including those owned by socially and economically 
disadvantaged individuals and women, of historically black colleges, and 
of colleges and universities with substantial minority enrollments.
    (b) For definitions of the terms in paragraph (a) of this section, 
see the Higher Education Act of 1965, and 15 U.S.C. 644, as amended by 
the Federal Acquisition Streamlining Act (FASA), and implementing 
regulations under FASA issued by the Office of Federal Procurement 
Policy.
    (c) When entering into contracts under financial assistance awards, 
recipients and subrecipients shall comply with the requirements of 
Sec. Sec. 600.144, 600.236 and 600.331, as applicable.

[61 FR 7166, Feb. 26, 1996, as amended at 74 FR 44276, Aug. 28, 2009]



Sec. 600.8  Funding Opportunity Announcement.

    (a) General.  Funding Opportunity Announcements (FOA) include any 
issuance used to announce funding opportunities that would result in the 
award of a discretionary grant, cooperative agreement, or technology 
investment agreement, whether it is called a program announcement, 
program notice, solicitation, broad agency announcement, research 
announcement, notice of program interest, or something else.
    (1) A Program Assistant Secretary (or official of equivalent 
authority) may annually issue a program notice describing research areas 
in which financial assistance is being made available. Such notice shall 
also state whether the research areas covered by the notice are to be 
added to those listed in a previously issued program rule. If they are 
to be included, then applications received as a result of the notice may 
be treated as having been in response to that previously published 
program rule. If they are not to be included, then applications received 
in response to the notice are to be treated as unsolicited applications. 
FOAs may be issued by a DOE Contracting Officer or program office with 
prior concurrence of the contracting office.
    (2) DOE must post synopses of its FOAs and modifications to the 
announcements at the Grants.gov Internet site, using the standard data 
elements/format, except for:
    (i) Announcements of funding opportunities for awards less than 
$25,000 for which 100 percent of eligible applicants live outside of the 
United States.
    (ii) Single source announcements of funding opportunities which are 
specifically directed to a known recipient.
    (b) Subawards. In accordance with the provisions of the applicable 
statute and program rules, if a DOE financial assistance program 
involves the award of financial assistance by a recipient to a 
subrecipient, the recipient shall provide sufficient advance notice so 
that potential subrecipients may prepare timely applications and secure 
prerequisite reviews and approvals.
    (c) Announcement format. DOE must use the government-wide standard 
format to publish program announcements of funding opportunities.

[61 FR 7166, Feb. 26, 1996, as amended at 69 FR 7867, Feb. 20, 2004; 70 
FR 69254, Nov. 15, 2005; 74 FR 44276, Aug. 28, 2009]

[[Page 89]]



Sec. 600.9  [Reserved]



Sec. 600.10  Form and content of applications.

    (a) General. Applications shall be required for all financial 
assistance projects or programs.
    (b) Forms. Applications shall be on the form specified in a program 
rule, the program announcement, or these regulations. (See also 
Sec. Sec. 600.112 and 600.210.) For unsolicited applications, a guide 
for preparation and submission is available from U.S. Department of 
Energy, Federal Energy Technology Center, Attn: Unsolicited Proposal 
Manager, Post Office Box 10940, Pittsburgh, PA, 15236-0940.
    (c) Contents of an application. In general, a financial assistance 
application shall include:
    (1) A facesheet containing basic identifying information. The 
facesheet shall be the Standard Form (SF)424;
    (2) A detailed narrative description of the proposed project, 
including the objectives of the project and the applicant's plan for 
carrying it out;
    (3) A budget with supporting justification; and
    (d) Incomplete applications. DOE may return an application that:
    (1) Is not signed, either in writing or electronically, by an 
official authorized to bind the applicant; or
    (2) Omits any information or documentation required by statute, 
program rule, or the solicitation, if the nature of the omission 
precludes review of the application.
    (e) Supplemental information. During the review of a complete 
application, DOE may request the submission of additional information 
only if the information is essential to evaluate the application.
    (f) Registration is required in the Central Contractor Registration 
(CCR) for all applications. Information on registration can be obtained 
at http://www.ccr.gov/Grantees.aspx.

[61 FR 7166, Feb. 26, 1996, as amended at 64 FR 56420, Oct. 20, 1999; 69 
FR 7867, Feb. 20, 2004; 74 FR 44276, Aug. 28, 2009]



Sec. Sec. 600.11-600.12  [Reserved]



Sec. 600.13  Merit review.

    (a) It is the policy of DOE that discretionary financial assistance 
be awarded through a merit-based selection process. A merit review means 
a thorough, consistent, and objective examination of applications based 
on pre-established criteria by persons who are independent of those 
submitting the applications and who are knowledgeable in the field of 
endeavor for which support is requested.
    (b) Each program office must establish a merit review system 
covering the financial assistance programs it administers. Merit review 
of financial assistance applications is intended to be advisory and is 
not intended to replace the authority of the project/program official 
with responsibility for deciding whether an award will be made.

[64 FR 56420, Oct. 20, 1999]



Sec. 600.14  [Reserved]



Sec. 600.15  Authorized uses of information.

    (a) General. Information contained in applications shall be used 
only for evaluation purposes unless such information is generally 
available to the public or is already the property of the Government. 
The Trade Secrets Act, 18 U.S.C. 1905, prohibits the unauthorized 
disclosure by Federal employees of trade secret and confidential 
business information.
    (b) Treatment of application information. (1) An application may 
include technical data and other data, including trade secrets and/or 
privileged or confidential commercial or financial information, which 
the applicant does not want disclosed to the public or used by the 
Government for any purpose other than application evaluation. To protect 
such data, the applicant should specifically identify each page 
including each line or paragraph thereof containing the data to be 
protected and mark the cover sheet of the application with the following 
Notice as well as referring to the Notice on each page to which the 
Notice applies:

[[Page 90]]

           Notice of Restriction on Disclosure and Use of Data

    The data contained in pages ------ of this application have been 
submitted in confidence and contain trade secrets or proprietary 
information, and such data shall be used or disclosed only for 
evaluation purposes, provided that if this applicant receives an award 
as a result of or in connection with the submission of this application, 
DOE shall have the right to use or disclose the data herein to the 
extent provided in the award. This restriction does not limit the 
Government's right to use or disclose data obtained without restriction 
from any source, including the applicant.

    (2) Unless a funding opportunity announcement specifies otherwise, 
DOE shall not refuse to consider an application solely on the basis that 
the application is restrictively marked.
    (3) Data (or abstracts of data) marked with the Notice under 
paragraph (b)(1) of this section shall be retained in confidence and 
used by DOE or its designated representatives as specified in Sec. 
600.13 solely for the purpose of evaluating the proposal. The data so 
marked shall not be disclosed or used for any other purpose except to 
the extent provided in any resulting award, or to the extent required by 
law, including the Freedom of Information Act (5 U.S.C. 552) (10 CFR 
part 1004). The Government shall not be liable for disclosure or use of 
unmarked data and may use or disclose such data for any purpose.

[61 FR 7166, Feb. 26, 1996, as amended at 68 FR 50650, Aug. 21, 2003; 74 
FR 44276, Aug. 28, 2009]



Sec. 600.16  Legal authority and effect of an award.

    (a) A DOE financial assistance award is valid only if it is in 
writing and is signed, either in writing or electronically, by a DOE 
Contracting Officer.
    (b) Recipients are free to accept or reject the award. A request to 
draw down DOE funds constitutes acceptance; however, DOE may require 
formal acceptance of an award.
    (c) DOE funds awarded under a grant, cooperative agreement, or 
technology investment agreement shall be obligated as of the date the 
DOE Contracting Officer signs the award; however, the recipient is not 
authorized to incur costs under an award prior to the beginning date of 
the budget period shown in the award except as may be authorized in 
accordance with Sec. Sec. 600.125(e), 600.230, 600.317(b), or 603.830 
of this part. The duration of the DOE financial obligation shall not 
extend beyond the expiration date of the budget period shown in the 
award unless authorized by a DOE Contracting Officer by means of a 
continuation or renewal award or other extension of the budget period.

[61 FR 7166, Feb. 26, 1996, as amended at 70 FR 69254, Nov. 15, 2005; 74 
FR 44276, Aug. 28, 2009]



Sec. 600.17  Contents of Award.

    Each financial assistance award shall be made on a Notice of 
Financial Assistance Award (NFAA) which contains basic identifying and 
funding information. The NFAA provides the contents of the award 
including any special terms and conditions, program regulations, the 
National Policy Assurances, and any other provisions necessary to 
establish the respective rights, duties, obligations, and 
responsibilities of DOE and the recipient, consistent with the 
requirements of this part.

[74 FR 44276, Aug. 28, 2009]



Sec. 600.18  [Reserved]



Sec. 600.19  Notification to unsuccessful applicants.

    DOE shall promptly notify in writing each applicant whose 
application has not been selected for award or whose application cannot 
be funded because of the unavailability of appropriated funds. If the 
application was not selected, the written notice shall explain why the 
application was not selected.

[61 FR 7166, Feb. 26, 1996, as amended at 74 FR 44276, Aug. 28, 2009]



Sec. 600.20  Maximum DOE obligation.

    (a) The maximum DOE obligation to the recipient is--
    (1) For monetary awards, the amount shown in the award as the amount 
of DOE funds obligated, and
    (2) Any designated property.
    (b) DOE shall not be obligated to make any additional, supplemental, 
continuation, renewal, or other award for the same or any other purpose.

[[Page 91]]



Sec. 600.21  Access to records.

    (a) In addition to recipient and subrecipient responsibilities 
relative to access to records specified in Sec. Sec. 600.153, 600.242 
and 600.342, for any negotiated contract or subcontract in excess of 
$10,000 under a grant or cooperative agreement, DOE, the Comptroller 
General of the United States, the recipient and the subrecipient (if the 
contract was awarded under a financial assistance subaward), or any of 
their authorized representatives shall have the right of access to any 
books, documents, papers, or other records of the contractor or 
subcontractor which are pertinent to that contract or subcontract, in 
order to make audit, examination, excerpts, and copies.
    (b) The right of access may be exercised for as long as the 
applicable records are retained by the recipient, subrecipient, 
contractor, or subcontractor.

[61 FR 7166, Feb. 26, 1996, as amended at 74 FR 44276, Aug. 28, 2009]



Sec. 600.22  Disputes and appeals.

    (a) Informal dispute resolution. Whenever practicable, DOE shall 
attempt to resolve informally any dispute over the award or 
administration of financial assistance. Informal resolution, including 
resolution through an alternative dispute resolution mechanism, shall be 
preferred over formal procedures, to the extent practicable.
    (b) Alternative dispute resolution (ADR). Before issuing a final 
determination in any dispute in which informal resolution has not been 
achieved, the Contracting Officer shall suggest that the other party 
consider the use of voluntary consensual methods of dispute resolution, 
such as mediation. The DOE dispute resolution specialist is available to 
provide assistance for such disputes, as are trained mediators of other 
federal agencies. ADR may be used at any stage of a dispute.
    (c) Final determination. Whenever a dispute is not resolved 
informally or through an alternative dispute resolution process, DOE 
shall mail (by certified mail) a brief written determination signed by a 
Contracting Officer, setting forth DOE's final disposition of such 
dispute. Such determination shall contain the following information:
    (1) A summary of the dispute, including a statement of the issues 
and of the positions taken by the Department and the party or parties to 
the dispute; and
    (2) The factual, legal and, if appropriate, policy reasons for DOE's 
disposition of the dispute.
    (d) Right of appeal. Except as provided in paragraph (f)(1) of this 
section, the final determination under paragraph (c) of this section may 
be appealed to the cognizant Senior Procurement Executive (SPE) for 
either DOE or the National Nuclear Security Administration (NNSA). The 
mailing address for the DOE SPE is Office of Procurement and Assistance 
Management, 1000 Independence Ave., SW, Washington, DC 20585. The 
mailing address for the NNSA SPE is Office of Acquisition and Supply 
Management, 1000 Independence Ave., SW., Washington, DC 20585.
    (e) Effect of appeal. The filing of an appeal with the SPE shall not 
stay any determination or action taken by DOE which is the subject of 
the appeal. Consistent with its obligation to protect the interests of 
the Federal Government, DOE may take such authorized actions as may be 
necessary to preserve the status quo pending decision by the SPE, or to 
preserve its ability to provide relief in the event the SPE decides in 
favor of the appellant.
    (f) Review on appeal. (1) The SPE shall have no jurisdiction to 
review
    (i) Any preaward dispute (except as provided in paragraph (f)(2)(ii) 
of this section), including use of any special restrictive condition 
pursuant to Sec. 600.114, Sec. 600.212, or Sec. 600.304;
    (ii) DOE denial of a request for a deviation under Sec. 600.4, 
Sec. 600.103, Sec. 600.205, or Sec. 600.303 of this part;
    (iii) DOE denial of a request for a budget revision or other change 
in the approved project under Sec. 600.125, Sec. 600.127, Sec. 
600.222, Sec. 600.230, Sec. 600.315, or Sec. 600.317 of this part or 
under another term or condition of the award;
    (iv) Any DOE action authorized under Sec. 600.162(a)(1), (2), (3) 
or (5), Sec. 600.243(a)(1), (a)(3), or Sec. 600.352(a)(1), (2), (3) or 
(5) for suspensions only; or Sec. 600.162(a)(4), Sec. 600.243(a)(4) or 
Sec. 600.352(a)(4) for actions disapproving renewal applications or 
other requests

[[Page 92]]

for extension of time or additional funding for the same project when 
related to recipient noncompliance, or such actions authorized by 
program rule;
    (v) Any DOE decision about an action requiring prior DOE approval 
under Sec. 600.144, Sec. 600.236, or Sec. 600.331 of this part or 
under another term or condition of the award;
    (2) In addition to any right of appeal established by program rule, 
or by the terms and conditions (not inconsistent with paragraph (f)(1) 
of this section) of an award, the Board shall have jurisdiction to 
review:
    (i) A DOE determination that the recipient has failed to comply with 
the applicable requirements of this part, the program statute or rules, 
or other terms and conditions of the award;
    (ii) A DOE decision not to make a continuation award based on any of 
the determinations described in paragraph (f)(2)(i) of this section;
    (iii) Termination of an award for cause, in whole or in part, by 
DOE;
    (iv) A DOE determination that an award is void or invalid;
    (v) The application by DOE of an indirect cost rate; and
    (vi) DOE disallowance of costs.
    (3) In reviewing disputes authorized under paragraph (f)(2) of this 
section, the Board shall be bound by the applicable law, statutes, and 
rules, including the requirements of this part, and by the terms and 
conditions of the award.
    (4) The decision of the Board shall be the final decision of the 
Department.

[61 FR 7166, Feb. 26, 1996, as amended at 74 FR 44276, Aug. 28, 2009]



Sec. 600.23  [Reserved]



Sec. 600.24  Noncompliance.

    (a) Except for noncompliance with nondiscrimination requirements 
under 10 CFR part 1040, whenever DOE determines that a recipient has not 
complied with the applicable requirements of this part, with the 
requirements of any applicable program statute or rule, or with any 
other term or condition of the award, a DOE Contracting Officer shall 
provide to the recipient (by certified mail, return receipt requested) a 
written notice setting forth:
    (1) The factual and legal bases for the determination of 
noncompliance;
    (2) The corrective actions and the date (not less than 30 days after 
the date of the notice) by which they must be taken.
    (3) Which of the actions authorized under Sec. 600.122(n), Sec. 
600.162(a) Sec. 600.243(a), Sec. 600.312(g), or Sec. 600.352(a) of 
this part DOE may take if the recipient does not achieve compliance 
within the time specified in the notice, or does not provide 
satisfactory assurances that actions have been initiated which will 
achieve compliance in a timely manner.
    (b) DOE may take any of the actions set forth in Sec. 600.122(n), 
Sec. 600.162(a), Sec. Sec. 600.243(a), 600.312(g), or 600.352(a) of 
this part concurrent with the written notice required under paragraph 
(a) of this section or with less than 30 days written notice to the 
recipient whenever:
    (1) There is evidence the award was obtained by fraud;
    (2) The recipient ceases to exist or becomes legally incapable of 
performing its responsibilities under the financial assistance award; or
    (3) There is a serious mismanagement or misuse of financial 
assistance award funds necessitating immediate action.

[61 FR 7166, Feb. 26, 1996, as amended at 64 FR 56420, Oct. 20, 1999; 74 
FR 44277, Aug. 28, 2009]



Sec. 600.25  Suspension and termination.

    (a) Suspension and termination for cause. DOE may suspend or 
terminate an award for cause on the basis of:
    (1) A noncompliance determination under Sec. 600.24, Sec. 
600.122(n), Sec. 600.162(a), Sec. 600.243(a) or Sec. 600.352(a); or
    (2) A suspension or debarment of the awardee under 2 CFR 180 and 
901.
    (b) Notification requirements. Except as provided in Sec. 600.24, 
Sec. 600.162(a), Sec. 600.243(a), or Sec. 600.352(a) before 
suspending or terminating an award for cause, DOE shall mail to the 
awardee (by certified mail, return receipt requested) a separate written 
notice in addition to that required by Sec. 600.24(a) at least ten days 
prior to the effective date of the suspension or termination. Such 
notice shall include, as appropriate:

[[Page 93]]

    (1) The factual and legal bases for the suspension or termination;
    (2) The effective date or dates of the DOE action;
    (3) If the action does not apply to the entire award, a description 
of the activities affected by the action;
    (4) Instructions concerning which costs shall be allowable during 
the period of suspension, or instructions concerning allowable 
termination costs, including in either case, instructions concerning any 
subgrants or contracts;
    (5) Instructions concerning required final reports and other 
closeout actions for terminated awards (see Sec. Sec. 600.170 through 
600.173, Sec. Sec. 600.250 through 600.252 and Sec. Sec. 600.350 
through 600.353;
    (6) A statement of the awardee's right to appeal a termination for 
cause pursuant to Sec. 600.22; and
    (7) The dated signature of a DOE Contracting Officer.
    (c) Suspension. (1) Unless DOE and the awardee agree otherwise, no 
period of suspension shall exceed 90 days.
    (2) DOE may cancel the suspension at any time, up to and including 
the date of expiration of the period of suspension, if the awardee takes 
satisfactory corrective action before the expiration date of the 
suspension or gives DOE satisfactory evidence that such corrective 
action will be taken.
    (3) If the suspension has not been cancelled by the expiration date 
of the period of suspension, the awardee shall resume the suspended 
activities or project unless, prior to the expiration date, DOE notifies 
the awardee in writing that the period of suspension shall be extended 
consistent with paragraph (c)(1) of this section or that the award shall 
be terminated.
    (4) As of the effective date of the suspension, DOE shall withhold 
further payments and shall allow new obligations incurred by the awardee 
during the period of suspension only if such costs were authorized in 
the notice of suspension or in a subsequent letter.
    (5) If the suspension is cancelled or expires and the award is not 
terminated, DOE shall reimburse the awardee for any authorized allowable 
costs incurred during the suspension and, if necessary, may amend the 
award to extend the period of performance.
    (d) Termination by mutual agreement. In addition to any situation 
where a termination for cause pursuant to Sec. Sec. 600.24, 600.160 
through 600.162 Sec. Sec. 600.243 through 600.244 or Sec. Sec. 600.350 
through 600.353 is appropriate, either DOE or the awardee may initiate a 
termination of an award (or portion thereof) as described in this 
paragraph. If the awardee initiates a termination, the awardee must 
notify DOE in writing and specify the awardee's reasons for requesting 
the termination, the proposed effective date of the termination, and, in 
the case of a partial termination, a description of the activities to be 
terminated, and an appropriate budget revision. DOE shall terminate an 
award or portion thereof under this paragraph only if both parties agree 
to the termination and the conditions under which it shall occur. If DOE 
determines that the remaining activities under a partially terminated 
award would not accomplish the purpose for which the award was 
originally awarded, DOE may terminate the entire award.
    (e) Effect of termination. The awardee shall incur no new 
obligations after the effective date of the termination of an award (or 
portion thereof), and shall cancel as many outstanding obligations as 
possible. DOE shall allow full credit to the awardee for the DOE share 
of noncancellable obligations properly incurred by the awardee prior to 
the effective date of the termination.
    (f) Subgrants. Awardees shall follow the policies and procedures in 
this section and in Sec. Sec. 600.24, 600.160 through 600.162 
Sec. Sec. 600.243 through 600.244 or Sec. Sec. 600.350 through 600.353 
for suspending and terminating subgrants.

[61 FR 7166, Feb. 26, 1996, as amended at 74 FR 44277, Aug. 28, 2009]



Sec. Sec. 600.26-600.28  [Reserved]



Sec. 600.29  Fixed obligation awards.

    (a) General. This section contains provisions applicable to the 
award of financial assistance instruments on a fixed amount basis. Under 
a fixed obligation award, funds are issued in support of a project 
without a requirement for Federal monitoring of actual costs 
subsequently incurred.

[[Page 94]]

    (b) Provisions applicable to fixed obligation awards. Financial 
assistance awards may be made on a fixed obligation basis subject to the 
following requirements:
    (1) Each fixed obligation award may neither exceed $250,000 nor 
exceed one year in length.
    (2) Programs which require mandatory cost sharing are not eligible.
    (3) Proposed costs must be analyzed in detail to ensure consistency 
with applicable cost principles.
    (4) Budget categories are not stipulated in making an award. 
However, budgets are submitted by an applicant and reviewed for purposes 
of establishing the amount to be awarded.
    (5) Payments must be made in the same manner as other financial 
assistance awards, except that when determined appropriate by the 
cognizant program official and Contracting Officer a lump sum payment 
may be made.
    (6) Recipients must certify in writing to the Contracting Officer at 
the end of the project that the activity was completed or the level of 
effort was expended, however should the activity or effort not be 
carried out, the recipient would be expected to make appropriate 
reimbursements.
    (7) Periodic reports may be established for each award so long as 
they are not more frequently than quarterly.
    (8) Changes in principal investigator or project leader, scope of 
effort, or institution, must receive the prior approval of the 
Department.

[61 FR 7166, Feb. 26, 1996, as amended at 74 FR 44277, Aug. 28, 2009]



Sec. 600.30  Cost sharing.

    In addition to the requirements of Sec. 600.123, Sec. 600.224, or 
Sec. 600.313, the following requirements apply to research, 
development, demonstration and commercial application activities 
projects:
    (a) Cost sharing is required for most financial assistance awards 
for research, development, demonstration and commercial applications 
activities initiated after the enactment of the Energy Policy Act of 
2005 on August 8, 2005. This requirement does not apply to:
    (1) An award under the small business innovation research program or 
the small business technology transfer program; or
    (2) A program with cost sharing requirements defined by other than 
Section 988 of the Energy Policy Act of 2005 including other sections of 
the 2005 Act and the Energy Policy Act of 1992.
    (b) A cost share of at least 20 percent of the cost of the activity 
is required for research and development except where:
    (1) A research or development activity of a basic or fundamental 
nature has been excluded by an appropriate officer of the Department, 
generally an Under Secretary; or
    (2) The Secretary has determined it is necessary and appropriate to 
reduce or eliminate the cost sharing requirement for a research and 
development activity of an applied nature.
    (c) A cost share of at least 50 percent of the cost of a 
demonstration or commercial application program or activity is required 
unless the Secretary has determined it is necessary and appropriate to 
reduce the cost sharing requirements, taking into consideration any 
technological risk relating to the activity.
    (d) Cost share shall be provided by non-Federal funds unless 
otherwise authorized by statute. In calculating the amount of the non-
Federal contribution:
    (1) Base the non-Federal contribution on total project costs, 
including the cost of work where funds are provided directly to a 
partner, consortium member or subrecipient, such as a Federally Funded 
Research and Development Center;
    (2) Include the following costs as allowable in accordance with the 
applicable cost principles:
    (i) Cash;
    (ii) Personnel costs;
    (iii) The value of a service, other resource, or third party in-kind 
contribution determined in accordance with the applicable circular of 
the Office of Management and Budget;
    (iv) Indirect costs or facilities and administrative costs; and/or
    (v) Any funds received under the power program of the Tennessee 
Valley Authority (except to the extent that such funds are made 
available under an annual appropriation Act);

[[Page 95]]

    (3) Exclude the following costs:
    (i) Revenues or royalties from the prospective operation of an 
activity beyond the time considered in the award;
    (ii) Proceeds from the prospective sale of an asset of an activity; 
or
    (iii) Other appropriated Federal funds.
    (iv) Repayment of the Federal share of a cost-shared activity under 
Section 988 of the Energy Policy Act of 2005 shall not be a condition of 
the award.

[74 FR 44277, Aug. 28, 2009]



Sec. 600.31  Research misconduct.

    (a) A recipient is responsible for maintaining the integrity of 
research of any kind under an award from DOE including the prevention, 
detection, and remediation of research misconduct, and the conduct of 
inquiries, investigations, and adjudication of allegations of research 
misconduct in accordance with the requirements of this section.
    (b) For purposes of this section, the following definitions are 
applicable:
    Adjudication means a formal review of a record of investigation of 
alleged research misconduct to determine whether and what corrective 
actions and sanctions should be taken.
    Fabrication means making up data or results and recording or 
reporting them.
    Falsification means manipulating research materials, equipment, or 
processes, or changing or omitting data or results such that the 
research is not accurately represented in the research record.
    Finding of Research Misconduct means a determination, based on a 
preponderance of the evidence, that research misconduct has occurred. 
Such a finding requires a conclusion that there has been a significant 
departure from accepted practices of the relevant research community and 
that it be knowingly, intentionally, or recklessly committed.
    Inquiry means information gathering and initial fact-finding to 
determine whether an allegation or apparent instance of misconduct 
warrants an investigation.
    Investigation means the formal examination and evaluation of the 
relevant facts.
    Plagiarism means the appropriation of another person's ideas, 
processes, results, or words without giving appropriate credit.
    Research means all basic, applied, and demonstration research in all 
fields of science, medicine, engineering, and mathematics, including, 
but not limited to, research in economics, education, linguistics, 
medicine, psychology, social sciences statistics, and research involving 
human subjects or animals.
    Research misconduct means fabrication, falsification, or plagiarism 
in proposing, performing, or reviewing research, or in reporting 
research results, but does not include honest error or differences of 
opinion.
    Research record means the record of all data or results that embody 
the facts resulting from scientists' inquiries, including, but not 
limited to, research proposals, laboratory records, both physical and 
electronic, progress reports, abstracts, theses, oral presentations, 
internal reports, and journal articles.
    (c) Unless otherwise instructed by the Contracting Officer, the 
recipient must conduct an initial inquiry into any allegation of 
research misconduct. If the recipient determines that there is 
sufficient evidence to proceed to an investigation, it must notify the 
Contracting Officer and, unless otherwise instructed, the recipient 
must:
    (1) Conduct an investigation to develop a complete factual record 
and an examination of such record leading to either a finding of 
research misconduct and an identification of appropriate remedies or a 
determination that no further action is warranted;
    (2) Inform the Contracting Officer if an initial inquiry supports an 
investigation and, if requested by the Contracting Officer thereafter, 
keep the Contracting Officer informed of the results of the 
investigation and any subsequent adjudication. When an investigation is 
complete, the recipient will forward to the Contracting Officer a copy 
of the evidentiary record, the investigative report, any recommendations 
made to the recipient's adjudicating official, and the adjudicating 
official's decision and notification of any corrective action taken or 
planned, and

[[Page 96]]

the subject's written response to the recommendations (if any).
    (3) If the investigation leads to a finding of research misconduct, 
conduct an adjudication by a responsible official who was not involved 
in the inquiry or investigation and is separated organizationally from 
the element which conducted the investigation. The adjudication must 
include a review of the investigative record and, as warranted, a 
determination of appropriate corrective actions and sanctions.
    (d) The Department may elect to act in lieu of the recipient in 
conducting an inquiry or investigation into an allegation of research 
misconduct if the Contracting Officer finds that:
    (1) The research organization is not prepared to handle the 
allegation in a manner consistent with this section;
    (2) The allegation involves an entity of sufficiently small size 
that it cannot reasonably conduct the inquiry;
    (3) DOE involvement is necessary to ensure the public health, 
safety, and security, or to prevent harm to the public interest; or,
    (4) The allegation involves possible criminal misconduct.
    (e) DOE reserves the right to pursue such remedies and other actions 
as it deems appropriate, consistent with the terms and conditions of the 
award instrument and applicable laws and regulations. However, the 
recipient's good faith administration of this section and the 
effectiveness of its remedial actions and sanctions shall be positive 
considerations and shall be taken into account as mitigating factors in 
assessing the need for such actions. If DOE pursues any such action, it 
will inform the subject of the action of the outcome and any applicable 
appeal procedures.
    (f) In conducting the activities in paragraph (c) of this section, 
the recipient and the Department, if it elects to conduct the inquiry or 
investigation, shall adhere to the following guidelines:
    (1) Safeguards for information and subjects of allegations. The 
recipient shall provide safeguards to ensure that individuals may bring 
allegations of research misconduct made in good faith to the attention 
of the recipient without suffering retribution. Safeguards include: 
protection against retaliation; fair and objective procedures for 
examining and resolving allegations; and diligence in protecting 
positions and reputations. The recipient shall also provide the subjects 
of allegations confidence that their rights are protected and that the 
mere filing of an allegation of research misconduct will not result in 
an adverse action. Safeguards include timely written notice regarding 
substantive allegations against them, a description of the allegation 
and reasonable access to any evidence submitted to support the 
allegation or developed in response to an allegation and notice of any 
findings of research misconduct.
    (2) Objectivity and expertise. The recipient shall select 
individual(s) to inquire, investigate, and adjudicate allegations of 
research misconduct who have appropriate expertise and have no 
unresolved conflict of interest. The individual(s) who conducts an 
adjudication must not be the same individual(s) who conducted the 
inquiry or investigation, and must be separate organizationally from the 
element that conducted the inquiry or investigation.
    (3) Timeliness. The recipient shall coordinate, inquire, investigate 
and adjudicate allegations of research misconduct promptly, but 
thoroughly. Generally, an investigation should be completed within 120 
days of initiation, and adjudication should be complete within 60 days 
of receipt of the record of investigation.
    (4) Confidentiality. To the extent possible, consistent with fair 
and thorough processing of allegations of research misconduct and 
applicable law and regulation, knowledge about the identity of the 
subjects of allegations and informants should be limited to those with a 
need to know.
    (5) Remediation and sanction. If the recipient finds that research 
misconduct has occurred, it shall assess the seriousness of the 
misconduct and its impact on the research completed or in process. The 
recipient must take all necessary corrective actions. Such action may 
include but are not limited to, correcting the research record and as 
appropriate imposing restrictions, controls, or other parameters on 
research in process or to be conducted in

[[Page 97]]

the future. The recipient must coordinate remedial actions with the 
Contracting Officer. The recipient must also consider whether personnel 
sanctions are appropriate. Any such sanction must be consistent with any 
applicable personnel laws, policies, and procedures, and must take into 
account the seriousness of the misconduct and its impact, whether it was 
done knowingly or intentionally, and whether it was an isolated event or 
pattern of conduct.
    (g) By executing this agreement, the recipient provides its 
assurance that it has established an administrative process for 
performing an inquiry, mediating if possible, investigating, and 
reporting allegations of research misconduct; and that it will comply 
with its own administrative process and the requirements and definitions 
of 10 CFR part 733 for performing an inquiry, possible mediation, 
investigation and reporting of allegations of research misconduct.
    (h) The recipient must insert or have inserted the substance of this 
section, including paragraph (g), in subawards at all tiers that involve 
research.

[70 FR 37013, June 28, 2005, as amended at 74 FR 44278, Aug. 28, 2009]



Subpart B_Uniform Administrative Requirements for Grants and Cooperative 
 Agreements With Institutions of Higher Education, Hospitals, and Other 
                         Nonprofit Organizations

    Source: 59 FR 53266, Oct. 21, 1994, unless otherwise noted.

                                 General



Sec. 600.100  Purpose.

    This subpart implements OMB Circular A-110 and establishes uniform 
administrative requirements for grants and agreements awarded to 
institutions of higher education, hospitals, and other non-profit 
organizations. It also establishes rules governing subawards to 
institutions of higher education, hospitals, and non-profit 
organizations (including grants and cooperative agreements administered 
by State, local and Indian Tribal governments).

[59 FR 53266, Oct. 21, 1994, as amended at 68 FR 50650, Aug. 21, 2003]



Sec. 600.101  Definitions.

    Accrued expenditures means the charges incurred by the recipient 
during a given period requiring the provision of funds for:
    (1) Goods and other tangible property received;
    (2) Services performed by employees, contractors, subrecipients, and 
other payees; and,
    (3) Other amounts becoming owed under programs for which no current 
services or performance is required.
    Accrued income means the sum of:
    (1) Earnings during a given period from services performed by the 
recipient, and goods and other tangible property delivered to 
purchasers, and
    (2) Amounts becoming owed to the recipient for which no current 
services or performance is required by the recipient.
    Acquisition cost of equipment means the net invoice price of the 
equipment, including the cost of modifications, attachments, 
accessories, or auxiliary apparatus necessary to make the property 
usable for the purpose for which it was acquired. Other charges, such as 
the cost of installation, transportation, taxes, duty or protective in-
transit insurance, shall be included or excluded from the unit 
acquisition cost in accordance with the recipient's regular accounting 
practices.
    Advance means a payment made by Treasury check or other appropriate 
payment mechanism to a recipient upon its request either before outlays 
are made by the recipient or through the use of predetermined payment 
schedules.
    Award means financial assistance that provides support or 
stimulation to accomplish a public purpose. Awards include grants and 
other agreements in the form of money or property in lieu of money, by 
DOE to an eligible recipient. The term does not include: technical 
assistance, which provides services instead of money; other assistance 
in the form of loans, loan guarantees, interest subsidies, or insurance; 
direct payments of any kind to individuals;

[[Page 98]]

and, contracts which are required to be entered into and administered 
under procurement laws and regulations.
    Cash contributions means the recipient's cash outlay, including the 
outlay of money contributed to the recipient by third parties.
    Closeout means the process by which DOE determines that all 
applicable administrative actions and all required work of the award 
have been completed by the recipient and DOE.
    Contract means a procurement contract under an award or subaward, 
and a procurement subcontract under a recipient's or subrecipient's 
contract.
    Cost sharing or matching means that portion of project or program 
costs not borne by DOE.
    Date of completion means the date on which all work under an award 
is completed or the date on the award document, or any supplement or 
amendment thereto, on which DOE sponsorship ends.
    Disallowed costs means those charges to an award that the DOE 
determines to be unallowable, in accordance with the applicable Federal 
cost principles or other terms and conditions contained in the award.
    Equipment means tangible nonexpendable personal property including 
exempt property charged directly to the award having a useful life of 
more than one year and an acquisition cost of $5000 or more per unit. 
However, consistent with recipient policy, lower limits may be 
established.
    Excess property means property under the control of any Federal 
awarding agency that, as determined by the head thereof, is no longer 
required for its needs or the discharge of its responsibilities.
    Exempt property means tangible personal property acquired in whole 
or in part with Federal funds, where the Federal awarding agency has 
statutory authority to vest title in the recipient without further 
obligation to the Federal Government. An example of exempt property 
authority is contained in the Federal Grant and Cooperative Agreement 
Act (31 U.S.C. 6306), for property acquired under an award to conduct 
basic or applied research by a non-profit institution of higher 
education or non-profit organization whose principal purpose is 
conducting scientific research.
    Federal awarding agency means the Federal agency that provides an 
award to the recipient.
    Federal funds authorized means the total amount of Federal funds 
obligated by the Federal Government for use by the recipient. This 
amount may include any authorized carryover of unobligated funds from 
prior funding periods when permitted by agency regulations or agency 
implementing instructions.
    Federal share of real property, equipment, or supplies means that 
percentage of the property's acquisition costs and any improvement 
expenditures paid with Federal funds.
    Funding period or budget period means the period of time when DOE 
funding is available for obligation by the recipient.
    Intangible property and debt instruments means, but is not limited 
to, trademarks, copyrights, patents and patent applications and such 
property as loans, notes and other debt instruments, lease agreements, 
stock and other instruments of property ownership, whether considered 
tangible or intangible.
    Obligations means the amounts of orders placed, contracts and grants 
awarded, services received and similar transactions during a given 
period that require payment by the recipient during the same or a future 
period.
    Outlays or expenditures means charges made to the project or 
program. They may be reported on a cash or accrual basis. For reports 
prepared on a cash basis, outlays are the sum of cash disbursements for 
direct charges for goods and services, the amount of indirect expense 
charged, the value of third party in-kind contributions applied and the 
amount of cash advances and payments made to subrecipients. For reports 
prepared on an accrual basis, outlays are the sum of cash disbursements 
for direct charges for goods and services, the amount of indirect 
expense incurred, the value of in-kind contributions applied, and the 
net increase (or decrease) in the amounts owed by the recipient for 
goods and other property received, for services performed by employees, 
contractors, subrecipients and

[[Page 99]]

other payees and other amounts becoming owed under programs for which no 
current services or performance are required.
    Personal property means property of any kind except real property. 
It may be tangible, having physical existence, or intangible, having no 
physical existence, such as copyrights, patents, or securities.
    Prior approval means written approval by a contracting officer 
evidencing prior consent.
    Program income means gross income earned by the recipient that is 
directly generated by a supported activity or earned as a result of the 
award (see exclusions in Sec. Sec. 600.124 (e) and (h)). Program income 
includes, but is not limited to, income from fees for services 
performed, the use or rental of real or personal property acquired under 
federally-funded projects, the sale of commodities or items fabricated 
under an award, license fees and royalties on patents and copyrights, 
and interest on loans made with award funds. Interest earned on advances 
of DOE funds is not program income. Except as otherwise provided in this 
subpart, program regulations, or the terms and conditions of the award, 
program income does not include the receipt of principal on loans, 
rebates, credits, discounts, etc., or interest earned on any of them.
    Project costs means all allowable costs, as set forth in the 
applicable Federal cost principles, incurred by a recipient and the 
value of the contributions made by third parties in accomplishing the 
objectives of the award during the project period.
    Project period means the period established in the award document 
during which DOE sponsorship begins and ends.
    Property means, unless otherwise stated, real property, equipment, 
intangible property and debt instruments.
    Real property means land, including land improvements, structures 
and appurtenances thereto, but excludes movable machinery and equipment.
    Recipient means an organization receiving financial assistance 
directly from DOE to carry out a project or program. The term includes 
public and private institutions of higher education, public and private 
hospitals, and other quasi-public and private non-profit organizations 
such as, but not limited to, community action agencies, research 
institutes, educational associations, and health centers. The term shall 
include commercial organizations which are recipients, subrecipients, or 
contractors or subcontractors of recipients or subrecipients. The term 
does not include government-owned contractor-operated facilities or 
research centers providing continued support for mission-oriented, 
large-scale programs that are government-owned or controlled, or are 
designated as federally-funded research and development centers.
    Research and development means all research activities, both basic 
and applied, and all development activities that are supported at 
universities, colleges, and other non-profit institutions. ``Research'' 
is defined as a systematic study directed toward fuller scientific 
knowledge or understanding of the subject studied. ``Development'' is 
the systematic use of knowledge and understanding gained from research 
directed toward the production of useful materials, devices, systems, or 
methods, including design and development of prototypes and processes. 
The term research also includes activities involving the training of 
individuals in research techniques where such activities utilize the 
same facilities as other research and development activities and where 
such activities are not included in the instruction function.
    Small award means a grant or cooperative agreement not exceeding the 
small purchase threshold fixed at 41 U.S.C. 403(11) (currently $25,000).
    Subaward means an award of financial assistance in the form of 
money, or property in lieu of money, made under an award by a recipient 
to an eligible subrecipient or by a subrecipient to a lower tier 
subrecipient. The term includes financial assistance when provided by 
any legal agreement, even if the agreement is called a contract, but 
does not include procurement of goods and services nor does it include 
any form of assistance which is excluded from the definition of 
``award'' above.
    Subrecipient means the legal entity to which a subaward is made and 
which is

[[Page 100]]

accountable to the recipient for the use of the funds provided. The term 
may include foreign or international organizations (such as agencies of 
the United Nations).
    Supplies means all personal property excluding equipment, intangible 
property, and debt instruments as defined in this section, and 
inventions of a contractor conceived or first actually reduced to 
practice in the performance of work under a funding agreement (``subject 
inventions''), as defined in 37 CFR part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts, and Cooperative Agreements.''
    Suspension means an action by DOE that temporarily withdraws DOE 
sponsorship under an award, pending corrective action by the recipient 
or pending a decision to terminate the award by the DOE. Suspension of 
an award is a separate action from suspension under DOE regulations 
implementing E.O.'s 12549 and 12689, ``Debarment and Suspension'' (see 
10 CFR part 1036).
    Termination means the cancellation of DOE sponsorship, in whole or 
in part, under an agreement at any time prior to the date of completion.
    Third party in-kind contributions means the value of non-cash 
contributions provided by non-Federal third parties. Third party in-kind 
contributions may be in the form of real property, equipment, supplies 
and other expendable property, and the value of goods and services 
directly benefiting and specifically identifiable to the project or 
program.
    Unliquidated obligations, for financial reports prepared on a cash 
basis, means the amount of obligations incurred by the recipient that 
have not been paid. For reports prepared on an accrued expenditure 
basis, they represent the amount of obligations incurred by the 
recipient for which an outlay has not been recorded.
    Unobligated balance means the portion of the funds authorized by DOE 
that has not been obligated by the recipient and is determined by 
deducting the cumulative obligations from the cumulative funds 
authorized.
    Unrecovered indirect cost means the difference between the amount 
awarded and the amount which could have been awarded under the 
recipient's approved negotiated indirect cost rate.
    Working capital advance means a procedure whereby funds are advanced 
to the recipient to cover its estimated disbursement needs for a given 
initial period.



Sec. 600.102  Effect on other issuances.

    For awards subject to this subpart, all administrative requirements 
of codified program regulations, program manuals, handbooks and other 
nonregulatory materials which are inconsistent with the requirements of 
this subpart shall be superseded, except to the extent they are required 
by statute, or authorized in accordance with the deviations provision in 
Sec. 600.4.



Sec. 600.103  Deviations.

    The deviation provisions of Sec. 600.4 apply to this subpart.



Sec. 600.104  Subawards.

    Unless sections of this subpart specifically exclude subrecipients 
from coverage, all DOE recipients, including State, local and Indian 
tribal governments, shall apply the provisions of this subpart to 
subrecipients performing work under awards if such subrecipients are 
institutions of higher education, hospitals, or other non-profit 
organizations organizations. Thus, this subpart is applicable to those 
types of organizations regardless of the type of recipient receiving the 
primary award. State and local government subrecipients are subject to 
the provisions of 10 CFR part 600, subpart C, ``Uniform Administrative 
Requirements for Grants and Cooperative Agreements to State and Local 
Governments.'' For-profit subrecipients are subject to the provisions of 
10 CFR part 600, subpart D, Administrative Requirements for Grants and 
Cooperative Agreements with For-Profit Organizations.

[59 FR 53266, Oct. 21, 1994, as amended at 68 FR 50650, Aug. 21, 2003]

                         Pre-Award Requirements



Sec. 600.110  Purpose.

    Sections 600.111 through 600.117 prescribe forms and instructions 
and other

[[Page 101]]

pre-award matters to be used in applying for DOE awards.



Sec. 600.111  Pre-award policies.

    (a) Use of Grants and Cooperative Agreements, and Contracts. In each 
instance, the DOE shall decide on the appropriate award instrument 
(i.e., grant, cooperative agreement, or contract). The Federal Grant and 
Cooperative Agreement Act (31 U.S.C. 6301-08) governs the use of grants, 
cooperative agreements and contracts. A grant or cooperative agreement 
shall be used only when the principal purpose of a transaction is to 
accomplish a public purpose of support or stimulation authorized by 
Federal statute. The statutory criterion for choosing between grants and 
cooperative agreements is that for the latter, ``substantial involvement 
is expected between the executive agency and the State, local 
government, or other recipient when carrying out the activity 
contemplated in the agreement.'' Contracts shall be used when the 
principal purpose is acquisition of property or services for the direct 
benefit or use of the Federal Government.
    (b) Public Notice and Priority Setting. DOE will, whenever 
practical, notify the public of its intended funding priorities for 
discretionary grant programs, unless funding priorities are established 
by Federal statute.



Sec. 600.112  Forms for applying for Federal assistance.

    (a) General. An application for an award shall be on the form or in 
the format specified in a program rule or in the funding opportunity 
announcement. When a version of the Standard Form 424 is not used, DOE 
shall indicate whether the application is subject to review by the State 
under Executive Order 12372.
    (b) Budgetary information. DOE may request and the applicant shall 
submit the minimum budgetary information necessary to evaluate the costs 
of the proposed project.
    (c) DOE may, subsequent to receipt of an application, request 
additional information from an applicant when necessary for 
clarification or to make informed preaward determinations.
    (d) Continuation and renewal applications. DOE may require that an 
application for a continuation or renewal award be made in the format or 
on the forms authorized by paragraphs (a) and (b) of this section.

[74 FR 44278, Aug. 28, 2009]



Sec. 600.113  Debarment and suspension.

    Recipients shall comply with the nonprocurement debarment and 
suspension common rule implementing E.O.'s 12549 and 12689, ``Debarment 
and Suspension,'' 2 CFR 180 and 901. This common rule restricts 
subawards and contracts with certain parties that are debarred, 
suspended or otherwise excluded from or ineligible for participation in 
Federal assistance programs or activities.

[59 FR 53266, Oct. 21, 1994, as amended at 74 FR 44278, Aug. 28, 2009]



Sec. 600.114  Special award conditions.

    (a) If an applicant or recipient has a history of poor performance, 
is not financially stable, has a management system that does not meet 
the standards prescribed in this subpart, has not conformed to the terms 
and conditions of a previous award, or is not otherwise responsible, DOE 
may impose additional requirements as needed, without regard to the 
deviation provisions of Sec. 600.4. Such applicant or recipient will be 
notified in writing as to the nature of the additional requirements, the 
reason why the additional requirements are being imposed, the nature of 
the corrective action needed, and the time allowed for completing the 
corrective actions. Reconsideration of the additional requirements may 
be requested at any time. Any special conditions shall be promptly 
removed once the conditions that prompted them have been corrected.
    (b) A recipient may place a special restrictive condition, as 
specified in paragraph (a) of this section, in a subaward. In any such 
case, the recipient must notify DOE in writing within 15 days of the 
subaward. DOE shall decide whether to notify OMB and other interested 
parties.

[[Page 102]]



Sec. 600.115  Metric system of measurement.

    The Metric Conversion Act, as amended by the Omnibus Trade and 
Competitiveness Act (15 U.S.C. 205) declares that the metric system is 
the preferred measurement system for U.S. trade and commerce. The Act 
requires each Federal agency to establish a date or dates in 
consultation with the Secretary of Commerce, when the metric system of 
measurement will be used in the agency's procurements, grants, and other 
business-related activities. Metric implementation may take longer where 
the use of the system is initially impractical or likely to cause 
significant inefficiencies in the accomplishment of federally-funded 
activities. DOE will follow the provisions of E.O. 12770, ``Metric Usage 
in Federal Government Programs.''



Sec. 600.116  Resource Conservation and Recovery Act.

    Under the Act (Pub. L. 94-580 codified at 42 U.S.C. 6962), any State 
agency or agency of a political subdivision of a State which is using 
appropriated Federal funds must comply with section 6002. Section 6002 
requires that preference be given in procurement programs to the 
purchase of specific products containing recycled materials identified 
in guidelines developed by the Environmental Protection Agency (EPA) (40 
CFR parts 247-254). Accordingly, State and local institutions of higher 
education, hospitals, and non-profit organizations that receive direct 
Federal awards or other Federal funds shall give preference in their 
procurement programs funded with Federal funds to the purchase of 
recycled products pursuant to the EPA guidelines.



Sec. 600.117  [Reserved]

                         Post-Award Requirements

                    Financial and Program Management



Sec. 600.120  Purpose of financial and program management.

    Sections 600.121 through 600.128 prescribe standards for financial 
management systems, methods for making payments and rules for satisfying 
cost sharing and matching requirements, accounting for program income, 
budget revision approvals, making audits, determining allowability of 
cost, and establishing fund availability.



Sec. 600.121  Standards for financial management systems.

    (a) Recipients shall relate financial data to performance data and 
develop unit cost information whenever practical. For awards that 
support research, it should be noted that it is generally not 
appropriate to develop unit cost information.
    (b) Except for the provisions of 600.121(f) and 600.181, recipients' 
financial management systems shall provide for the following:
    (1) Accurate, current and complete disclosure of the financial 
results of each federally-sponsored project or program in accordance 
with the reporting requirements set forth in Sec. 600.152. If a DOE 
award requires reporting on an accrual basis from a recipient that 
maintains its records on other than an accrual basis, the recipient 
shall not be required to establish an accrual accounting system. These 
recipients may develop such accrual data for their reports on the basis 
of an analysis of the documentation on hand.
    (2) Records that identify adequately the source and application of 
funds for federally-sponsored activities. These records shall contain 
information pertaining to Federal awards, authorizations, obligations, 
unobligated balances, assets, outlays, income and interest.
    (3) Effective control over and accountability for all funds, 
property and other assets. Recipients shall adequately safeguard all 
such assets and assure they are used solely for authorized purposes.
    (4) Comparison of outlays with budget amounts for each award. 
Whenever appropriate, financial information should be related to 
performance and unit cost data. As discussed in paragraph (a) of this 
section, unit cost data is generally not appropriate for awards that 
support research.
    (5) Written procedures to minimize the time elapsing between the 
transfer of funds to the recipient from the U.S. Treasury and the 
issuance or redemption of checks, warrants or payments by other means 
for program purposes

[[Page 103]]

by the recipient. To the extent that the provisions of the Cash 
Management Improvement Act (CMIA) (Pub. L. 101-453) govern, payment 
methods of State agencies, instrumentalities, and fiscal agents shall be 
consistent with CMIA Treasury-State Agreements or the CMIA default 
procedures codified at 31 CFR part 205, ``Withdrawal of Cash from the 
Treasury for Advances under Federal Grant and Other Programs.''
    (6) Written procedures for determining the reasonableness, 
allocability and allowability of costs in accordance with the provisions 
of the applicable Federal cost principles and the terms and conditions 
of the award.
    (7) Accounting records including cost accounting records that are 
supported by source documentation.
    (c) Where the Federal Government guarantees or insures the repayment 
of money borrowed by the recipient, the Contracting Officer, at his or 
her discretion, may require adequate bonding and insurance if the 
bonding and insurance requirements of the recipient are not deemed 
adequate to protect the interest of the Federal Government.
    (d) The Contracting Officer may require adequate fidelity bond 
coverage where the recipient lacks sufficient coverage to protect the 
Federal Government's interest.
    (e) Where bonds are required in the situations described in 
Sec. Sec. 600.121 (c) and (d), the bonds shall be obtained from 
companies holding certificates of authority as acceptable sureties, as 
prescribed in 31 CFR part 223, ``Surety Companies Doing Business with 
the United States.''
    (f) Individuals whose financial management systems do not meet the 
minimum standards of Sec. 600.121 (b) shall maintain a separate bank 
account for deposit of award or subaward funds. Disbursements by the 
recipient or subrecipient from this account shall be supported by source 
documentation such as canceled checks, paid bills, receipts, payrolls, 
etc.



Sec. 600.122  Payment.

    (a) Payment methods shall minimize the time elapsing between the 
transfer of funds from the United States Treasury and the issuance or 
redemption of checks, warrants, or payment by other means by the 
recipients. Payment methods of State agencies or instrumentalities shall 
be consistent with Treasury-State CMIA agreements or default procedures 
codified at 31 CFR part 205.
    (b) Recipients will be paid in advance, provided they maintain or 
demonstrate the willingness to maintain:
    (1) Written procedures that minimize the time elapsing between the 
transfer of funds and disbursement by the recipient, and
    (2) Financial management systems that meet the standards for fund 
control and accountability as established in Sec. 600.121. Cash 
advances to a recipient organization shall be limited to the minimum 
amounts needed and be timed to be in accordance with the actual, 
immediate cash requirements of the recipient organization in carrying 
out the purpose of the approved program or project. The timing and 
amount of cash advances shall be as close as is administratively 
feasible to the actual disbursements by the recipient organization for 
direct program or project costs and the proportionate share of any 
allowable indirect costs.
    (c) Whenever possible, advances shall be consolidated to cover 
anticipated cash needs for all awards made by the DOE to the recipient.
    (1) Advance payment mechanisms include, but are not limited to, 
Treasury check and electronic funds transfer.
    (2) Advance payment mechanisms are subject to 31 CFR part 205.
    (3) Recipients may submit requests for advances and reimbursements 
at least monthly when electronic fund transfers are not used.
    (d) Requests for Treasury check advance payment shall be submitted 
on SF-270, ``Request for Advance or Reimbursement,'' or other forms as 
may be authorized by OMB. This form is not to be used when Treasury 
check advance payments are made to the recipient automatically through 
the use of a predetermined payment schedule or if precluded by special 
DOE instructions for electronic funds transfer.
    (e) Reimbursement is the preferred method when the requirements in 
paragraph (b) of this section cannot be met. DOE may also use this 
method on any construction agreement, or if the

[[Page 104]]

major portion of the construction project is accomplished through 
private market financing or Federal loans, and the Federal assistance 
constitutes a minor portion of the project.
    (1) When the reimbursement method is used, DOE shall make payment 
within 30 days after receipt of the billing, unless the billing is 
improper.
    (2) Recipients are authorized to submit requests for reimbursement 
at least monthly when electronic funds transfers are not used.
    (f) If a recipient cannot meet the criteria for advance payments and 
DOE has determined that reimbursement is not feasible because the 
recipient lacks sufficient working capital, DOE may provide cash on a 
working capital advance basis. Under this procedure, DOE advances cash 
to the recipient to cover its estimated disbursement needs for an 
initial period generally geared to the recipient's disbursing cycle. 
Thereafter, DOE reimburses the recipient for its actual cash 
disbursements. The working capital advance method of payment will not be 
used for recipients unwilling or unable to provide timely advances to 
their subrecipient to meet the subrecipient's actual cash disbursements.
    (g) To the extent available, recipients shall disburse funds 
available from repayments to and interest earned on a revolving fund, 
program income, rebates, refunds, contract settlements, audit recoveries 
and interest earned on such funds before requesting additional cash 
payments.
    (h) Unless otherwise required by statute, DOE will not withhold 
payments for proper charges made by recipients at any time during the 
project period unless paragraph (h)(1) or (h)(2) of this section apply.
    (1) A recipient has failed to comply with the project objectives, 
the terms and conditions of the award, or DOE reporting requirements.
    (2) The recipient or subrecipient is delinquent in a debt to the 
United States. Under such conditions, the Federal awarding agency may, 
upon reasonable notice, inform the recipient that payments shall not be 
made for obligations incurred after a specified date until the 
conditions are corrected or the indebtedness to the Federal Government 
is liquidated. Before withholding any payment, DOE shall notify the 
recipient that payments shall not be made for obligations incurred after 
a specified date, which shall ordinarily be no sooner than 30 days from 
the date of the notice, until the recipient corrects the noncompliance 
or pays the indebtedness to the Federal government.
    (i) Standards governing the use of banks and other institutions as 
depositories of funds advanced under awards are as follows.
    (1) Except for situations described in paragraph (i)(2) of this 
section, DOE shall not require separate depository accounts for funds 
provided to a recipient or establish any eligibility requirements for 
depositories for funds provided to a recipient. However, recipients must 
be able to account for the receipt, obligation and expenditure of funds.
    (2) Advances of Federal funds shall be deposited and maintained in 
insured accounts whenever possible.
    (j) Consistent with the national goal of expanding the opportunities 
for women-owned and minority-owned business enterprises, recipients are 
encouraged to use women-owned and minority-owned banks (a bank which is 
owned at least 50 percent by women or minority group members).
    (k) Recipients shall maintain advances of Federal funds in interest 
bearing accounts, unless paragraph (k) (1), (2) or (3) of this section 
apply.
    (1) The recipient receives less than $120,000 in Federal awards per 
year.
    (2) The best reasonably available interest bearing account would not 
be expected to earn interest in excess of $250 per year on Federal cash 
balances.
    (3) The depository would require an average or minimum balance so 
high that it would not be feasible within the expected Federal and non-
Federal cash resources.
    (l) For those entities where CMIA and its implementing regulations 
do not apply, interest earned on Federal advances deposited in interest 
bearing accounts shall be remitted annually to the HHS Payment 
Management System through an electronic medium such as the FEDWIRE 
Deposit system.

[[Page 105]]

Recipients which do not have this capability should use a check. The 
address is the Department of Health and Human Services, Payment 
Management System, P.O. Box 6021, Rockville, MD 20852. Interest amounts 
up to $250 per year may be retained by the recipient for administrative 
expense. State universities and hospitals shall comply with CMIA, as it 
pertains to interest. If an entity subject to CMIA uses its own funds to 
pay pre-award costs for discretionary awards without prior written 
approval from the Federal awarding agency, it waives its right to 
recover the interest under CMIA.
    (m) Except as noted elsewhere in this subpart, only the following 
forms shall be authorized for the recipients in requesting advances and 
reimbursements. Federal agencies shall not require more than an original 
and two copies of these forms.
    (1) SF-270, Request for Advance or Reimbursement. Each Federal 
awarding agency shall adopt the SF-270 as a standard form for all 
nonconstruction programs when electronic funds transfer or predetermined 
advance methods are not used. Federal awarding agencies, however, have 
the option of using this form for construction programs in lieu of the 
SF-271, ``Outlay Report and Request for Reimbursement for Construction 
Programs.''
    (2) SF-271, Outlay Report and Request for Reimbursement for 
Construction Programs. Each Federal awarding agency shall adopt the SF-
271 as the standard form to be used for requesting reimbursement for 
construction programs. However, a Federal awarding agency may substitute 
the SF-270 when the Federal awarding agency determines that it provides 
adequate information to meet Federal needs.
    (n) The DOE may convert a recipient from advance payment to 
reimbursement whenever the recipient no longer meets the criteria for 
advance payment specified in paragraph (b) of this section. Any such 
conversion may be accomplished only after the DOE has advised the 
recipient in writing of the reasons for the proposed action and has 
provided a period of at least 30 days within which the recipient may 
take corrective action or provide satisfactory assurances of its 
intention to take such action.
    (o) With prior DOE approval and in accordance with written DOE 
instructions, a recipient may assign to a bank, trust company or other 
financing institution, including any Federal lending agency, 
reimbursement by Treasury check due from DOE under the following 
conditions:
    (1) The award provides for reimbursement totaling $1,000 or more;
    (2) The assignment covers all amounts payable under the award that 
have not already been paid;
    (3) Reassignment is prohibited; and
    (4) The assignee files a written notice of award payment assignment 
and a true copy of the instrument of assignment with DOE. Any interest 
costs resulting from a loan obtained on the basis of an assignment are 
unallowable charges to DOE award funds or any required cost sharing.
    (p) Recipients shall observe the requirements of this section in 
making or withholding payments to subrecipients except that the forms 
used by recipients are not required to be used by subrecipients when 
requesting advances or reimbursement.



Sec. 600.123  Cost sharing or matching.

    (a) All cost sharing or matching contributions, including cash and 
third party in-kind, shall meet all of the following criteria.
    (1) Are verifiable from the recipient's records.
    (2) Are not included as contributions for any other federally-
assisted project or program.
    (3) Are necessary and reasonable for proper and efficient 
accomplishment of project or program objectives.
    (4) Are allowable under the applicable cost principles.
    (5) Are not paid by the Federal Government under another award, 
except where authorized by Federal statute to be used for cost sharing 
or matching.
    (6) Are provided for in the approved budget.
    (7) Conform to other provisions of this subpart, as applicable.
    (b) Unrecovered indirect costs may be included as part of cost 
sharing or matching.

[[Page 106]]

    (c) Values for recipient contributions of services and property 
shall be established in accordance with the applicable cost principles. 
If DOE authorizes recipients to donate buildings or land for 
construction/facilities acquisition projects or long-term use, the value 
of the donated property for cost sharing or matching shall be the lesser 
of either paragraph (c)(1) or (2) of this section.
    (1) The certified value of the remaining life of the property 
recorded in the recipient's accounting records at the time of donation.
    (2) The current fair market value. However, when there is sufficient 
justification, DOE may approve the use of the current fair market value 
of the donated property, even if it exceeds the certified value at the 
time of donation to the project.
    (d) Volunteer services furnished by professional and technical 
personnel, consultants, and other skilled and unskilled labor may be 
counted as cost sharing or matching if the service is an integral and 
necessary part of an approved project or program. Rates for volunteer 
services shall be consistent with those paid for similar work in the 
recipient's organization. In those instances in which the required 
skills are not found in the recipient organization, rates shall be 
consistent with those paid for similar work in the labor market in which 
the recipient competes for the kind of services involved. In either 
case, paid fringe benefits that are reasonable, allowable, and allocable 
may be included in the valuation.
    (e) When an employer other than the recipient furnishes the services 
of an employee, these services shall be valued at the employee's regular 
rate of pay (plus an amount of fringe benefits that are reasonable, 
allowable, and allocable, but exclusive of overhead costs), provided 
these services are in the same skill for which the employee is normally 
paid.
    (f) Donated supplies may include such items as office supplies, 
laboratory supplies or workshop and classroom supplies. Value assessed 
to donated supplies included in the cost sharing or matching share shall 
be reasonable and shall not exceed the fair market value of the property 
at the time of the donation.
    (g) The method used for determining cost sharing or matching for 
donated equipment, buildings and land for which title passes to the 
recipient may differ according to the purpose of the award, if either 
paragraph (g)(1) or (2) of this section apply.
    (1) If the purpose of the award is to assist the recipient in the 
acquisition of equipment, buildings or land, the total value of the 
donated property may be claimed as cost sharing or matching.
    (2) If the purpose of the award is to support activities that 
require the use of equipment, buildings or land, normally only 
depreciation or use charges for equipment and buildings may be made. 
However, the full value of equipment or other capital assets and fair 
rental charges for land may be allowed, provided that DOE has approved 
the charges.
    (h) The value of donated property shall be determined in accordance 
with the usual accounting policies of the recipient, with the following 
qualifications.
    (1) The value of donated land and buildings shall not exceed its 
fair market value at the time of donation to the recipient as 
established by an independent appraiser (e.g., certified real property 
appraiser or General Services Administration representative) and 
certified by a responsible official of the recipient.
    (2) The value of donated equipment shall not exceed the fair market 
value of equipment of the same age and condition at the time of 
donation.
    (3) The value of donated space shall not exceed the fair rental 
value of comparable space as established by an independent appraisal of 
comparable space and facilities in a privately-owned building in the 
same locality.
    (4) The value of loaned equipment shall not exceed its fair rental 
value.
    (i) The following requirements pertain to the recipient's supporting 
records for in-kind contributions from third parties.
    (1) Volunteer services shall be documented and, to the extent 
feasible, supported by the same methods used by the recipient for its 
own employees.

[[Page 107]]

    (2) The basis for determining the valuation for personal service, 
material, equipment, buildings and land shall be documented.
    (j) DOE shall specify in the solicitation or in the program rule, if 
any, any cost sharing requirement. The award document shall be specific 
as to whether the cost sharing is based on a minimum amount for the 
recipient or on a percentage of total costs.
    (k) If DOE requires that a recipient provide cost sharing which is 
not required by statute or which exceeds a statutory minimum, DOE shall 
state in the program rule or solicitation the reasons for requiring such 
cost sharing, recommended or required levels of cost sharing, and the 
circumstances under which the requirement for cost sharing may be waived 
or adjusted during any negotiation.
    (l) Whenever DOE negotiates the amount of cost sharing, DOE may take 
into account such factors as the use of program income (see Sec. 
600.124), patent rights, and rights in data. Foregone fee or profit 
shall not be considered in establishing the extent of cost sharing.



Sec. 600.124  Program income.

    (a) The standards set forth in this section shall be used to account 
for program income related to projects financed in whole or in part with 
DOE funds.
    (b) Except as provided in paragraph (h) of this section, program 
income earned during the project period shall be retained by the 
recipient and, in accordance with program regulations or the terms and 
conditions of the award, shall be used in one or more of the following 
ways.
    (1) Added to funds committed to the project and used to further 
eligible project objectives.
    (2) Used to finance the non-DOE share of the project.
    (3) Deducted from the total project allowable cost in determining 
the net allowable costs on which the share of costs is based.
    (c) When DOE authorizes the disposition of program income as 
described in paragraphs (b)(1) or (b)(2) of this section, program income 
in excess of any limits stipulated shall be used in accordance with 
paragraph (b)(3) of this section.
    (d) In the event that the program regulations or the terms and 
conditions of the award do not specify how program income is to be used, 
paragraph (b)(3) of this section shall apply automatically to all 
projects or programs except research. For awards that support research, 
paragraph (b)(1) of this section shall apply automatically unless the 
award indicates another alternative in the terms and conditions, the 
recipient is subject to special award conditions, as indicated in Sec. 
600.114, or the recipient is a commercial organization.
    (e) Unless program regulations or the terms and conditions of the 
award provide otherwise, recipients shall have no obligation to the 
Federal Government regarding program income earned after the end of the 
project period.
    (f) Unless program regulations or the terms and conditions of the 
award provide otherwise, costs incident to the generation of program 
income may be deducted from gross income to determine program income, 
provided these costs have not been charged to the award.
    (g) Proceeds from the sale of property shall be handled in 
accordance with the requirements of the Property Standards (See 
Sec. Sec. 600.130 through 600.137).
    (h) Unless program regulations or the terms and condition of the 
award provide otherwise, recipients shall have no obligation to the 
Federal Government with respect to program income earned from license 
fees and royalties for copyrighted material, patents, patent 
applications, trademarks, and inventions produced under an award. 
However, Patent and Trademark Amendments (35 U.S.C. Chapter 18) apply to 
inventions made under an experimental, developmental, or research award.



Sec. 600.125  Revision of budget and program plans.

    (a) The budget plan is the financial expression of the project or 
program as approved during the award process. It includes the sum of the 
Federal and non-Federal share when there are cost

[[Page 108]]

sharing requirements. It shall be related to performance for program 
evaluation purposes whenever appropriate.
    (b) Recipients are required to report deviations from budget and 
program plans, and request prior approvals for budget and program plan 
revisions, in accordance with this section.
    (c) For nonconstruction awards, recipients shall request prior 
approvals from the DOE for one or more of the following program or 
budget related reasons.
    (1) Change in the scope or the objective of the project or program 
(even if there is no associated budget revision requiring prior written 
approval).
    (2) Change in a key person specified in the application or award 
document.
    (3) The absence for more than three months, or a 25 percent 
reduction in time devoted to the project, by the approved project 
director or principal investigator.
    (4) The need for additional Federal funding.
    (5) If required by program regulations, the transfer of amounts 
budgeted for indirect costs to absorb increases in direct costs, or vice 
versa.
    (6) The inclusion, unless waived by program regulations or the terms 
and conditions of award, of costs that require prior approval in 
accordance with OMB Circular A-21, ``Cost Principles for Institutions of 
Higher Education,'' OMB Circular A-122, ``Cost Principles for Non-Profit 
Organizations,'' or 45 CFR part 74 Appendix E, ``Principles for 
Determining Costs Applicable to Research and Development under Grants 
and Contracts with Hospitals,'' or 48 CFR part 31, ``Contract Cost 
Principles and Procedures,'' as applicable.
    (7) The transfer of funds allotted for training allowances (direct 
payment to trainees) to other categories of expense.
    (8) Unless described in the application and funded in the approved 
awards, the subaward, transfer or contracting out of any work under an 
award. This provision does not apply to the purchase of supplies, 
material, equipment or general support services.
    (d) No other prior approval requirements for specific items may be 
imposed unless a deviation has been approved in accordance with Sec. 
600.4.
    (e) Except for requirements listed in paragraphs (c)(1) and (c)(4) 
of this section, program regulations may waive cost-related and 
administrative prior written approvals required by this subpart and its 
Appendices. Such waivers may include authorizing recipients to do any 
one or more of the following.
    (1) Incur pre-award costs 90 calendar days prior to award without 
prior approval or more than 90 calendar days with the prior approval of 
DOE. All pre-award costs are incurred at the recipient's risk (i.e., DOE 
is under no obligation to reimburse such costs if for any reason the 
recipient does not receive an award or if the award is less than 
anticipated and inadequate to cover such costs).
    (2) Initiate a one-time extension of the expiration date of the 
final budget period of the project of up to 12 months unless one or more 
of the following conditions apply.
    (i) The terms and conditions of award prohibit the extension.
    (ii) The extension requires additional Federal funds.
    (iii) The extension involves any change in the approved objectives 
or scope of the project.
    (iv) The extension is being exercised merely for the purpose of 
using unobligated balances. For one-time extensions, the recipient must 
notify the DOE in writing with the supporting reasons and revised 
expiration date at least 10 days before the expiration date specified in 
the award.
    (3) Carry forward unobligated balances to subsequent funding 
periods.
    (4) For awards that support research, unless the terms and 
conditions of award provide otherwise, the prior approval requirements 
described in paragraph (e) of this section are automatically waived 
(i.e., recipients need not obtain such prior approvals) unless one of 
the conditions included in Sec. 600.125(e)(2) applies.
    (5) For continuation awards within a multiple year project in 
support of research, prior to receipt of continuation funding, preaward 
expenditures by recipients are not subject to the limitation or approval 
requirements of Sec. 600.125(e)(1). Nevertheless, incurrence by the 
recipient does not impose any obligation on DOE if a continuation

[[Page 109]]

award is not subsequently made, or if an award is made for a lesser 
amount than the recipient expected.
    (f) Program regulations may restrict the transfer of funds among 
direct cost categories or programs, functions and activities for awards 
in which DOE's share of the project exceeds $100,000 and the cumulative 
amount of such transfers exceeds or is expected to exceed 10 percent of 
the total budget as last approved by DOE. However, no program regulation 
shall permit a transfer that would cause any Federal appropriation or 
part thereof to be used for purposes other than those consistent with 
the original intent of the appropriation.
    (g) All other changes to nonconstruction budgets, except for the 
changes described in paragraph (j) of this section, do not require prior 
approval.
    (h) For construction awards, recipients shall request prior written 
approval promptly from the Contracting Officer for budget revisions 
whenever paragraph (h) (1), (2) or (3) of this section apply.
    (1) The revision results from changes in the scope or the objective 
of the project or program.
    (2) The need arises for additional Federal funds to complete the 
project.
    (3) A revision is desired which involves specific costs for which 
prior written approval requirements may be imposed consistent with 
applicable OMB cost principles listed in Sec. 600.127.
    (i) Except in accordance with the deviation procedures in 600.4 or 
as may be provided for in program regulations, no other prior approval 
requirements for specific items will be imposed by DOE.
    (j) When DOE makes an award that provides support for both 
construction and nonconstruction work, DOE may require the recipient to 
request prior approval from DOE before making any fund or budget 
transfers between the two types of work supported.
    (k) For both construction and nonconstruction awards, recipients 
shall notify DOE in writing promptly whenever the amount of Federal 
authorized funds is expected to exceed the needs of the recipient for 
the project period by more than $5000 or five percent of the Federal 
award, whichever is greater. This notification shall not be required if 
an application for additional funding is submitted for a continuation 
award.
    (l) Requests for budget revisions may be made by letter.
    (m) Within 30 calendar days from the date of receipt of the request 
for budget revisions, DOE shall review the request and notify the 
recipient whether the budget revisions have been approved. If the 
revision is still under consideration at the end of 30 calendar days, 
DOE shall inform the recipient in writing of the date when the recipient 
may expect the decision.
    (n) DOE approval or disapproval of a request for a budget or project 
revision shall be in writing and signed by a DOE Contracting Officer.
    (o) A request by a subrecipient for prior approval shall be 
addressed in writing to the recipient. The recipient shall promptly 
review such request and shall approve or disapprove the request in 
writing within 30 days from the date of the recipient's request for the 
revision. A recipient shall not approve any budget or project revision 
which is inconsistent with the purpose or terms and conditions of the 
DOE award. If the revision requested by the subrecipient would result in 
a change to the recipient's approved budget or approved project which 
requires DOE prior approval, the recipient shall obtain DOE approval 
before approving such revision.



Sec. 600.126  Non-Federal audits.

    (a) Recipients and subrecipients that are institutions of higher 
education or other non-profit organizations (including hospitals) shall 
be subject to the audit requirements contained in the Single Audit Act 
Amendments of 1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, 
``Audits of States, Local Governments, and Non-Profit Organizations.''
    (b) State and local governments shall be subject to the audit 
requirements contained in the Single Audit Act Amendments of 1996 (31 
U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of States, 
Local Governments, and Non-Profit Organizations.''
    (c) For-profit organizations that are subrecipients are subject to 
the audit

[[Page 110]]

requirements specified in 10 CFR 600.316.

[59 FR 53266, Oct. 21, 1994, as amended at 62 FR 45939, 45940, Aug. 29, 
1997; 68 FR 50650, Aug. 21, 2003]



Sec. 600.127  Allowable costs.

    (a) General. For each kind of recipient, there is a set of Federal 
principles for determining allowable costs. Allowability of costs shall 
be determined in accordance with the cost principles applicable to the 
entity incurring the costs. Thus, allowability of costs incurred by 
State, local or federally-recognized Indian tribal governments is 
determined in accordance with the provisions of OMB Circular A-87, 
``Cost Principles for State and Local Governments.'' The allowability of 
costs incurred by non-profit organizations is determined in accordance 
with the provisions of OMB Circular A-122, ``Cost Principles for Non-
Profit Organizations.'' The allowability of costs incurred by 
institutions of higher education is determined in accordance with the 
provisions of OMB Circular A-21, ``Cost Principles for Educational 
Institutions.'' The allowability of costs incurred by hospitals is 
determined in accordance with the provisions of Appendix E of 45 CFR 
part 74, ``Principles for Determining Costs Applicable to Research and 
Development Under Grants and Contracts with Hospitals.'' The 
allowability of costs incurred by commercial organizations and those 
non-profit organizations listed in Attachment C to Circular A-122 is 
determined in accordance with the provisions of the Federal Acquisition 
Regulation (FAR) at 48 CFR part 31.
    (b) Indirect costs. Unless restricted by Federal statute or program 
rule, DOE shall provide for the reimbursement of appropriate indirect 
costs.
    (1) DOE shall include an amount for indirect costs in an award only 
if the applicant requests reimbursement of such costs and--
    (i) Submits evidence that a cognizant Federal agency has been 
assigned to establish indirect cost rates for the applicant and 
indicates or provides evidence that--
    (A) A current agreement containing an applicable approved indirect 
cost rate(s) covering all or part of the budget period for which DOE may 
provide funding has been established; or
    (B) An indirect cost proposal has been submitted to the cognizant 
agency in order to establish an applicable approved indirect cost 
rate(s) covering all or part of the budget period for which DOE may 
provide funding; or
    (C) An indirect cost proposal covering all or part of the budget 
period and applicable to the activities for which DOE may provide 
funding will be submitted to the cognizant agency for approval no later 
than three months after the beginning date of the initial budget period 
of the DOE award or, for subsequent budget periods, in accordance with 
any schedule established by the cognizant agency; or
    (ii) If not assigned to a cognizant agency, the applicant includes, 
in the application, data that is current, complete, accurate, and 
sufficient to allow the Contracting Officer to determine a rate(s) for 
indirect costs. If the total approved budget will not exceed $100,000 or 
if the amount requested for indirect costs does not exceed $5,000, DOE 
may waive the requirement for negotiation of a rate and, in lieu 
thereof, provide a reasonable allowance for such costs.
    (2) Indirect cost proposals shall be prepared and submitted in 
accordance with the applicable Federal cost principles and instructions 
from the cognizant agency or from DOE, as appropriate.
    (3) If a subaward under an award or subaward provides for the 
payment of indirect costs, the recipient or subrecipient shall be 
responsible for negotiating appropriate indirect costs, using the cost 
principles applicable to the subrecipient or contractor, unless the 
subrecipient or contractor has negotiated an applicable rate directly 
with DOE or another Federal department or agency. DOE may review and 
audit the procedures a recipient or subrecipient uses in conducting 
indirect cost negotiations.
    (c) Fee or profit. No increment above cost may be paid to a 
recipient or subrecipient under a DOE award or subaward. A fee or profit 
may be paid to a contractor providing goods or

[[Page 111]]

services under a contract with a recipient or subrecipient.

[59 FR 53266, Oct. 21, 1994, as amended at 68 FR 50650, Aug. 21, 2003]



Sec. 600.128  Period of availability of funds.

    Where a funding period is specified, a recipient may charge to the 
award only allowable costs resulting from obligations incurred during 
the funding period and any pre-award costs authorized by DOE.

                           Property Standards



Sec. 600.130  Purpose of property standards.

    Sections 600.131 through 600.137 set forth uniform standards 
governing management and disposition of property furnished by the 
Federal Government or whose cost was charged to a project supported by a 
Federal award. Recipients shall observe these standards under awards and 
shall not impose additional requirements, unless specifically required 
by Federal statute or program regulations. The recipient may use its own 
property management standards and procedures provided it observes the 
provisions of Sec. Sec. 600.131 through 600.137.



Sec. 600.131  Insurance coverage.

    Recipients shall, at a minimum, provide the equivalent insurance 
coverage for real property and equipment acquired with DOE funds as 
provided to property owned by the recipient. Federally-owned property 
need not be insured unless required by the terms and conditions of the 
award.



Sec. 600.132  Real property.

    Unless otherwise provided by statute or program regulations, the 
requirements concerning the use and disposition of real property 
acquired in whole or in part under awards are as follows.
    (a) Title to real property shall vest in the recipient subject to 
the condition that the recipient shall use the real property for the 
authorized purpose of the project as long as it is needed and shall not 
encumber the property without approval of DOE.
    (b) The recipient shall obtain written approval by DOE for the use 
of real property in other federally-sponsored projects when the 
recipient determines that the property is no longer needed for the 
purpose of the original project. Use in other projects shall be limited 
to those under federally-sponsored projects (i.e., awards) or programs 
that have purposes consistent with those authorized for support by DOE.
    (c) When the real property is no longer needed as provided in 
paragraphs (a) and (b) of this section, the recipient shall request 
disposition instructions from DOE or its successor Federal awarding 
agency. DOE will give one or more of the following disposition 
instructions.
    (1) The recipient may be permitted to retain title without further 
obligation to the Federal Government after it compensates the Federal 
Government for that percentage of the current fair market value of the 
property attributable to the Federal participation in the project.
    (2) The recipient may be directed to sell the property under 
guidelines provided by DOE and pay the Federal Government for that 
percentage of the current fair market value of the property attributable 
to the Federal participation in the project (after deducting actual and 
reasonable selling and fix-up expenses, if any, from the sales 
proceeds). When the recipient is authorized or required to sell the 
property, proper sales procedures shall be established that provide for 
competition to the extent practicable and result in the highest possible 
return.
    (3) The recipient may be directed to transfer title to the property 
to the Federal Government or to an eligible third party provided that, 
in such cases, the recipient shall be entitled to compensation for its 
attributable percentage of the current fair market value of the 
property.



Sec. 600.133  Federally-owned and exempt property.

    (a) Federally-owned property. (1) Title to federally-owned property 
remains vested in the Federal Government. Recipients shall submit 
annually an inventory listing of federally-owned property in their 
custody to DOE. Upon completion of the award or when the

[[Page 112]]

property is no longer needed, the recipient shall report the property to 
DOE for further Federal agency utilization.
    (2) If DOE has no further need for the property, it shall be 
declared excess and reported to the General Services Administration, 
unless DOE has statutory authority to dispose of the property by 
alternative methods (e.g., the authority provided by the Federal 
Technology Transfer Act (15 U.S.C. 3710 (i)) to donate research 
equipment to educational and non-profit organizations in accordance with 
E.O. 12821, ``Improving Mathematics and Science Education in Support of 
the National Education Goals.'') Appropriate instructions shall be 
issued to the recipient by DOE.
    (b) Exempt property. When statutory authority exists, DOE may vest 
title to property acquired with Federal funds in the recipient without 
further obligation to the Federal Government and under conditions DOE 
considers appropriate. For example, under 31 U.S.C. 6306, DOE may so 
vest title to tangible personal property under a grant or cooperative 
agreement for basic or applied research in a nonprofit institution of 
higher education or in a nonprofit organization whose primary purpose is 
conducting scientific research. Such property is ``exempt property.'' 
Program regulations or the terms and conditions of award may establish 
provisions for vesting title to exempt property. Should such conditions 
not be established and the recipient has no need for the equipment, the 
recipient shall request disposition instructions from DOE. If DOE does 
not issue disposition instructions within 120 calendar days of receipt 
of the request, title to the property shall vest in the recipient 
without further obligation to the Federal Government. If, at the end of 
the project, DOE fails to issue disposition instructions within 120 
calendar days of the receipt of a final inventory, title to the property 
shall vest in the recipient without further obligation to the Federal 
Government.



Sec. 600.134  Equipment.

    (a) Title to equipment acquired by a recipient with Federal funds 
shall vest in the recipient, subject to conditions of this section.
    (b) The recipient shall not use equipment acquired with Federal 
funds to provide services to non-Federal outside organizations for a fee 
that is less than private companies charge for equivalent services, 
unless specifically authorized by Federal statute, for as long as the 
Federal Government retains an interest in the equipment.
    (c) The recipient shall use the equipment in the project or program 
for which it was acquired as long as needed, whether or not the project 
or program continues to be supported by Federal funds and shall not 
encumber the property without approval of DOE. When no longer needed for 
the original project or program, the recipient shall use the equipment 
in connection with its other federally-sponsored activities, in the 
following order of priority:
    (1) Activities sponsored by DOE, then
    (2) Activities sponsored by other Federal agencies.
    (d) During the time that equipment is used on the project or program 
for which it was acquired, the recipient shall make it available for use 
on other projects or programs if such other use will not interfere with 
the work on the project or program for which the equipment was 
originally acquired. First preference for such other use shall be given 
to other projects or programs sponsored by DOE that financed the 
equipment; second preference shall be given to projects or programs 
sponsored by other Federal awarding agencies. If the equipment is owned 
by the Federal Government, use on other activities not sponsored by the 
Federal Government shall be permissible if authorized by DOE. User 
charges shall be treated as program income.
    (e) When acquiring replacement equipment, the recipient may use the 
equipment to be replaced as trade-in or sell the equipment and use the 
proceeds to offset the costs of the replacement equipment subject to the 
approval of DOE.
    (f) The recipient's property management standards for equipment 
acquired with Federal funds and federally-owned equipment shall include 
all of the following.

[[Page 113]]

    (1) Equipment records shall be maintained accurately and shall 
include the following information.
    (i) A description of the equipment.
    (ii) Manufacturer's serial number, model number, Federal stock 
number, national stock number, or other identification number.
    (iii) Source of the equipment, including the award number.
    (iv) Whether title vests in the recipient or the Federal Government.
    (v) Acquisition date (or date received, if the equipment was 
furnished by the Federal Government) and cost.
    (vi) Information from which one can calculate the percentage of 
Federal participation in the cost of the equipment (not applicable to 
equipment furnished by the Federal Government).
    (vii) Location and condition of the equipment and the date the 
information was reported.
    (viii) Unit acquisition cost.
    (ix) Ultimate disposition data, including date of disposal and sales 
price or the method used to determine current fair market value where a 
recipient compensates DOE for its share.
    (2) Equipment owned by the Federal Government shall be identified to 
indicate Federal ownership.
    (3) A physical inventory of equipment shall be taken and the results 
reconciled with the equipment records at least once every two years. Any 
differences between quantities determined by the physical inspection and 
those shown in the accounting records shall be investigated to determine 
the causes of the difference. The recipient shall, in connection with 
the inventory, verify the existence, current utilization, and continued 
need for the equipment.
    (4) A control system shall be in effect to insure adequate 
safeguards to prevent loss, damage, or theft of the equipment. Any loss, 
damage, or theft of equipment shall be investigated and fully 
documented; if the equipment was owned by the Federal Government, the 
recipient shall promptly notify DOE.
    (5) Adequate maintenance procedures shall be implemented to keep the 
equipment in good condition.
    (6) Where the recipient is authorized or required to sell the 
equipment, proper sales procedures shall be established which provide 
for competition to the extent practicable and result in the highest 
possible return.
    (g) When the recipient no longer needs the equipment, the equipment 
may be used for other activities in accordance with the following 
standards. Equipment with a current per-unit fair market value of less 
than $5000 may be retained, sold or otherwise disposed of with no 
further obligation to the awarding agency. For equipment with a current 
per unit fair market value of $5000 or more, the recipient may retain 
the equipment for other uses provided that compensation is made to the 
original Federal awarding agency or its successor. The amount of 
compensation shall be computed by applying the percentage of Federal 
participation in the cost of the original project or program to the 
current fair market value of the equipment. If the recipient has no need 
for the equipment, the recipient shall request disposition instructions 
from DOE. DOE shall determine whether the equipment can be used to meet 
DOE's requirements. If no requirement exists within DOE, the 
availability of the equipment shall be reported to the General Services 
Administration by DOE to determine whether a requirement for the 
equipment exists in other Federal agencies. DOE will issue instructions 
to the recipient no later than 120 calendar days after the recipient's 
request and the following procedures shall govern.
    (1) If so instructed or if disposition instructions are not issued 
within 120 calendar days after the recipient's request, the recipient 
shall sell the equipment and reimburse DOE an amount computed by 
applying to the sales proceeds the percentage of Federal participation 
in the cost of the original project or program. However, the recipient 
shall be permitted to deduct and retain from the Federal share $500 or 
ten percent of the proceeds, whichever is less, for the recipient's 
selling and handling expenses.
    (2) If the recipient is instructed to ship the equipment elsewhere, 
the recipient shall be reimbursed by the Federal Government by an amount 
which is computed by applying the percentage of the recipient's 
participation in

[[Page 114]]

the cost of the original project or program to the current fair market 
value of the equipment, plus any reasonable shipping or interim storage 
costs incurred.
    (3) If the recipient is instructed to otherwise dispose of the 
equipment, the recipient shall be reimbursed by DOE for such costs 
incurred in its disposition.
    (h) DOE reserves the right, at the end of a project, to transfer the 
title to the Federal Government or to a third party named by DOE when 
such third party is otherwise eligible under existing statutes. Such 
transfer shall be subject to the following standards.
    (1) The equipment shall be appropriately identified in the award or 
otherwise made known to the recipient in writing.
    (2) DOE shall issue disposition instructions within 120 calendar 
days after receipt of a final inventory. The final inventory shall list 
all equipment acquired with award funds and federally-owned equipment. 
If DOE fails to issue disposition instructions within the 120 calendar 
day period, the provisions of Sec. 600.134(g)(1) apply.
    (3) When DOE exercises its right to take title, the equipment shall 
be subject to the provisions for federally-owned equipment.



Sec. 600.135  Supplies and other expendable property.

    (a) Title to supplies and other expendable property shall vest in 
the recipient upon acquisition. If there is a residual inventory of 
unused supplies exceeding $5000 in total aggregate value upon 
termination or completion of the project or program and the supplies are 
not needed for any other federally-sponsored project or program, the 
recipient shall retain the supplies for use on non-Federal sponsored 
activities or sell them, but shall, in either case, compensate the 
Federal Government for its share. The amount of compensation shall be 
computed in the same manner as for equipment.
    (b) The recipient shall not use supplies acquired with Federal funds 
to provide services to non-Federal outside organizations for a fee that 
is less than private companies charge for equivalent services, unless 
specifically authorized by Federal statute as long as the Federal 
Government retains an interest in the supplies.



Sec. 600.136  Intangible property.

    (a) Recipients may copyright any work that is subject to copyright 
and was developed, or for which ownership was purchased, under an award. 
DOE reserves a royalty-free, nonexclusive and irrevocable right to 
reproduce, publish or otherwise use the work for Federal purposes and to 
authorize others to do so.
    (b) Recipients are subject to applicable regulations governing 
patents and inventions, including government-wide regulations issued by 
the Department of Commerce at 37 CFR part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts and Cooperative Agreements.''
    (c) The DOE has the right to:
    (1) Obtain, reproduce, publish or otherwise use the data first 
produced under an award; and
    (2) Authorize others to receive, reproduce, publish, or otherwise 
use such data for Federal purposes.
    (d)(1) In addition, in response to a Freedom of Information Act 
(FOIA) request for research data relating to published research findings 
produced under an award that were used by the Federal Government in 
developing an agency action that has the force and effect of law, the 
DOE shall request, and the recipient shall provide, within a reasonable 
time, the research data so that they can be made available to the public 
through the procedures established under the FOIA. If the DOE obtains 
the research data solely in response to a FOIA request, the agency may 
charge the requester a reasonable fee equaling the full incremental cost 
of obtaining the research data. This fee should reflect costs incurred 
by the agency, the recipient, and applicable subrecipients. This fee is 
in addition to any fees the agency may assess under the FOIA (5 U.S.C. 
552(a)(4)(A)).
    (2) The following definitions apply for purposes of this paragraph 
(d):
    (i) Research data is defined as the recorded factual material 
commonly accepted in the scientific community as

[[Page 115]]

necessary to validate research findings, but not any of the following: 
preliminary analyses, drafts of scientific papers, plans for future 
research, peer reviews, or communications with colleagues. This 
``recorded'' material excludes physical objects (e.g., laboratory 
samples). Research data also do not include:
    (A) Trade secrets, commercial information, materials necessary to be 
held confidential by a researcher until they are published, or similar 
information which is protected under law; and
    (B) Personnel and medical information and similar information the 
disclosure of which would constitute a clearly unwarranted invasion of 
personal privacy, such as information that could be used to identify a 
particular person in a research study.
    (ii) Published is defined as either when:
    (A) Research findings are published in a peer-reviewed scientific or 
technical journal; or
    (B) A Federal agency publicly and officially cites the research 
findings in support of an agency action that has the force and effect of 
law.
    (iii) Used by the Federal Government in developing an agency action 
that has the force and effect of law is defined as when an agency 
publicly and officially cites the research findings in support of an 
agency action that has the force and effect of law.
    (e) Title to intangible property and debt instruments acquired under 
an award or subaward vests upon acquisition in the recipient. The 
recipient shall use that property for the originally-authorized purpose, 
and the recipient shall not encumber the property without approval of 
DOE. When no longer needed for the originally authorized purpose, 
disposition of the intangible property shall occur in accordance with 
the provisions of Sec. 600.134(g).

[61 FR 7165, Feb. 26, 1996, as amended at 65 FR 14407, 14408, Mar. 16, 
2000; 68 FR 50650, Aug. 21, 2003]



Sec. 600.137  Property trust relationship.

    Real property, equipment, intangible property and debt instruments 
that are acquired or improved with Federal funds shall be held in trust 
by the recipient as trustee for the beneficiaries of the project or 
program under which the property was acquired or improved. Recipients 
shall record liens or other appropriate notices of record to indicate 
that personal or real property has been acquired or improved with 
Federal funds and that use and disposition conditions apply to the 
property.

                          Procurement Standards



Sec. 600.140  Purpose of procurement standards.

    Sections 600.141 through 600.148 set forth standards for use by 
recipients in establishing procedures for the procurement of supplies 
and other expendable property, equipment, real property and other 
services with Federal funds. These standards are furnished to ensure 
that such materials and services are obtained in an effective manner and 
in compliance with the provisions of applicable Federal statutes and 
executive orders. No additional procurement standards or requirements 
shall be imposed by DOE upon recipients, unless specifically required by 
Federal statute or executive order or in accordance with the deviation 
procedures of Sec. 600.4.



Sec. 600.141  Recipient responsibilities.

    The standards contained in this section do not relieve the recipient 
of the contractual responsibilities arising under its contract(s). The 
recipient is the responsible authority, without recourse to DOE 
regarding the settlement and satisfaction of all contractual and 
administrative issues arising out of procurements entered into in 
support of an award or other agreement. This includes disputes, claims, 
protests of award, source evaluation or other matters of a contractual 
nature. Matters concerning violation of statute are to be referred to 
such Federal, State or local authority as may have proper jurisdiction.



Sec. 600.142  Codes of conduct.

    The recipient shall maintain written standards of conduct governing 
the performance of its employees engaged in the award and administration 
of contracts. No employee, officer, or agent shall participate in the 
selection, award, or administration of a contract

[[Page 116]]

supported by Federal funds if a real or apparent conflict of interest 
would be involved. Such a conflict would arise when the employee, 
officer, or agent, any member of his or her immediate family, his or her 
partner, or an organization which employs or is about to employ any of 
the parties indicated herein, has a financial or other interest in the 
firm selected for an award. The officers, employees, and agents of the 
recipient shall neither solicit nor accept gratuities, favors, or 
anything of monetary value from contractors, or parties to 
subagreements. However, recipients may set standards for situations in 
which the financial interest is not substantial or the gift is an 
unsolicited item of nominal value. The standards of conduct shall 
provide for disciplinary actions to be applied for violations of such 
standards by officers, employees, or agents of the recipient.



Sec. 600.143  Competition.

    All procurement transactions shall be conducted in a manner to 
provide, to the maximum extent practical, open and free competition. The 
recipient shall be alert to organizational conflicts of interest as well 
as noncompetitive practices among contractors that may restrict or 
eliminate competition or otherwise restrain trade. In order to ensure 
objective contractor performance and eliminate unfair competitive 
advantage, contractors that develop or draft specifications, 
requirements, statements of work, invitations for bids and/or requests 
for proposals shall be excluded from competing for such procurements. 
Awards shall be made to the bidder or offeror whose bid or offer is 
responsive to the solicitation and is most advantageous to the 
recipient, price, quality and other factors considered. Solicitations 
shall clearly set forth all requirements that the bidder or offeror 
shall fulfill in order for the bid or offer to be evaluated by the 
recipient. Any and all bids or offers may be rejected when it is in the 
recipient's interest to do so.



Sec. 600.144  Procurement procedures.

    (a) All recipients shall establish written procurement procedures. 
These procedures shall provide for, at a minimum, that paragraphs 
(a)(1), (2) and (3) of this section apply.
    (1) Recipients avoid purchasing unnecessary items.
    (2) Where appropriate, an analysis is made of lease and purchase 
alternatives to determine which would be the most economical and 
practical procurement.
    (3) Solicitations for goods and services provide for all of the 
following.
    (i) A clear and accurate description of the technical requirements 
for the material, product or service to be procured. In competitive 
procurements, such a description shall not contain features which unduly 
restrict competition.
    (ii) Requirements which the bidder/offeror must fulfill and all 
other factors to be used in evaluating bids or proposals.
    (iii) A description, whenever practicable, of technical requirements 
in terms of functions to be performed or performance required, including 
the range of acceptable characteristics or minimum acceptable standards.
    (iv) The specific features of ``brand name or equal'' descriptions 
that bidders are required to meet when such items are included in the 
solicitation.
    (v) The acceptance, to the extent practicable and economically 
feasible, of products and services dimensioned in the metric system of 
measurement.
    (vi) Preference, to the extent practicable and economically 
feasible, for products and services that conserve natural resources and 
protect the environment and are energy efficient.
    (b) Positive efforts shall be made by recipients to utilize small 
businesses, minority-owned firms, and women's business enterprises, 
whenever possible. Recipients of DOE awards shall take all of the 
following steps to further this goal.
    (1) Ensure that small businesses, minority-owned firms, and women's 
business enterprises are used to the fullest extent practicable.
    (2) Make information on forthcoming opportunities available and 
arrange time frames for purchases and contracts to encourage and 
facilitate participation by small businesses, minority-owned firms, and 
women's business enterprises.

[[Page 117]]

    (3) Consider in the contract process whether firms competing for 
larger contracts intend to subcontract with small businesses, minority-
owned firms, and women's business enterprises.
    (4) Encourage contracting with consortiums of small businesses, 
minority- owned firms and women's business enterprises when a contract 
is too large for one of these firms to handle individually.
    (5) Use the services and assistance, as appropriate, of such 
organizations as the Small Business Administration and the Department of 
Commerce's Minority Business Development Agency in the solicitation and 
utilization of small businesses, minority-owned firms and women's 
business enterprises.
    (c) The type of procuring instruments used (e.g., fixed price 
contracts, cost reimbursable contracts, purchase orders, and incentive 
contracts) shall be determined by the recipient but shall be appropriate 
for the particular procurement and for promoting the best interest of 
the program or project involved. The ``cost-plus-a-percentage-of-cost'' 
or ``percentage of construction cost'' methods of contracting shall not 
be used.
    (d) Contracts shall be made only with responsible contractors who 
possess the potential ability to perform successfully under the terms 
and conditions of the proposed procurement. Consideration shall be given 
to such matters as contractor integrity, record of past performance, 
financial and technical resources or accessibility to other necessary 
resources. In certain circumstances, contracts with certain parties are 
restricted by DOE's implementation, in 10 CFR part 1036, of E.O.'s 12549 
and 12689, ``Debarment and Suspension.''
    (e) Recipients shall, on request, make available for DOE, pre-award 
review and procurement documents, such as request for proposals or 
invitations for bids, independent cost estimates, etc., when any of the 
following conditions apply.
    (1) A recipient's procurement procedures or operation fails to 
comply with the procurement standards in this subpart.
    (2) The procurement is expected to exceed the small purchase 
threshold fixed at 41 U.S.C. 403 (11) (currently $25,000) and is to be 
awarded without competition or only one bid or offer is received in 
response to a solicitation.
    (3) The procurement, which is expected to exceed the small purchase 
threshold, specifies a ``brand name'' product.
    (4) The proposed award over the small purchase threshold is to be 
awarded to other than the apparent low bidder under a sealed bid 
procurement.
    (5) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the amount of the small 
purchase threshold.
    (f) By agreement of the recipient or subrecipient and the 
contractor, if consistent with the recipient's or subrecipient's usual 
business practices and applicable state and local law, any contract to 
which this section applies may provide for the payment of interest 
penalties on amounts overdue under such contract except that--
    (1) In no case shall any obligation to pay such interest penalties 
be construed to be an obligation of the Federal government, and
    (2) Any payment of such interest penalties may not be made from DOE 
funds nor be counted toward meeting a cost sharing requirement of a DOE 
award.



Sec. 600.145  Cost and price analysis.

    Some form of cost or price analysis shall be made and documented in 
the procurement files in connection with every procurement action. Price 
analysis may be accomplished in various ways, including the comparison 
of price quotations submitted, market prices and similar indicia, 
together with discounts. Cost analysis is the review and evaluation of 
each element of cost to determine reasonableness, allocability and 
allowability.



Sec. 600.146  Procurement records.

    Procurement records and files for purchases in excess of the small 
purchase threshold shall include the following at a minimum:
    (a) Basis for contractor selection,

[[Page 118]]

    (b) Justification for lack of competition when competitive bids or 
offers are not obtained, and
    (c) Basis for award cost or price.



Sec. 600.147  Contract administration.

    A system for contract administration shall be maintained to ensure 
contractor conformance with the terms, conditions and specifications of 
the contract and to ensure adequate and timely follow up of all 
purchases. Recipients shall evaluate contractor performance and 
document, as appropriate, whether contractors have met the terms, 
conditions and specifications of the contract.



Sec. 600.148  Contract provisions.

    The recipient shall include, in addition to provisions to define a 
sound and complete agreement, the following provisions in all contracts. 
The following provisions shall also be applied to subcontracts.
    (a) Contracts in excess of the small purchase threshold shall 
contain contractual provisions or conditions that allow for 
administrative, contractual, or legal remedies in instances in which a 
contractor violates or breaches the contract terms, and provide for such 
remedial actions as may be appropriate.
    (b) All contracts in excess of the small purchase threshold shall 
contain suitable provisions for termination by the recipient, including 
the manner by which termination shall be effected and the basis for 
settlement. In addition, such contracts shall describe conditions under 
which the contract may be terminated for default as well as conditions 
where the contract may be terminated because of circumstances beyond the 
control of the contractor.
    (c) Except as otherwise required by statute, an award that requires 
the contracting (or subcontracting) for construction or facility 
improvements shall provide for the recipient to follow its own 
requirements relating to bid guarantees, performance bonds, and payment 
bonds unless the construction contract or subcontract exceeds $100,000. 
For those contracts or subcontracts exceeding $100,000, DOE may accept 
the bonding policy and requirements of the recipient, provided the DOE 
has made a determination that the Federal Government's interest is 
adequately protected. If such a determination has not been made, the 
minimum requirements shall be as follows.
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder shall, upon acceptance 
of his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is one executed in 
connection with a contract to secure fulfillment of all the contractor's 
obligations under such contract.
    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by statute of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.
    (4) Where bonds are required in the situations described herein, the 
bonds shall be obtained from companies holding certificates of authority 
as acceptable sureties pursuant to 31 CFR part 223, ``Surety Companies 
Doing Business with the United States.''
    (d) All negotiated contracts (except those for less than the small 
purchase threshold) awarded by recipients shall include a provision to 
the effect that the recipient, DOE, the Comptroller General of the 
United States, or any of their duly authorized representatives, shall 
have access to any books, documents, papers and records of the 
contractor which are directly pertinent to a specific program for the 
purpose of making audits, examinations, excerpts and transcriptions.
    (e) All contracts, including small purchases, awarded by recipients 
and their contractors shall contain the procurement provisions of 
appendix A to this subpart, as applicable.

[[Page 119]]



Sec. 600.149  Resource Conservation and Recovery Act (RCRA).

    Recipients' procurements shall comply with applicable requirements 
of RCRA, as described at Sec. 600.116 of this subpart.

                           Reports and Records



Sec. 600.150  Purpose of reports and records.

    Sections 600.151 through 600.153 set forth the procedures for 
monitoring and reporting on the recipient's financial and program 
performance and the necessary standard reporting forms. They also set 
forth record retention requirements.



Sec. 600.151  Monitoring and reporting program performance.

    (a) Recipients are responsible for managing and monitoring each 
project, program, subaward, function or activity supported by the award. 
Recipients shall monitor subawards to ensure subrecipients have met the 
audit requirements as delineated in Sec. 600.126.
    (b) The terms and conditions of the award will prescribe the 
frequency with which the performance reports shall be submitted. Except 
as provided in paragraph (f) of this section, performance reports shall 
not be required more frequently than quarterly or less frequently than 
annually. Annual reports shall be due 90 calendar days after the award 
year; quarterly or semi-annual reports shall be due 30 days after the 
reporting period. DOE may require annual reports before the anniversary 
dates of multiple year awards in lieu of these requirements. The final 
performance reports are due 90 calendar days after the expiration or 
termination of the award.
    (c) If inappropriate, a final technical or performance report shall 
not be required after completion of the project.
    (d) When required, performance reports shall generally contain, for 
each award, brief information on each of the following.
    (1) A comparison of actual accomplishments with the goals and 
objectives established for the period, the findings of the investigator, 
or both. Whenever appropriate and the output of programs or projects can 
be readily quantified, such quantitative data should be related to cost 
data for computation of unit costs.
    (2) Reasons why established goals were not met, if appropriate.
    (3) Other pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.

DOE may specify in the award that the recipient provide this information 
on the Federal Assistance Program/Project Status Report (DOE F 4600.6), 
the technical reporting formats, or the Federal Assistance Management 
Summary Report. DOE may require that the Federal Assistance Management 
Summary Report be used as a performance report only when such use is 
authorized by program rule or the need for this form is explained in the 
solicitation. The requirements of this section concerning reporting 
frequency and deadlines shall apply to the Federal Assistance Management 
Summary Report. (See also Sec. 600.112 with regard to use of this form 
as part of the award application.)
    (e) Recipients shall not be required to submit more than the 
original and two copies of performance reports.
    (f) Recipients shall immediately notify DOE of developments that 
have a significant impact on the award-supported activities. Also, 
notification shall be given in the case of problems, delays, or adverse 
conditions which materially impair the ability to meet the objectives of 
the award. This notification shall include a statement of the action 
taken or contemplated, and any assistance needed to resolve the 
situation.
    (g) DOE may make site visits, as needed.
    (h) DOE shall comply with applicable clearance requirements of 5 CFR 
part 1320 when requesting performance data from recipients.
    (i) Recipients may place performance reporting requirements on 
subawards consistent with the provisions of this section and shall 
require interim reporting in accordance with Sec. 600.151(f).



Sec. 600.152  Financial reporting.

    (a) The following forms or such other forms as may be approved by 
OMB are

[[Page 120]]

authorized for obtaining financial information from recipients.
    (1) SF-269 or SF-269A, Financial Status Report.
    (i) Recipients shall use the SF-269 or SF-269A to report the status 
of funds for all nonconstruction projects or programs, except that DOE 
has the option of not requiring the SF-269 or SF-269A when the SF-270, 
Request for Advance or Reimbursement, or SF-272, Report of Federal Cash 
Transactions, is determined to provide adequate information to meet DOE 
needs. However, a final SF-269 or SF-269A shall be required at the 
completion of the project when the SF-270 is used only for advances.
    (ii) The terms and conditions of award shall prescribe whether the 
report shall be on a cash or accrual basis. DOE may require accrual 
reporting only if such reporting is required by program statute or rule. 
If the award requires accrual information and the recipient's accounting 
records are not normally kept on the accrual basis, the recipient shall 
not be required to convert its accounting system, but shall develop such 
accrual information through best estimates based on an analysis of the 
documentation on hand.
    (iii) DOE shall determine the frequency of the Financial Status 
Report for each project or program, considering the size and complexity 
of the particular project or program. However, the report shall not be 
required more frequently than quarterly or less frequently than 
annually. A final report shall be required at the completion of the 
agreement.
    (iv) DOE shall require recipients to submit the SF-269 or SF-269A 
(an original and no more than two copies) no later than 30 days after 
the end of each specified reporting period for quarterly and semi-annual 
reports, and 90 calendar days for annual and final reports. Extensions 
of reporting due dates may be approved by the DOE upon request of the 
recipient.
    (2) SF-272, Report of Federal Cash Transactions.
    (i) When funds are advanced, each recipient shall submit the SF-272 
and, when necessary, its continuation sheet, SF-272a. DOE will use this 
report to monitor cash advanced to recipients and to obtain disbursement 
information for each agreement with the recipients.
    (ii) Recipients shall forecast Federal cash requirements in the 
``Remarks'' section of the report.
    (iii) When practical and deemed necessary, DOE may require 
recipients to report in the ``Remarks'' section the amount of cash 
advances received in excess of three days. Recipients shall provide 
short narrative explanations of actions taken to reduce the excess 
balances.
    (iv) Recipients shall be required to submit not more than the 
original and two copies of the SF-272 15 calendar days following the end 
of each quarter. DOE may require a monthly report from those recipients 
receiving advances totaling $1 million or more per year.
    (v) DOE may waive the requirement for submission of the SF-272 for 
any one of the following reasons:
    (A) When monthly advances do not exceed $25,000 per recipient, 
provided that such advances are monitored through other forms contained 
in this section;
    (B) If, in the contracting officer's opinion, the recipient's 
accounting controls are adequate to minimize excessive Federal advances; 
or,
    (C) When electronic payment mechanisms provide adequate data.
    (b) When DOE needs additional information or more frequent reports, 
the following shall be observed:
    (1) When additional information is needed to comply with legislative 
requirements, DOE shall issue instructions to require recipients to 
submit such information under the ``Remarks'' section of the reports.
    (2) When DOE determines that a recipient's accounting system does 
not meet the standards in Sec. 600.121, additional pertinent 
information to further monitor awards may be obtained upon written 
notice to the recipient until such time as the system is brought up to 
standard. DOE, in obtaining this information, shall comply with report 
clearance requirements of 5 CFR part 1320.
    (3) Contracting officers are encouraged to shade out any line item 
on any report if not necessary.

[[Page 121]]

    (4) DOE may accept the identical information from the recipients in 
machine readable format or computer printouts or electronic outputs in 
lieu of prescribed formats.
    (5) Computer or electronic outputs may be provided to recipients 
when that expedites or contributes to the accuracy of reporting.



Sec. 600.153  Retention and access requirements for records.

    (a) This section sets forth requirements for record retention and 
access to records for awards to recipients. DOE shall not impose any 
other record retention or access requirements upon recipients, unless 
such requirements are established in program regulations.
    (b) Financial records, supporting documents, statistical records, 
and all other records pertinent to an award shall be retained for a 
period of three years from the date of submission of the final 
expenditure report or, for awards that are renewed quarterly or 
annually, from the date of the submission of the quarterly or annual 
financial report, as authorized by DOE. The only exceptions are the 
following:
    (1) If any litigation, claim, or audit is started before the 
expiration of the 3-year period, the records shall be retained until all 
litigation, claims or audit findings involving the records have been 
resolved and final action taken.
    (2) Records for real property and equipment acquired with Federal 
funds shall be retained for 3 years after final disposition.
    (3) When records are transferred to or maintained by DOE, the 3-year 
retention requirement is not applicable to the recipient.
    (4) Indirect cost rate proposals, cost allocations plans, and 
related records, for which retention requirements are specified in Sec. 
600.153(g).
    (c) Copies of original records may be substituted for the original 
records if authorized by DOE.
    (d) DOE shall request transfer of certain records to its custody 
from recipients when it determines that the records possess long term 
retention value. However, in order to avoid duplicate recordkeeping, DOE 
may make arrangements for recipients to retain any records that are 
continuously needed for joint use.
    (e) DOE, the Inspector General, Comptroller General of the United 
States, or any of their duly authorized representatives, have the right 
of timely and unrestricted access to any books, documents, papers, or 
other records of recipients that are pertinent to the awards, in order 
to make audits, examinations, excerpts, transcripts and copies of such 
documents. This right also includes timely and reasonable access to a 
recipient's personnel for the purpose of interview and discussion 
related to such documents. The rights of access in this paragraph are 
not limited to the required retention period, but shall last as long as 
records are retained.
    (f) Unless required by statute, DOE shall place no restrictions on 
recipients that limit public access to the records of recipients that 
are pertinent to an award, except when DOE can demonstrate that such 
records shall be kept confidential and would have been exempted from 
disclosure pursuant to the Freedom of Information Act (5 U.S.C. 552) if 
the records had belonged to DOE.
    (g) Paragraphs (g)(1) and (g)(2) of this section apply to the 
following types of documents, and their supporting records: indirect 
cost rate computations or proposals, cost allocation plans, and any 
similar accounting computations of the rate at which a particular group 
of costs is chargeable (such as computer usage chargeback rates or 
composite fringe benefit rates).
    (1) If submitted for negotiation. If the recipient submits to the 
Federal agency responsible for negotiating the recipient's indirect cost 
rate or the subrecipient submits to the recipient the proposal, plan, or 
other computation to form the basis for negotiation of the rate, then 
the 3-year retention period for its supporting records starts on the 
date of such submission.
    (2) If not submitted for negotiation. If the recipient is not 
required to submit to the cognizant Federal agency or the subrecipient 
is not required to submit to the recipient the proposal, plan, or other 
computation for negotiation purposes, then the 3-year retention period

[[Page 122]]

for the proposal, plan, or other computation and its supporting records 
starts at the end of the fiscal year (or other accounting period) 
covered by the proposal, plan, or other computation.
    (h) If, by the terms and conditions of the award, the recipient or 
subrecipient--
    (1) Is accountable for program income earned or received after the 
end of the project period or after the termination of an award or 
subaward, or
    (2) If program income earned during the project period is required 
to be applied to costs incurred after the end of the project period or 
after termination of an award or subaward, the record retention period 
shall start on the last day of the recipient's or subrecipient's fiscal 
year in which such income was earned or received or such costs were 
incurred. All other program income records shall be retained in 
accordance with Sec. 600.153(b).

                       Termination and Enforcement



Sec. 600.160  Purpose of termination and enforcement.

    Sections 600.161 and 600.162 set forth uniform suspension, 
termination and enforcement procedures.



Sec. 600.161  Termination.

    (a) Awards may be terminated in whole or in part only if paragraph 
(a) (1), (2) or (3) of this section apply.
    (1) By DOE, if a recipient materially fails to comply with the terms 
and conditions of an award.
    (2) By DOE with the consent of the recipient, in which case the two 
parties shall agree upon the termination conditions, including the 
effective date and, in the case of partial termination, the portion to 
be terminated.
    (3) By the recipient upon sending to DOE written notification 
setting forth the reasons for such termination, the effective date, and, 
in the case of partial termination, the portion to be terminated. 
However, if DOE determines in the case of partial termination that the 
reduced or modified portion of the award will not accomplish the 
purposes for which the award was made, it may terminate the award in its 
entirety under either paragraph (a) (1) or (2) of this section.
    (b) If costs are allowed under an award, the responsibilities of the 
recipient referred to in Sec. 600.171(a), including those for property 
management as applicable, shall be considered in the termination of the 
award, and provision shall be made for continuing responsibilities of 
the recipient after termination, as appropriate.



Sec. 600.162  Enforcement.

    (a) Remedies for noncompliance. If a recipient materially fails to 
comply with the terms and conditions of an award, whether stated in a 
Federal statute, regulation, assurance, application, or notice of award, 
DOE may, in addition to imposing any of the special conditions outlined 
in Sec. 600.114, take one or more of the following actions, as 
appropriate in the circumstances.
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the recipient or more severe enforcement action by DOE.
    (2) Disallow (that is, deny both use of funds and any applicable 
matching credit for) all or part of the cost of the activity or action 
not in compliance.
    (3) Wholly or partly suspend or terminate the current award.
    (4) Withhold further awards for the project or program.
    (5) Take other remedies that may be legally available.
    (b) Hearings and appeals. In taking an enforcement action, DOE shall 
provide the recipient an opportunity for hearing, appeal, or other 
administrative proceeding to which the recipient is entitled under any 
statute or regulation applicable to the action involved.
    (c) Effects of suspension and termination. Costs of a recipient 
resulting from obligations incurred by the recipient during a suspension 
or after termination of an award are not allowable unless the awarding 
agency expressly authorizes them in the notice of suspension or 
termination or subsequently. Other recipient costs during suspension or 
after termination which are necessary and not reasonably avoidable are 
allowable if paragraph (c) (1) and (2) of this section apply.

[[Page 123]]

    (1) The costs result from obligations which were properly incurred 
by the recipient before the effective date of suspension or termination, 
are not in anticipation of it, and in the case of a termination, are 
noncancellable.
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude a recipient from being subject to debarment 
and suspension under 10 CFR part 1036.

                      After-the-Award Requirements



Sec. 600.170  Purpose.

    Sections 600.171 through 600.173 contain closeout procedures and 
other procedures for subsequent disallowances and adjustments.



Sec. 600.171  Closeout procedures.

    (a) Recipients shall submit, within 90 calendar days after the date 
of completion of the award, all financial, performance, and other 
reports as required by the terms and conditions of the award. DOE may 
approve extensions when requested by the recipient.
    (b) Unless DOE authorizes an extension, a recipient shall liquidate 
all obligations incurred under the award not later than 90 calendar days 
after the funding period or the date of completion as specified in the 
terms and conditions of the award or in agency implementing 
instructions.
    (c) DOE shall make prompt payments to a recipient for allowable 
reimbursable costs under the award being closed out.
    (d) The recipient shall promptly refund any balances of unobligated 
cash that DOE has advanced or paid and that is not authorized to be 
retained by the recipient for use in other projects. OMB Circular A-129 
governs unreturned amounts that become delinquent debts.
    (e) When authorized by the terms and conditions of the award, DOE 
shall make a settlement for any upward or downward adjustments to the 
Federal share of costs after closeout reports are received.
    (f) The recipient shall account for any real and personal property 
acquired with Federal funds or received from the Federal Government in 
accordance with Sec. Sec. 600.131 through 600.137.
    (g) In the event a final audit has not been performed prior to the 
closeout of an award, DOE shall retain the right to recover an 
appropriate amount after fully considering the recommendations on 
disallowed costs resulting from the final audit.



Sec. 600.172  Subsequent adjustments and continuing responsibilities.

    (a) The closeout of an award does not affect any of the following.
    (1) The right of DOE to disallow costs and recover funds on the 
basis of a later audit or other review.
    (2) The obligation of the recipient to return any funds due as a 
result of later refunds, corrections, or other transactions.
    (3) Audit requirements in Sec. 600.126.
    (4) Property management requirements in Sec. Sec. 600.131 through 
600.137.
    (5) Records retention as required in Sec. 600.153.
    (b) After closeout of an award, a relationship created under an 
award may be modified or ended in whole or in part with the consent of 
DOE and the recipient, provided the responsibilities of the recipient 
referred to in paragraph 600.173(a), including those for property 
management as applicable, are considered and provisions made for 
continuing responsibilities of the recipient, as appropriate.



Sec. 600.173  Collection of amounts due.

    (a) Any funds paid to a recipient in excess of the amount to which 
the recipient is finally determined to be entitled under the terms and 
conditions of the award constitute a debt to the Federal Government. If 
not paid within a reasonable period after the demand for payment, DOE 
may reduce the debt by paragraph (a) (1), (2) or (3) of this section.
    (1) Making an administrative offset against other requests for 
reimbursements.
    (2) Withholding advance payments otherwise due to the recipient.

[[Page 124]]

    (3) Taking other action permitted by statute.
    (b) Except as otherwise provided by law, DOE shall charge interest 
on an overdue debt in accordance with 4 CFR Chapter II, ``Federal Claims 
Collection Standards.''

                          Additional Provisions



      Sec. Appendix A to Subpart B of Part 600--Contract Provisions

    All contracts, awarded by a recipient including small purchases, 
shall contain the following provisions as applicable:
    1. Equal Employment Opportunity--All contracts shall contain a 
provision requiring compliance with E.O. 11246, ``Equal Employment 
Opportunity,'' as amended by E.O. 11375, ``Amending Executive Order 
11246 Relating to Equal Employment Opportunity,'' and as supplemented by 
regulations at 41 CFR part 60, ``Office of Federal Contract Compliance 
Programs, Equal Employment Opportunity, Department of Labor.''
    2. Copeland ``Anti-Kickback'' Act (18 U.S.C. 874 and 40 U.S.C. 
276c)--All contracts and subgrants in excess of $2000 for construction 
or repair awarded by recipients and subrecipients shall include a 
provision for compliance with the Copeland ``Anti-Kickback'' Act (18 
U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR 
part 3, ``Contractors and Subcontractors on Public Building or Public 
Work Financed in Whole or in part by Loans or Grants from the United 
States''). The Act provides that each contractor or subrecipient shall 
be prohibited from inducing, by any means, any person employed in the 
construction, completion, or repair of public work, to give up any part 
of the compensation to which he is otherwise entitled. The recipient 
shall report all suspected or reported violations to the Federal 
awarding agency.
    3. Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7)--When 
required by Federal program legislation, all construction contracts 
awarded by the recipients and subrecipients of more than $2000 shall 
include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 
276a to a-7) and as supplemented by Department of Labor regulations (29 
CFR part 5, ``Labor Standards Provisions Applicable to Contracts 
Governing Federally Financed and Assisted Construction''). Under this 
Act, contractors shall be required to pay wages to laborers and 
mechanics at a rate not less than the minimum wages specified in a wage 
determination made by the Secretary of Labor. In addition, contractors 
shall be required to pay wages not less than once a week. The recipient 
shall place a copy of the current prevailing wage determination issued 
by the Department of Labor in each solicitation and the award of a 
contract shall be conditioned upon the acceptance of the wage 
determination. The recipient shall report all suspected or reported 
violations to the Federal awarding agency.
    4. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
333)--Where applicable, all contracts awarded by recipients in excess of 
$2000 for construction contracts and in excess of $2500 for other 
contracts that involve the employment of mechanics or laborers shall 
include a provision for compliance with sections 102 and 107 of the 
Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), as 
supplemented by Department of Labor regulations (29 CFR part 5). Under 
section 102 of the Act, each contractor shall be required to compute the 
wages of every mechanic and laborer on the basis of a standard work week 
of 40 hours. Work in excess of the standard work week is permissible 
provided that the worker is compensated at a rate of not less than 1\1/
2\ times the basic rate of pay for all hours worked in excess of 40 
hours in the work week. Section 107 of the Act is applicable to 
construction work and provides that no laborer or mechanic shall be 
required to work in surroundings or under working conditions which are 
unsanitary, hazardous or dangerous. These requirements do not apply to 
the purchases of supplies or materials or articles ordinarily available 
on the open market, or contracts for transportation or transmission of 
intelligence.
    5. Rights to Inventions Made Under a Contract or Agreement--
Contracts or agreements for the performance of experimental, 
developmental, or research work shall provide for the rights of the 
Federal Government and the recipient in any resulting invention in 
accordance with 37 CFR part 401, ``Rights to Inventions Made by 
Nonprofit Organizations and Small Business Firms Under Government 
Grants, Contracts and Cooperative Agreements,'' and any implementing 
regulations issued by the awarding agency.
    6. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water 
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended--Contracts 
and subgrants of amounts in excess of $100,000 shall contain a provision 
that requires the recipient to agree to comply with all applicable 
standards, orders or regulations issued pursuant to the Clean Air Act 
(42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as 
amended (33 U.S.C. 1251 et seq.). Violations shall be reported to the 
Federal awarding agency and the Regional Office of the Environmental 
Protection Agency (EPA).
    7. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)-- Contractors who 
apply or bid for an award of $100,000 or more shall file the required 
certification. Each tier certifies to the tier above that it will not 
and has not used Federal appropriated funds to pay any

[[Page 125]]

person or organization for influencing or attempting to influence an 
officer or employee of any agency, a member of Congress, officer or 
employee of Congress, or an employee of a member of Congress in 
connection with obtaining any Federal contract, grant or any other award 
covered by 31 U.S.C. 1352. Each tier shall also disclose any lobbying 
with non-Federal funds that takes place in connection with obtaining any 
Federal award. Such disclosures are forwarded from tier to tier up to 
the recipient.
    8. Debarment and Suspension (E.O.s 12549 and 12689)-- Contract 
awards that exceed the small purchase threshold and certain other 
contract awards shall not be made to parties listed on the 
nonprocurement portion of the General Services Administration's List of 
parties Excluded from Federal Procurement or Nonprocurement Programs in 
accordance with E.O.s 12549 and 12689, ``Debarment and Suspension.'' 
This list contains the names of parties debarred, suspended, or 
otherwise excluded by agencies, and contractors declared ineligible 
under statutory or regulatory authority other than E.O. 12549. 
Contractors with awards that exceed the small purchase threshold shall 
provide the required certification regarding its exclusion status and 
that of its principals.



Subpart C_Uniform Administrative Requirements for Grants and Cooperative 
                Agreements to State and Local Governments

    Source: 53 FR 8045, 8087, Mar. 11, 1988, unless otherwise noted. 
Redesignated at 59 FR 53264, Oct. 21, 1994.

                                 General



Sec. 600.200  Purpose and scope of this subpart.

    This subpart establishes uniform administrative rules for Federal 
grants and cooperative agreements and subawards to State, local and 
Indian tribal governments.



Sec. 600.201  Scope of Sec. Sec. 600.200 through 600.205.

    This section contains general rules pertaining to this part and 
procedures for control of exceptions from this subpart.



Sec. 600.202  Definitions.

    As used in this part:
    Accrued expenditures mean the charges incurred by the grantee during 
a given period requiring the provision of funds for: (1) Goods and other 
tangible property received; (2) services performed by employees, 
contractors, subgrantees, subcontractors, and other payees; and (3) 
other amounts becoming owed under programs for which no current services 
or performance is required, such as annuities, insurance claims, and 
other benefit payments.
    Accrued income means the sum of: (1) Earnings during a given period 
from services performed by the grantee and goods and other tangible 
property delivered to purchasers, and (2) amounts becoming owed to the 
grantee for which no current services or performance is required by the 
grantee.
    Acquisition cost of an item of purchased equipment means the net 
invoice unit price of the property including the cost of modifications, 
attachments, accessories, or auxiliary apparatus necessary to make the 
property usable for the purpose for which it was acquired. Other charges 
such as the cost of installation, transportation, taxes, duty or 
protective in-transit insurance, shall be included or excluded from the 
unit acquisition cost in accordance with the grantee's regular 
accounting practices.
    Administrative requirements mean those matters common to grants in 
general, such as financial management, kinds and frequency of reports, 
and retention of records. These are distinguished from programmatic 
requirements, which concern matters that can be treated only on a 
program-by-program or grant-by-grant basis, such as kinds of activities 
that can be supported by grants under a particular program.
    Awarding agency means (1) with respect to a grant, the Federal 
agency, and (2) with respect to a subgrant, the party that awarded the 
subgrant.
    Cash contributions means the grantee's cash outlay, including the 
outlay of money contributed to the grantee or subgrantee by other public 
agencies and institutions, and private organizations and individuals. 
When authorized by Federal legislation, Federal funds received from 
other assistance agreements may be considered as grantee or subgrantee 
cash contributions.

[[Page 126]]

    Contract means (except as used in the definitions for grant and 
subgrant in this section and except where qualified by Federal) a 
procurement contract under a grant or subgrant, and means a procurement 
subcontract under a contract.
    Cost sharing or matching means the value of the third party in-kind 
contributions and the portion of the costs of a federally assisted 
project or program not borne by the Federal Government.
    Cost-type contract means a contract or subcontract under a grant in 
which the contractor or subcontractor is paid on the basis of the costs 
it incurs, with or without a fee.
    Equipment means tangible, nonexpendable, personal property having a 
useful life of more than one year and an acquisition cost of $5,000 or 
more per unit. A grantee may use its own definition of equipment 
provided that such definition would at least include all equipment 
defined above.
    Expenditure report means: (1) For nonconstruction grants, the SF-269 
``Financial Status Report'' (or other equivalent report); (2) for 
construction grants, the SF-271 ``Outlay Report and Request for 
Reimbursement'' (or other equivalent report).
    Federally recognized Indian tribal government means the governing 
body or a governmental agency of any Indian tribe, band, nation, or 
other organized group or community (including any Native village as 
defined in section 3 of the Alaska Native Claims Settlement Act, 85 Stat 
688) certified by the Secretary of the Interior as eligible for the 
special programs and services provided by him through the Bureau of 
Indian Affairs.
    Government means a State or local government or a federally 
recognized Indian tribal government.
    Grant means an award of financial assistance, including cooperative 
agreements, in the form of money, or property in lieu of money, by the 
Federal Government to an eligible grantee. The term does not include 
technical assistance which provides services instead of money, or other 
assistance in the form of revenue sharing, loans, loan guarantees, 
interest subsidies, insurance, or direct appropriations. Also, the term 
does not include assistance, such as a fellowship or other lump sum 
award, which the grantee is not required to account for.
    Grantee means the government to which a grant is awarded and which 
is accountable for the use of the funds provided. The grantee is the 
entire legal entity even if only a particular component of the entity is 
designated in the grant award document.
    Local government means a county, municipality, city, town, township, 
local public authority (including any public and Indian housing agency 
under the United States Housing Act of 1937) school district, special 
district, intrastate district, council of governments (whether or not 
incorporated as a nonprofit corporation under state law), any other 
regional or interstate government entity, or any agency or 
instrumentality of a local government.
    Obligations means the amounts of orders placed, contracts and 
subgrants awarded, goods and services received, and similar transactions 
during a given period that will require payment by the grantee during 
the same or a future period.
    OMB means the United States Office of Management and Budget.
    Outlays (expenditures) mean charges made to the project or program. 
They may be reported on a cash or accrual basis. For reports prepared on 
a cash basis, outlays are the sum of actual cash disbursement for direct 
charges for goods and services, the amount of indirect expense incurred, 
the value of in-kind contributions applied, and the amount of cash 
advances and payments made to contractors and subgrantees. For reports 
prepared on an accrued expenditure basis, outlays are the sum of actual 
cash disbursements, the amount of indirect expense incurred, the value 
of inkind contributions applied, and the new increase (or decrease) in 
the amounts owed by the grantee for goods and other property received, 
for services performed by employees, contractors, subgrantees, 
subcontractors, and other payees, and other amounts becoming owed under 
programs for which no current services or performance are required, such 
as annuities, insurance claims, and other benefit payments.

[[Page 127]]

    Percentage of completion method refers to a system under which 
payments are made for construction work according to the percentage of 
completion of the work, rather than to the grantee's cost incurred.
    Prior approval means documentation evidencing consent prior to 
incurring specific cost. For the Department of Energy, this must be 
signed by a Contracting Officer.
    Real property means land, including land improvements, structures 
and appurtenances thereto, excluding movable machinery and equipment.
    Share, when referring to the awarding agency's portion of real 
property, equipment or supplies, means the same percentage as the 
awarding agency's portion of the acquiring party's total costs under the 
grant to which the acquisition costs under the grant to which the 
acquisition cost of the property was charged. Only costs are to be 
counted--not the value of third-party in-kind contributions.
    State means any of the several States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency or instrumentality of a 
State exclusive of local governments. The term does not include any 
public and Indian housing agency under United States Housing Act of 
1937.
    Subgrant means an award of financial assistance in the form of 
money, or property in lieu of money, made under a grant by a grantee to 
an eligible subgrantee. The term includes financial assistance when 
provided by contractual legal agreement, but does not include 
procurement purchases, nor does it include any form of assistance which 
is excluded from the definition of grant in this subpart.
    Subgrantee means the government or other legal entity to which a 
subgrant is awarded and which is accountable to the grantee for the use 
of the funds provided.
    Supplies means all tangible personal property other than 
``equipment'' as defined in this subpart.
    Suspension means depending on the context, either (1) temporary 
withdrawal of the authority to obligate grant funds pending corrective 
action by the grantee or subgrantee or a decision to terminate the 
grant, or (2) an action taken by a suspending official in accordance 
with agency regulations implementing E.O. 12549 to immediately exclude a 
person from participating in grant transactions for a period, pending 
completion of an investigation and such legal or debarment proceedings 
as may ensue.
    Termination means permanent withdrawal of the authority to obligate 
previously-awarded grant funds before that authority would otherwise 
expire. It also means the voluntary relinquishment of that authority by 
the grantee or subgrantee. Termination does not include: (1) Withdrawal 
of funds awarded on the basis of the grantee's underestimate of the 
unobligated balance in a prior period; (2) withdrawal of the unobligated 
balance as of the expiration of a grant; (3) refusal to extend a grant 
or award additional funds, to make a competing or noncompeting 
continuation, renewal, extension, or supplemental award; or (4) voiding 
of a grant upon determination that the award was obtained fraudulently, 
or was otherwise illegal or invalid from inception.
    Terms of a grant or subgrant mean all requirements of the grant or 
subgrant, whether in statute, regulations, or the award document.
    Third party in-kind contributions mean property or services which 
benefit a federally assisted project or program and which are 
contributed by non-Federal third parties without charge to the grantee, 
or a cost-type contractor under the grant agreement.
    Unliquidated obligations for reports prepared on a cash basis mean 
the amount of obligations incurred by the grantee that has not been 
paid. For reports prepared on an accrued expenditure basis, they 
represent the amount of obligations incurred by the grantee for which an 
outlay has not been recorded.
    Unobligated balance means the portion of the funds authorized by the 
Federal agency that has not been obligated by the grantee and is 
determined

[[Page 128]]

by deducting the cumulative obligations from the cumulative funds 
authorized.

[53 FR 8087, Mar. 11, 1988, as amended at 53 FR 8047, Mar. 11, 1988; 54 
FR 23960, June 5, 1989]



Sec. 600.203  Applicability.

    (a) General. Sections 600.400 through 600.452 of this subpart apply 
to all grants and subgrants to governments, except where inconsistent 
with Federal statutes or with regulations authorized in accordance with 
the exception provision of Sec. 600.405, or:
    (1) Grants and subgrants to State and local institutions of higher 
education or State and local hospitals.
    (2) The block grants authorized by the Omnibus Budget Reconciliation 
Act of 1981 (Community Services; Preventive Health and Health Services; 
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child 
Health Services; Social Services; Low-Income Home Energy Assistance; 
States' Program of Community Development Block Grants for Small Cities; 
and Elementary and Secondary Education other than programs administered 
by the Secretary of Education under Title V, Subtitle D, Chapter 2, 
Section 583--the Secretary's discretionary grant program) and Titles I-
III of the Job Training Partnership Act of 1982 and under the Public 
Health Services Act (Section 1921), Alcohol and Drug Abuse Treatment and 
Rehabilitation Block Grant and part C of Title V, Mental Health Service 
for the Homeless Block Grant).
    (3) Entitlement grants to carry out the following programs of the 
Social Security Act:
    (i) Aid to Needy Families with Dependent Children (Title IV-A of the 
Act, not including the Work Incentive Program (WIN) authorized by 
section 402(a)19(G); HHS grants for WIN are subject to this subpart);
    (ii) Child Support Enforcement and Establishment of Paternity (Title 
IV-D of the Act);
    (iii) Foster Care and Adoption Assistance (Title IV-E of the Act);
    (iv) Aid to the Aged, Blind, and Disabled (Titles I, X, XIV, and 
XVI-AABD of the Act); and
    (v) Medical Assistance (Medicaid) (Title XIX of the Act) not 
including the State Medicaid Fraud Control program authorized by section 
1903(a)(6)(B).
    (4) Entitlement grants under the following programs of The National 
School Lunch Act:
    (i) School Lunch (section 4 of the Act),
    (ii) Commodity Assistance (section 6 of the Act),
    (iii) Special Meal Assistance (section 11 of the Act),
    (iv) Summer Food Service for Children (section 13 of the Act), and
    (v) Child Care Food Program (section 17 of the Act).
    (5) Entitlement grants under the following programs of The Child 
Nutrition Act of 1966:
    (i) Special Milk (section 3 of the Act), and
    (ii) School Breakfast (section 4 of the Act).
    (6) Entitlement grants for State Administrative expenses under The 
Food Stamp Act of 1977 (section 16 of the Act).
    (7) A grant for an experimental, pilot, or demonstration project 
that is also supported by a grant listed in paragraph (a)(3) of this 
section;
    (8) Grant funds awarded under subsection 412(e) of the Immigration 
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the 
Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat. 
1809), for cash assistance, medical assistance, and supplemental 
security income benefits to refugees and entrants and the administrative 
costs of providing the assistance and benefits;
    (9) Grants to local education agencies under 20 U.S.C. 236 through 
241-1(a), and 242 through 244 (portions of the Impact Aid program), 
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for 
Handicapped Children); and
    (10) Payments under the Veterans Administration's State Home Per 
Diem Program (38 U.S.C. 641(a)).
    (b) Entitlement programs. Entitlement programs enumerated above in 
Sec. 600.403(a) (3) through (8) are subject to subpart E.

[53 FR 8045, 8087, Mar. 11, 1988, as amended at 54 FR 23960, June 5, 
1989]

[[Page 129]]



Sec. 600.204  Effect on other issuances.

    All other grants administration provisions of codified program 
regulations, program manuals, handbooks and other nonregulatory 
materials which are inconsistent with this subpart are superseded, 
except to the extent they are required by statute, or authorized in 
accordance with the exception provision in Sec. 600.205.

[53 FR 8045, 8087, Mar. 11, 1988. Redesignated at 59 FR 53264, Oct. 21, 
1994, as amended at 61 FR 7165, Feb. 26, 1996]



Sec. 600.205  Additions and exceptions.

    (a) For classes of grants and grantees subject to this subpart, 
Federal agencies may not impose additional administrative requirements 
except in codified regulations published in the Federal Register.
    (b) Exceptions for classes of grants or grantees may be authorized 
only by OMB.
    (c) Exceptions on a case-by-case basis and for subgrantees may be 
authorized by the affected Federal agencies.
    (d) The DOE procedural requirements for requesting additions and 
exceptions are specified in Sec. 600.4.

[53 FR 8087, Mar. 11, 1988, as amended at 53 FR 8047, Mar. 11, 1988]

                         Pre-Award Requirements



Sec. 600.210  Forms for applying for grants.

    (a) Scope. (1) This section prescribes forms and instructions to be 
used by governmental organizations (except hospitals and institutions of 
higher education operated by a government) in applying for grants. This 
section is not applicable, however, to formula grant programs which do 
not require applicants to apply for funds on a project basis.
    (2) This section applies only to applications to Federal agencies 
for grants, and is not required to be applied by grantees in dealing 
with applicants for subgrants. However, grantees are encouraged to avoid 
more detailed or burdensome application requirements for subgrants.
    (b) Authorized forms and instructions for governmental 
organizations. (1) In applying for grants, applicants shall only use 
standard application forms or those prescribed by the granting agency 
with the approval of OMB under the Paperwork Reduction Act of 1980.
    (2) Applicants are not required to submit more than the original and 
two copies of preapplications or applications.
    (3) Applicants must follow all applicable instructions that bear OMB 
clearance numbers. Federal agencies may specify and describe the 
programs, functions, or activities that will be used to plan, budget, 
and evaluate the work under a grant. Other supplementary instructions 
may be issued only with the approval of OMB to the extent required under 
the Paperwork Reduction Act of 1980. For any standard form, except the 
SF-424 facesheet, Federal agencies may shade out or instruct the 
applicant to disregard any line item that is not needed.
    (4) When a grantee applies for additional funding (such as a 
continuation or supplemental award) or amends a previously submitted 
application, only the affected pages need be submitted. Previously 
submitted pages with information that is still current need not be 
resubmitted.



Sec. 600.211  State plans.

    (a) Scope. The statutes for some programs require States to submit 
plans before receiving grants. Under regulations implementing Executive 
Order 12372, ``Intergovernmental Review of Federal Programs,'' States 
are allowed to simplify, consolidate and substitute plans. This section 
contains additional provisions for plans that are subject to regulations 
implementing the Executive order.
    (b) Requirements. A State need meet only Federal administrative or 
programmatic requirements for a plan that are in statutes or codified 
regulations.
    (c) Assurances. In each plan the State will include an assurance 
that the State shall comply with all applicable Federal statutes and 
regulations in effect with respect to the periods for which it receives 
grant funding. For this assurance and other assurances required in the 
plan, the State may:

[[Page 130]]

    (1) Cite by number the statutory or regulatory provisions requiring 
the assurances and affirm that it gives the assurances required by those 
provisions,
    (2) Repeat the assurance language in the statutes or regulations, or
    (3) Develop its own language to the extent permitted by law.
    (d) Amendments. A State will amend a plan whenever necessary to 
reflect: (1) New or revised Federal statutes or regulations or (2) a 
material change in any State law, organization, policy, or State agency 
operation. The State will obtain approval for the amendment and its 
effective date but need submit for approval only the amended portions of 
the plan.



Sec. 600.212  Special grant or subgrant conditions for ``high-risk'' recipients.

    (a) A grantee or subgrantee may be considered ``high risk'' if an 
awarding agency determines that a grantee or subgrantee:
    (1) Has a history of unsatisfactory performance, or
    (2) Is not financially stable, or
    (3) Has a management system which does not meet the management 
standards set forth in this subpart, or
    (4) Has not conformed to terms and conditions of previous awards, or
    (5) Is otherwise not responsible; and if the awarding agency 
determines that an award will be made, special conditions and/or 
restrictions shall correspond to the high risk condition and shall be 
included in the award.
    (b) Special conditions or restrictions may include:
    (1) Payment on a reimbursement basis;
    (2) Withholding authority to proceed to the next phase until receipt 
of evidence of acceptable performance within a given funding period;
    (3) Requiring additional, more detailed financial reports;
    (4) Additional project monitoring;
    (5) Requiring the grantee or subgrantee to obtain technical or 
management assistance; or
    (6) Establishing additional prior approvals.
    (c) If an awarding agency decides to impose such conditions, the 
awarding official will notify the grantee or subgrantee as early as 
possible, in writing, of:
    (1) The nature of the special conditions/restrictions;
    (2) The reason(s) for imposing them;
    (3) The corrective actions which must be taken before they will be 
removed and the time allowed for completing the corrective actions and
    (4) The method of requesting reconsideration of the conditions/
restrictions imposed.

[53 FR 8045, 8087, Mar. 11, 1988, as amended at 59 FR 53265, Oct. 21, 
1994]

                         Post-Award Requirements

                        Financial Administration



Sec. 600.220  Standards for financial management systems.

    (a) A State must expend and account for grant funds in accordance 
with State laws and procedures for expending and accounting for its own 
funds. Fiscal control and accounting procedures of the State, as well as 
its subgrantees and cost-type contractors, must be sufficient to--
    (1) Permit preparation of reports required by this part and the 
statutes authorizing the grant, and
    (2) Permit the tracing of funds to a level of expenditures adequate 
to establish that such funds have not been used in violation of the 
restrictions and prohibitions of applicable statutes.
    (b) The financial management systems of other grantees and 
subgrantees must meet the following standards:
    (1) Financial reporting. Accurate, current, and complete disclosure 
of the financial results of financially assisted activities must be made 
in accordance with the financial reporting requirements of the grant or 
subgrant.
    (2) Accounting records. Grantees and subgrantees must maintain 
records which adequately identify the source and application of funds 
provided for financially-assisted activities. These records must contain 
information pertaining to grant or subgrant awards and authorizations, 
obligations, unobligated balances, assets, liabilities, outlays or 
expenditures, and income.
    (3) Internal control. Effective control and accountability must be 
maintained

[[Page 131]]

for all grant and subgrant cash, real and personal property, and other 
assets. Grantees and subgrantees must adequately safeguard all such 
property and must assure that it is used solely for authorized purposes.
    (4) Budget control. Actual expenditures or outlays must be compared 
with budgeted amounts for each grant or subgrant. Financial information 
must be related to performance or productivity data, including the 
development of unit cost information whenever appropriate or 
specifically required in the grant or subgrant agreement. If unit cost 
data are required, estimates based on available documentation will be 
accepted whenever possible.
    (5) Allowable cost. Applicable OMB cost principles, agency program 
regulations, and the terms of grant and subgrant agreements will be 
followed in determining the reasonableness, allowability, and 
allocability of costs.
    (6) Source documentation. Accounting records must be supported by 
such source documentation as cancelled checks, paid bills, payrolls, 
time and attendance records, contract and subgrant award documents, etc.
    (7) Cash management. Procedures for minimizing the time elapsing 
between the transfer of funds from the U.S. Treasury and disbursement by 
grantees and subgrantees must be followed whenever advance payment 
procedures are used. Grantees must establish reasonable procedures to 
ensure the receipt of reports on subgrantees' cash balances and cash 
disbursements in sufficient time to enable them to prepare complete and 
accurate cash transactions reports to the awarding agency. When advances 
are made by letter-of-credit or electronic transfer of funds methods, 
the grantee must make drawdowns as close as possible to the time of 
making disbursements. Grantees must monitor cash drawdowns by their 
subgrantees to assure that they conform substantially to the same 
standards of timing and amount as apply to advances to the grantees.
    (c) An awarding agency may review the adequacy of the financial 
management system of any applicant for financial assistance as part of a 
preaward review or at any time subsequent to award.

[53 FR 8045, 8087, Mar. 11, 1988, as amended at 57 FR 5, Jan. 2, 1992]



Sec. 600.221  Payment.

    (a) Scope. This section prescribes the basic standard and the 
methods under which a Federal agency will make payments to grantees, and 
grantees will make payments to subgrantees and contractors.
    (b) Basic standard. Methods and procedures for payment shall 
minimize the time elapsing between the transfer of funds and 
disbursement by the grantee or subgrantee, in accordance with Treasury 
regulations at 31 CFR part 205.
    (c) Advances. Grantees and subgrantees shall be paid in advance, 
provided they maintain or demonstrate the willingness and ability to 
maintain procedures to minimize the time elapsing between the transfer 
of the funds and their disbursement by the grantee or subgrantee.
    (d) Reimbursement. Reimbursement shall be the preferred method when 
the requirements in paragraph (c) of this section are not met. Grantees 
and subgrantees may also be paid by reimbursement for any construction 
grant. Except as otherwise specified in regulation, Federal agencies 
shall not use the percentage of completion method to pay construction 
grants. The grantee or subgrantee may use that method to pay its 
construction contractor, and if it does, the awarding agency's payments 
to the grantee or subgrantee will be based on the grantee's or 
subgrantee's actual rate of disbursement.
    (e) Working capital advances. If a grantee cannot meet the criteria 
for advance payments described in paragraph (c) of this section, and the 
Federal agency has determined that reimbursement is not feasible because 
the grantee lacks sufficient working capital, the awarding agency may 
provide cash or a working capital advance basis. Under this procedure 
the awarding agency shall advance cash to the grantee to cover its 
estimated disbursement needs for an initial period generally geared to 
the grantee's disbursing cycle. Thereafter, the awarding agency shall 
reimburse the grantee for

[[Page 132]]

its actual cash disbursements. The working capital advance method of 
payment shall not be used by grantees or subgrantees if the reason for 
using such method is the unwillingness or inability of the grantee to 
provide timely advances to the subgrantee to meet the subgrantee's 
actual cash disbursements.
    (f) Effect of program income, refunds, and audit recoveries on 
payment. (1) Grantees and subgrantees shall disburse repayments to and 
interest earned on a revolving fund before requesting additional cash 
payments for the same activity.
    (2) Except as provided in paragraph (f)(1) of this section, grantees 
and subgrantees shall disburse program income, rebates, refunds, 
contract settlements, audit recoveries and interest earned on such funds 
before requesting additional cash payments.
    (g) Withholding payments. (1) Unless otherwise required by Federal 
statute, awarding agencies shall not withhold payments for proper 
charges incurred by grantees or subgrantees unless--
    (i) The grantee or subgrantee has failed to comply with grant award 
conditions or
    (ii) The grantee or subgrantee is indebted to the United States.
    (2) Cash withheld for failure to comply with grant award condition, 
but without suspension of the grant, shall be released to the grantee 
upon subsequent compliance. When a grant is suspended, payment 
adjustments will be made in accordance with Sec. 600.243(c).
    (3) A Federal agency shall not make payment to grantees for amounts 
that are withheld by grantees or subgrantees from payment to contractors 
to assure satisfactory completion of work. Payments shall be made by the 
Federal agency when the grantees or subgrantees actually disburse the 
withheld funds to the contractors or to escrow accounts established to 
assure satisfactory completion of work.
    (h) Cash depositories. (1) Consistent with the national goal of 
expanding the opportunities for minority business enterprises, grantees 
and subgrantees are encouraged to use minority banks (a bank which is 
owned at least 50 percent by minority group members). A list of minority 
owned banks can be obtained from the Minority Business Development 
Agency, Department of Commerce, Washington, DC 20230.
    (2) A grantee or subgrantee shall maintain a separate bank account 
only when required by Federal-State agreement.
    (i) Interest earned on advances. Unless there are statutory 
provisions to the contrary, grantees and subgrantees shall promptly, but 
at least quarterly, remit to the Federal agency interest earned on 
advances. The grantee or subgrantee may keep interest amounts up to $100 
per year for administrative expenses.

[53 FR 8045, 8087, Mar. 11, 1988, as amended at 57 FR 5, Jan. 2, 1992; 
61 FR 7165, Feb. 26, 1996]



Sec. 600.222  Allowable costs.

    (a) Limitation on use of funds. Grant funds may be used only for:
    (1) The allowable costs of the grantees, subgrantees and cost-type 
contractors, including allowable costs in the form of payments to fixed-
price contractors; and
    (2) Reasonable fees or profit to cost-type contractors but not any 
fee or profit (or other increment above allowable costs) to the grantee 
or subgrantee.
    (b) Applicable cost principles. For each kind of organization, there 
is a set of Federal principles for determining allowable costs. 
Allowable costs will be determined in accordance with the cost 
principles applicable to the organization incurring the costs. The 
following chart lists the kinds of organizations and the applicable cost 
principles.

------------------------------------------------------------------------
           For the costs of a--                Use the principles in--
------------------------------------------------------------------------
State, local or Indian tribal government..  OMB Circular A-87.
Private nonprofit organization other than   OMB Circular A-122.
 an (1) institution of higher education,
 (2) hospital, or (3) organization named
 in OMB Circular A-122 as not subject to
 that circular.
Educational institutions..................  OMB Circular A-21.
For-profit organization other than a        48 CFR part 31. Contract
 hospital and an organization named in OBM   Cost Principles and
 Circular A-122 as not subject to that       Procedures, or uniform cost
 circular.                                   accounting standards that
                                             comply with cost principles
                                             acceptable to the Federal
                                             agency.

[[Page 133]]

 
For-profit organization other than a        48 CFR 931.2
 hospital and an organization named in OMB
 Circular A-122 as not subject to that
 circular..
Hospitals.................................  45 CFR part 74, Appendix E
------------------------------------------------------------------------


[53 FR 8087, Mar. 11, 1988 as amended at 53 FR 8047, Mar. 11, 1988]



Sec. 600.223  Period of availability of funds.

    (a) General. Where a funding period is specified, a grantee may 
charge to the award only costs resulting from obligations of the funding 
period unless carryover of unobligated balances is permitted, in which 
case the carryover balances may be charged for costs resulting from 
obligations of the subsequent funding period.
    (b) Liquidation of obligations. A grantee must liquidate all 
obligations incurred under the award not later than 90 days after the 
end of the funding period (or as specified in a program regulation) to 
coincide with the submission of the annual Financial Status Report (SF-
269). The Federal agency may extend this deadline at the request of the 
grantee.



Sec. 600.224  Matching or cost sharing.

    (a) Basic rule: Costs and contributions acceptable. With the 
qualifications and exceptions listed in paragraph (b) of this section, a 
matching or cost sharing requirement may be satisfied by either or both 
of the following:
    (1) Allowable costs incurred by the grantee, subgrantee or a cost-
type contractor under the assistance agreement. This includes allowable 
costs borne by non-Federal grants or by others cash donations from non-
Federal third parties.
    (2) The value of third party in-kind contributions applicable to the 
period to which the cost sharing or matching requirements applies.
    (b) Qualifications and exceptions--(1) Costs borne by other Federal 
grant agreements. Except as provided by Federal statute, a cost sharing 
or matching requirement may not be met by costs borne by another Federal 
grant. This prohibition does not apply to income earned by a grantee or 
subgrantee from a contract awarded under another Federal grant.
    (2) General revenue sharing. For the purpose of this section, 
general revenue sharing funds distributed under 31 U.S.C. 6702 are not 
considered Federal grant funds.
    (3) Cost or contributions counted towards other Federal costs-
sharing requirements. Neither costs nor the values of third party in-
kind contributions may count towards satisfying a cost sharing or 
matching requirement of a grant agreement if they have been or will be 
counted towards satisfying a cost sharing or matching requirement of 
another Federal grant agreement, a Federal procurement contract, or any 
other award of Federal funds.
    (4) Costs financed by program income. Costs financed by program 
income, as defined in Sec. 600.425, shall not count towards satisfying 
a cost sharing or matching requirement unless they are expressly 
permitted in the terms of the assistance agreement. (This use of general 
program income is described in Sec. 600.225(g).)
    (5) Services or property financed by income earned by contractors. 
Contractors under a grant may earn income from the activities carried 
out under the contract in addition to the amounts earned from the party 
awarding the contract. No costs of services or property supported by 
this income may count toward satisfying a cost sharing or matching 
requirement unless other provisions of the grant agreement expressly 
permit this kind of income to be used to meet the requirement.
    (6) Records. Costs and third party in-kind contributions counting 
towards satisfying a cost sharing or matching requirement must be 
verifiable from the records of grantees and subgrantee or cost-type 
contractors. These records must show how the value placed on third party 
in-kind contributions was derived. To the extent feasible, volunteer 
services will be supported by the same methods that the organization 
uses to support the allocability of regular personnel costs.
    (7) Special standards for third party in-kind contributions. (i) 
Third party in-

[[Page 134]]

kind contributions count towards satisfying a cost sharing or matching 
requirement only where, if the party receiving the contributions were to 
pay for them, the payments would be allowable costs.
    (ii) Some third party in-kind contributions are goods and services 
that, if the grantee, subgrantee, or contractor receiving the 
contribution had to pay for them, the payments would have been an 
indirect costs. Cost sharing or matching credit for such contributions 
shall be given only if the grantee, subgrantee, or contractor has 
established, along with its regular indirect cost rate, a special rate 
for allocating to individual projects or programs the value of the 
contributions.
    (iii) A third party in-kind contribution to a fixed-price contract 
may count towards satisfying a cost sharing or matching requirement only 
if it results in:
    (A) An increase in the services or property provided under the 
contract (without additional cost to the grantee or subgrantee) or
    (B) A cost savings to the grantee or subgrantee.
    (iv) The values placed on third party in-kind contributions for cost 
sharing or matching purposes will conform to the rules in the succeeding 
sections of this subpart. If a third party in-kind contribution is a 
type not treated in those sections, the value placed upon it shall be 
fair and reasonable.
    (c) Valuation of donated services--(1) Volunteer services. Unpaid 
services provided to a grantee or subgrantee by individuals will be 
valued at rates consistent with those ordinarily paid for similar work 
in the grantee's or subgrantee's organization. If the grantee or 
subgrantee does not have employees performing similar work, the rates 
will be consistent with those ordinarily paid by other employers for 
similar work in the same labor market. In either case, a reasonable 
amount for fringe benefits may be included in the valuation.
    (2) Employees of other organizations. When an employer other than a 
grantee, subgrantee, or cost-type contractor furnishes free of charge 
the services of an employee in the employee's normal line of work, the 
services will be valued at the employee's regular rate of pay exclusive 
of the employee's fringe benefits and overhead costs. If the services 
are in a different line of work, paragraph (c)(1) of this section 
applies.
    (d) Valuation of third party donated supplies and loaned equipment 
or space. (1) If a third party donates supplies, the contribution will 
be valued at the market value of the supplies at the time of donation.
    (2) If a third party donates the use of equipment or space in a 
building but retains title, the contribution will be valued at the fair 
rental rate of the equipment or space.
    (e) Valuation of third party donated equipment, buildings, and land. 
If a third party donates equipment, buildings, or land, and title passes 
to a grantee or subgrantee, the treatment of the donated property will 
depend upon the purpose of the grant or subgrant, as follows:
    (1) Awards for capital expenditures. If the purpose of the grant or 
subgrant is to assist the grantee or subgrantee in the acquisition of 
property, the market value of that property at the time of donation may 
be counted as cost sharing or matching,
    (2) Other awards. If assisting in the acquisition of property is not 
the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of 
this section apply:
    (i) If approval is obtained from the awarding agency, the market 
value at the time of donation of the donated equipment or buildings and 
the fair rental rate of the donated land may be counted as cost sharing 
or matching. In the case of a subgrant, the terms of the grant agreement 
may require that the approval be obtained from the Federal agency as 
well as the grantee. In all cases, the approval may be given only if a 
purchase of the equipment or rental of the land would be approved as an 
allowable direct cost. If any part of the donated property was acquired 
with Federal funds, only the non-federal share of the property may be 
counted as cost-sharing or matching.
    (ii) If approval is not obtained under paragraph (e)(2)(i) of this 
section, no amount may be counted for donated land, and only 
depreciation or use allowances may be counted for donated

[[Page 135]]

equipment and buildings. The depreciation or use allowances for this 
property are not treated as third party in-kind contributions. Instead, 
they are treated as costs incurred by the grantee or subgrantee. They 
are computed and allocated (usually as indirect costs) in accordance 
with the cost principles specified in Sec. 600.222, in the same way as 
depreciation or use allowances for purchased equipment and buildings. 
The amount of depreciation or use allowances for donated equipment and 
buildings is based on the property's market value at the time it was 
donated.
    (f) Valuation of grantee or subgrantee donated real property for 
construction/acquisition. If a grantee or subgrantee donates real 
property for a construction or facilities acquisition project, the 
current market value of that property may be counted as cost sharing or 
matching. If any part of the donated property was acquired with Federal 
funds, only the non-federal share of the property may be counted as cost 
sharing or matching.
    (g) Appraisal of real property. In some cases under paragraphs (d), 
(e) and (f) of this section, it will be necessary to establish the 
market value of land or a building or the fair rental rate of land or of 
space in a building. In these cases, the Federal agency may require the 
market value or fair rental value be set by an independent appraiser, 
and that the value or rate be certified by the grantee. This requirement 
will also be imposed by the grantee on subgrantees.

[53 FR 8045, 8087, Mar. 11, 1988, as amended at 57 FR 5, Jan. 2, 1992; 
61 FR 7165, Feb. 26, 1996]



Sec. 600.225  Program income.

    (a) General. Grantees are encouraged to earn income to defray 
program costs. Program income includes income from fees for services 
performed, from the use or rental of real or personal property acquired 
with grant funds, from the sale of commodities or items fabricated under 
a grant agreement, and from payments of principal and interest on loans 
made with grant funds. Except as otherwise provided in regulations of 
the Federal agency, program income does not include interest on grant 
funds, rebates, credits, discounts, refunds, etc. and interest earned on 
any of them.
    (b) Definition of program income. Program income means gross income 
received by the grantee or subgrantee directly generated by a grant 
supported activity, or earned only as a result of the grant agreement 
during the grant period. ``During the grant period'' is the time between 
the effective date of the award and the ending date of the award 
reflected in the final financial report.
    (c) Cost of generating program income. If authorized by Federal 
regulations or the grant agreement, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income.
    (d) Governmental revenues. Taxes, special assessments, levies, 
fines, and other such revenues raised by a grantee or subgrantee are not 
program income unless the revenues are specifically identified in the 
grant agreement or Federal agency regulations as program income.
    (e) Royalties. Income from royalties and license fees for 
copyrighted material, patents, and inventions developed by a grantee or 
subgrantee is program income only if the revenues are specifically 
identified in the grant agreement or Federal agency regulations as 
program income. (See Sec. 600.234.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Sec. Sec. 
600.231 and 600.232.
    (g) Use of program income. Program income shall be deducted from 
outlays which may be both Federal and non-Federal as described below, 
unless the Federal agency regulations or the grant agreement specify 
another alternative (or a combination of the alternatives). In 
specifying alternatives, the Federal agency may distinguish between 
income earned by the grantee and income earned by subgrantees and 
between the sources, kinds, or amounts of income. When Federal agencies 
authorize the alternatives in paragraphs (g) (2) and (3) of this 
section, program income in excess of any limits stipulated shall also be 
deducted from outlays.
    (1) Deduction. Ordinarily program income shall be deducted from 
total allowable costs to determine the net allowable costs. Program 
income shall be

[[Page 136]]

used for current costs unless the Federal agency authorizes otherwise. 
Program income which the grantee did not anticipate at the time of the 
award shall be used to reduce the Federal agency and grantee 
contributions rather than to increase the funds committed to the 
project.
    (2) Addition. When authorized, program income may be added to the 
funds committed to the grant agreement by the Federal agency and the 
grantee. The program income shall be used for the purposes and under the 
conditions of the grant agreement.
    (3) Cost sharing or matching. When authorized, program income may be 
used to meet the cost sharing or matching requirement of the grant 
agreement. The amount of the Federal grant award remains the same.
    (h) Income after the award period. There are no Federal requirements 
governing the disposition of program income earned after the end of the 
award period (i.e., until the ending date of the final financial report, 
see paragraph (a) of this section), unless the terms of the agreement or 
the Federal agency regulations provide otherwise.

[53 FR 8045, 8087, Mar. 11, 1988. Redesignated at 59 FR 53264, Oct. 21, 
1994, as amended at 61 FR 7165, 7166, Feb. 26, 1996]



Sec. 600.226  Non-Federal audit.

    (a) Basic rule. Grantees and subgrantees are responsible for 
obtaining audits in accordance with the Single Audit Act Amendments of 
1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of 
States, Local Governments, and Non-Profit Organizations.'' The audits 
shall be made by an independent auditor in accordance with generally 
accepted government auditing standards covering financial audits.
    (b) Subgrantees. State or local governments, as those terms are 
defined for purposes of the Single Audit Act Amendments of 1996, that 
provide Federal awards to a subgrantee, which expends $300,000 or more 
(or other amount as specified by OMB) in Federal awards in a fiscal 
year, shall:
    (1) Determine whether State or local subgrantees have met the audit 
requirements of the Act and whether subgrantees covered by OMB Circular 
A-110, ``Uniform Administrative Requirements for Grants and Agreements 
with Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations,'' have met the audit requirements of the Act. Commercial 
contractors (private for-profit and private and governmental 
organizations) providing goods and services to State and local 
governments are not required to have a single audit performed. State and 
local governments should use their own procedures to ensure that the 
contractor has complied with laws and regulations affecting the 
expenditure of Federal funds;
    (2) Determine whether the subgrantee spent Federal assistance funds 
provided in accordance with applicable laws and regulations. This may be 
accomplished by reviewing an audit of the subgrantee made in accordance 
with the Act, Circular A-110, or through other means (e.g., program 
reviews) if the subgrantee has not had such an audit;
    (3) Ensure that appropriate corrective action is taken within six 
months after receipt of the audit report in instance of noncompliance 
with Federal laws and regulations;
    (4) Consider whether subgrantee audits necessitate adjustment of the 
grantee's own records; and
    (5) Require each subgrantee to permit independent auditors to have 
access to the records and financial statements.
    (c) Auditor selection. In arranging for audit services, Sec. 
600.236 shall be followed.

[53 FR 8045, 8087, Mar. 11, 1988. Redesignated at 59 FR 53264, Oct. 21, 
1994, as amended at 61 FR 7166, Feb. 26, 1996; 62 FR 45939, 45940, Aug. 
29, 1997]

                    Changes, Property, and Subawards



Sec. 600.230  Changes.

    (a) General. Grantees and subgrantees are permitted to rebudget 
within the approved direct cost budget to meet unanticipated 
requirements and may make limited program changes to the approved 
project. However, unless waived by the awarding agency, certain types of 
post-award changes in budgets and projects shall require the prior 
written approval of the awarding agency.

[[Page 137]]

    (b) Relation to cost principles. The applicable cost principles (see 
Sec. 600.222) contain requirements for prior approval of certain types 
of costs. Except where waived, those requirements apply to all grants 
and subgrants even if paragraphs (c) through (f) of this section do not.
    (c) Budget changes--(1) Nonconstruction projects. Except as stated 
in other regulations or an award document, grantees or subgrantees shall 
obtain the prior approval of the awarding agency whenever any of the 
following changes is anticipated under a nonconstruction award:
    (i) Any revision which would result in the need for additional 
funding.
    (ii) Unless waived by the awarding agency, cumulative transfers 
among direct cost categories, or, if applicable, among separately 
budgeted programs, projects, functions, or activities which exceed or 
are expected to exceed ten percent of the current total approved budget, 
whenever the awarding agency's share exceeds $100,000.
    (iii) Transfer of funds allotted for training allowances (i.e., from 
direct payments to trainees to other expense categories).
    (2) Construction projects. Grantees and subgrantees shall obtain 
prior written approval for any budget revision which would result in the 
need for additional funds.
    (3) Combined construction and nonconstruction projects. When a grant 
or subgrant provides funding for both construction and nonconstruction 
activities, the grantee or subgrantee must obtain prior written approval 
from the awarding agency before making any fund or budget transfer from 
nonconstruction to construction or vice versa.
    (d) Programmatic changes. Grantees or subgrantees must obtain the 
prior approval of the awarding agency whenever any of the following 
actions is anticipated:
    (1) Any revision of the scope or objectives of the project 
(regardless of whether there is an associated budget revision requiring 
prior approval).
    (2) Need to extend the period of availability of funds.
    (3) Changes in key persons in cases where specified in an 
application or a grant award. In research projects, a change in the 
project director or principal investigator shall always require approval 
unless waived by the awarding agency.
    (4) Under nonconstruction projects, contracting out, subgranting (if 
authorized by law) or otherwise obtaining the services of a third party 
to perform activities which are central to the purposes of the award. 
This approval requirement is in addition to the approval requirements of 
Sec. 600.236 but does not apply to the procurement of equipment, 
supplies, and general support services.
    (e) Additional prior approval requirements. The awarding agency may 
not require prior approval for any budget revision which is not 
described in paragraph (c) of this section.
    (f) Requesting prior approval. (1) A request for prior approval of 
any budget revision will be in the same budget formal the grantee used 
in its application and shall be accompanied by a narrative justification 
for the proposed revision.
    (2) A request for a prior approval under the applicable Federal cost 
principles (see Sec. 600.222) may be made by letter.
    (3) A request by a subgrantee for prior approval will be addressed 
in writing to the grantee. The grantee will promptly review such request 
and shall approve or disapprove the request in writing. A grantee will 
not approve any budget or project revision which is inconsistent with 
the purpose or terms and conditions of the Federal grant to the grantee. 
If the revision, requested by the subgrantee would result in a change to 
the grantee's approved project which requires Federal prior approval, 
the grantee will obtain the Federal agency's approval before approving 
the subgrantee's request.

[53 FR 8045, 8087, Mar. 11, 1988. Redesignated at 59 FR 53264, Oct. 21, 
1994, as amended at 61 FR 7166, Feb. 26, 1996]



Sec. 600.231  Real property.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to real property acquired under a grant or subgrant 
will vest upon acquisition in the grantee or subgrantee respectively.

[[Page 138]]

    (b) Use. Except as otherwise provided by Federal statutes, real 
property will be used for the originally authorized purposes as long as 
needed for that purposes, and the grantee or subgrantee shall not 
dispose of or encumber its title or other interests.
    (c) Disposition. When real property is no longer needed for the 
originally authorized purpose, the grantee or subgrantee will request 
disposition instructions from the awarding agency. The instructions will 
provide for one of the following alternatives:
    (1) Retention of title. Retain title after compensating the awarding 
agency. The amount paid to the awarding agency will be computed by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the fair market value of the property. 
However, in those situations where a grantee or subgrantee is disposing 
of real property acquired with grant funds and acquiring replacement 
real property under the same program, the net proceeds from the 
disposition may be used as an offset to the cost of the replacement 
property.
    (2) Sale of property. Sell the property and compensate the awarding 
agency. The amount due to the awarding agency will be calculated by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the proceeds of the sale after deduction of 
any actual and reasonable selling and fixing-up expenses. If the grant 
is still active, the net proceeds from sale may be offset against the 
original cost of the property. When a grantee or subgrantee is directed 
to sell property, sales procedures shall be followed that provide for 
competition to the extent practicable and result in the highest possible 
return.
    (3) Transfer of title. Transfer title to the awarding agency or to a 
third-party designated/approved by the awarding agency. The grantee or 
subgrantee shall be paid an amount calculated by applying the grantee or 
subgrantee's percentage of participation in the purchase of the real 
property to the current fair market value of the property.



Sec. 600.232  Equipment.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to equipment acquired under a grant or subgrant will 
vest upon acquisition in the grantee or subgrantee respectively.
    (b) States. A State will use, manage, and dispose of equipment 
acquired under a grant by the State in accordance with State laws and 
procedures. Other grantees and subgrantees will follow paragraphs (c) 
through (e) of this section.
    (c) Use. (1) Equipment shall be used by the grantee or subgrantee in 
the program or project for which it was acquired as long as needed, 
whether or not the project or program continues to be supported by 
Federal funds. When no longer needed for the original program or 
project, the equipment may be used in other activities currently or 
previously supported by a Federal agency.
    (2) The grantee or subgrantee shall also make equipment available 
for use on other projects or programs currently or previously supported 
by the Federal Government, providing such use will not interfere with 
the work on the projects or program for which it was originally 
acquired. First preference for other use shall be given to other 
programs or projects supported by the awarding agency. User fees should 
be considered if appropriate.
    (3) Notwithstanding the encouragement in Sec. 600.225(a) to earn 
program income, the grantee or subgrantee must not use equipment 
acquired with grant funds to provide services for a fee to compete 
unfairly with private companies that provide equivalent services, unless 
specifically permitted or contemplated by Federal statute.
    (4) When acquiring replacement equipment, the grantee or subgrantee 
may use the equipment to be replaced as a trade-in or sell the property 
and use the proceeds to offset the cost of the replacement property, 
subject to the approval of the awarding agency.
    (d) Management requirements. Procedures for managing equipment 
(including replacement equipment), whether acquired in whole or in part 
with grant funds, until disposition takes place

[[Page 139]]

will, as a minimum, meet the following requirements:
    (1) Property records must be maintained that include a description 
of the property, a serial number or other identification number, the 
source of property, who holds title, the acquisition date, and cost of 
the property, percentage of Federal participation in the cost of the 
property, the location, use and condition of the property, and any 
ultimate disposition data including the date of disposal and sale price 
of the property.
    (2) A physical inventory of the property must be taken and the 
results reconciled with the property records at least once every two 
years.
    (3) A control system must be developed to ensure adequate safeguards 
to prevent loss, damage, or theft of the property. Any loss, damage, or 
theft shall be investigated.
    (4) Adequate maintenance procedures must be developed to keep the 
property in good condition.
    (5) If the grantee or subgrantee is authorized or required to sell 
the property, proper sales procedures must be established to ensure the 
highest possible return.
    (e) Disposition. When original or replacement equipment acquired 
under a grant or subgrant is no longer needed for the original project 
or program or for other activities currently or previously supported by 
a Federal agency, disposition of the equipment will be made as follows:
    (1) Items of equipment with a current per-unit fair market value of 
less than $5,000 may be retained, sold or otherwise disposed of with no 
further obligation to the awarding agency.
    (2) Items of equipment with a current per unit fair market value in 
excess of $5,000 may be retained or sold and the awarding agency shall 
have a right to an amount calculated by multiplying the current market 
value or proceeds from sale by the awarding agency's share of the 
equipment.
    (3) In cases where a grantee or subgrantee fails to take appropriate 
disposition actions, the awarding agency may direct the grantee or 
subgrantee to take excess and disposition actions.
    (f) Federal equipment. In the event a grantee or subgrantee is 
provided federally-owned equipment:
    (1) Title will remain vested in the Federal Government.
    (2) Grantees or subgrantees will manage the equipment in accordance 
with Federal agency rules and procedures, and submit an annual inventory 
listing.
    (3) When the equipment is no longer needed, the grantee or 
subgrantee will request disposition instructions from the Federal 
agency.
    (g) Right to transfer title. The Federal awarding agency may reserve 
the right to transfer title to the Federal Government or a third party 
named by the awarding agency when such a third party is otherwise 
eligible under existing statutes. Such transfers shall be subject to the 
following standards:
    (1) The property shall be identified in the grant or otherwise made 
known to the grantee in writing.
    (2) The Federal awarding agency shall issue disposition instructions 
within 120 calendar days after the end of the Federal support of the 
project for which it was acquired. If the Federal awarding agency fails 
to issue disposition instructions within the 120 calendar-day period the 
grantee shall follow Sec. 600.232(e).
    (3) When title to equipment is transferred, the grantee shall be 
paid an amount calculated by applying the percentage of participation in 
the purchase to the current fair market value of the property.

[53 FR 8045, 8087, Mar. 11, 1988. Redesignated at 59 FR 53264, Oct. 21, 
1994, as amended at 61 FR 7166, Feb. 26, 1996]



Sec. 600.233  Supplies.

    (a) Title. Title to supplies acquired under a grant or subgrant will 
vest, upon acquisition, in the grantee or subgrantee respectively.
    (b) Disposition. If there is a residual inventory of unused supplies 
exceeding $5,000 in total aggregate fair market value upon termination 
or completion of the award, and if the supplies are not needed for any 
other federally sponsored programs or projects, the grantee or 
subgrantee shall compensate the awarding agency for its share.

[[Page 140]]



Sec. 600.234  Copyrights.

    The Federal awarding agency reserves a royalty-free, nonexclusive, 
and irrevocable license to reproduce, publish or otherwise use, and to 
authorize others to use, for Federal Government purposes:
    (a) The copyright in any work developed under a grant, subgrant, or 
contract under a grant or subgrant; and
    (b) Any rights of copyright to which a grantee, subgrantee or a 
contractor purchases ownership with grant support.



Sec. 600.235  Subawards to debarred and suspended parties.

    Grantees and subgrantees must not make any award or permit any award 
(subgrant or contract) at any tier to any party which is debarred or 
suspended or is otherwise excluded from or ineligible for participation 
in Federal assistance programs under Executive Order 12549, ``Debarment 
and Suspension.''



Sec. 600.236  Procurement.

    (a) States. When procuring property and services under a grant, a 
State will follow the same policies and procedures it uses for 
procurements from its non-Federal funds. The State will ensure that 
every purchase order or other contract includes any clauses required by 
Federal statutes and executive orders and their implementing 
regulations. Other grantees and subgrantees will follow paragraphs (b) 
through (i) in this section.
    (b) Procurement standards. (1) Grantees and subgrantees will use 
their own procurement procedures which reflect applicable State and 
local laws and regulations, provided that the procurements conform to 
applicable Federal law and the standards identified in this section.
    (2) Grantees and subgrantees will maintain a contract administration 
system which ensures that contractors perform in accordance with the 
terms, conditions, and specifications of their contracts or purchase 
orders.
    (3) Grantees and subgrantees will maintain a written code of 
standards of conduct governing the performance of their employees 
engaged in the award and administration of contracts. No employee, 
officer or agent of the grantee or subgrantee shall participate in 
selection, or in the award or administration of a contract supported by 
Federal funds if a conflict of interest, real or apparent, would be 
involved. Such a conflict would arise when:
    (i) The employee, officer or agent,
    (ii) Any member of his immediate family,
    (iii) His or her partner, or
    (iv) An organization which employs, or is about to employ, any of 
the above, has a financial or other interest in the firm selected for 
award. The grantee's or subgrantee's officers, employees or agents will 
neither solicit nor accept gratuities, favors or anything of monetary 
value from contractors, potential contractors, or parties to 
subagreements. Grantee and subgrantees may set minimum rules where the 
financial interest is not substantial or the gift is an unsolicited item 
of nominal intrinsic value. To the extent permitted by State or local 
law or regulations, such standards or conduct will provide for 
penalties, sanctions, or other disciplinary actions for violations of 
such standards by the grantee's and subgrantee's officers, employees, or 
agents, or by contractors or their agents. The awarding agency may in 
regulation provide additional prohibitions relative to real, apparent, 
or potential conflicts of interest.
    (4) Grantee and subgrantee procedures will provide for a review of 
proposed procurements to avoid purchase of unnecessary or duplicative 
items. Consideration should be given to consolidating or breaking out 
procurements to obtain a more economical purchase. Where appropriate, an 
analysis will be made of lease versus purchase alternatives, and any 
other appropriate analysis to determine the most economical approach.
    (5) To foster greater economy and efficiency, grantees and 
subgrantees are encouraged to enter into State and local 
intergovernmental agreements for procurement or use of common goods and 
services.
    (6) Grantees and subgrantees are encouraged to use Federal excess 
and surplus property in lieu of purchasing new equipment and property 
whenever such

[[Page 141]]

use is feasible and reduces project costs.
    (7) Grantees and subgrantees are encouraged to use value engineering 
clauses in contracts for construction projects of sufficient size to 
offer reasonable opportunities for cost reductions. Value engineering is 
a systematic and creative anaylsis of each contract item or task to 
ensure that its essential function is provided at the overall lower 
cost.
    (8) Grantees and subgrantees will make awards only to responsible 
contractors possessing the ability to perform successfully under the 
terms and conditions of a proposed procurement. Consideration will be 
given to such matters as contractor integrity, compliance with public 
policy, record of past performance, and financial and technical 
resources.
    (9) Grantees and subgrantees will maintain records sufficient to 
detail the significant history of a procurement. These records will 
include, but are not necessarily limited to the following: rationale for 
the method of procurement, selection of contract type, contractor 
selection or rejection, and the basis for the contract price.
    (10) Grantees and subgrantees will use time and material type 
contracts only--
    (i) After a determination that no other contract is suitable, and
    (ii) If the contract includes a ceiling price that the contractor 
exceeds at its own risk.
    (11) Grantees and subgrantees alone will be responsible, in 
accordance with good administrative practice and sound business 
judgment, for the settlement of all contractual and administrative 
issues arising out of procurements. These issues include, but are not 
limited to source evaluation, protests, disputes, and claims. These 
standards do not relieve the grantee or subgrantee of any contractual 
responsibilities under its contracts. Federal agencies will not 
substitute their judgment for that of the grantee or subgrantee unless 
the matter is primarily a Federal concern. Violations of law will be 
referred to the local, State, or Federal authority having proper 
jurisdiction.
    (12) Grantees and subgrantees will have protest procedures to handle 
and resolve disputes relating to their procurements and shall in all 
instances disclose information regarding the protest to the awarding 
agency. A protestor must exhaust all administrative remedies with the 
grantee and subgrantee before pursuing a protest with the Federal 
agency. Reviews of protests by the Federal agency will be limited to:
    (i) Violations of Federal law or regulations and the standards of 
this section (violations of State or local law will be under the 
jurisdiction of State or local authorities) and
    (ii) Violations of the grantee's or subgrantee's protest procedures 
for failure to review a complaint or protest. Protests received by the 
Federal agency other than those specified above will be referred to the 
grantee or subgrantee.
    (c) Competition. (1) All procurement transactions will be conducted 
in a manner providing full and open competition consistent with the 
standards of Sec. 600.236. Some of the situations considered to be 
restrictive of competition include but are not limited to:
    (i) Placing unreasonable requirements on firms in order for them to 
qualify to do business,
    (ii) Requiring unnecessary experience and excessive bonding,
    (iii) Noncompetitive pricing practices between firms or between 
affiliated companies,
    (iv) Noncompetitive awards to consultants that are on retainer 
contracts,
    (v) Organizational conflicts of interest,
    (vi) Specifying only a ``brand name'' product instead of allowing 
``an equal'' product to be offered and describing the performance of 
other relevant requirements of the procurement, and
    (vii) Any arbitrary action in the procurement process.
    (2) Grantees and subgrantees will conduct procurements in a manner 
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or 
proposals, except in those cases where applicable Federal statutes 
expressly mandate or encourage geographic preference. Nothing in this 
section preempts State licensing laws. When contracting for 
architectural and engineering (A/E) services,

[[Page 142]]

geographic location may be a selection criteria provided its application 
leaves an appropriate number of qualified firms, given the nature and 
size of the project, to compete for the contract.
    (3) Grantees will have written selection procedures for procurement 
transactions. These procedures will ensure that all solicitations:
    (i) Incorporate a clear and accurate description of the technical 
requirements for the material, product, or service to be procured. Such 
description shall not, in competitive procurements, contain features 
which unduly restrict competition. The description may include a 
statement of the qualitative nature of the material, product or service 
to be procured, and when necessary, shall set forth those minimum 
essential characteristics and standards to which it must conform if it 
is to satisfy its intended use. Detailed product specifications should 
be avoided if at all possible. When it is impractical or uneconomical to 
make a clear and accurate description of the technical requirements, a 
``brand name or equal'' description may be used as a means to define the 
performance or other salient requirements of a procurement. The specific 
features of the named brand which must be met by offerors shall be 
clearly stated; and
    (ii) Identify all requirements which the offerors must fulfill and 
all other factors to be used in evaluating bids or proposals.
    (4) Grantees and subgrantees will ensure that all prequalified lists 
of persons, firms, or products which are used in acquiring goods and 
services are current and include enough qualified sources to ensure 
maximum open and free competition. Also, grantees and subgrantees will 
not preclude potential bidders from qualifying during the solicitation 
period.
    (d) Methods of procurement to be followed. (1) Procurement by small 
purchase procedures. Small purchase procedures are those relatively 
simple and informal procurement methods for securing services, supplies, 
or other property that do not cost more than the simplified acquisition 
threshold fixed at 41 U.S.C. 403(11) (currently set at $100,000). If 
small purchase procedures are used, price or rate quotations shall be 
obtained from an adequate number of qualified sources.
    (2) Procurement by sealed bids (formal advertising). Bids are 
publicly solicited and a firm-fixed-price contract (lump sum or unit 
price) is awarded to the responsible bidder whose bid, conforming with 
all the material terms and conditions of the invitation for bids, is the 
lowest in price. The sealed bid method is the preferred method for 
procuring construction, if the conditions in Sec. 600.236(d)(2)(i) 
apply.
    (i) In order for sealed bidding to be feasible, the following 
conditions should be present:
    (A) A complete, adequate, and realistic specification or purchase 
description is available;
    (B) Two or more responsible bidders are willing and able to compete 
effectively and for the business; and
    (C) The procurement lends itself to a firm fixed price contract and 
the selection of the successful bidder can be made principally on the 
basis of price.
    (ii) If sealed bids are used, the following requirements apply:
    (A) The invitation for bids will be publicly advertised and bids 
shall be solicited from an adequate number of known suppliers, providing 
them sufficient time prior to the date set for opening the bids;
    (B) The invitation for bids, which will include any specifications 
and pertinent attachments, shall define the items or services in order 
for the bidder to properly respond;
    (C) All bids will be publicly opened at the time and place 
prescribed in the invitation for bids;
    (D) A firm fixed-price contract award will be made in writing to the 
lowest responsive and responsible bidder. Where specified in bidding 
documents, factors such as discounts, transportation cost, and life 
cycle costs shall be considered in determining which bid is lowest. 
Payment discounts will only be used to determine the low bid when prior 
experience indicates that such discounts are usually taken advantage of; 
and
    (E) Any or all bids may be rejected if there is a sound documented 
reason.
    (3) Procurement by competitive proposals. The technique of 
competitive proposals is normally conducted with

[[Page 143]]

more than one source submitting an offer, and either a fixed-price or 
cost-reimbursement type contract is awarded. It is generally used when 
conditions are not appropriate for the use of sealed bids. If this 
method is used, the following requirements apply:
    (i) Requests for proposals will be publicized and identify all 
evaluation factors and their relative importance. Any response to 
publicized requests for proposals shall be honored to the maximum extent 
practical;
    (ii) Proposals will be solicited from an adequate number of 
qualified sources;
    (iii) Grantees and subgrantees will have a method for conducting 
technical evaluations of the proposals received and for selecting 
awardees;
    (iv) Awards will be made to the responsible firm whose proposal is 
most advantageous to the program, with price and other factors 
considered; and
    (v) Grantees and subgrantees may use competitive proposal procedures 
for qualifications-based procurement of architectural/engineering (A/E) 
professional services whereby competitors' qualifications are evaluated 
and the most qualified competitor is selected, subject to negotiation of 
fair and reasonable compensation. The method, where price is not used as 
a selection factor, can only be used in procurement of A/E professional 
services. It cannot be used to purchase other types of services though 
A/E firms are a potential source to perform the proposed effort.
    (4) Procurement by noncompetitive proposals is procurement through 
solicitation of a proposal from only one source, or after solicitation 
of a number of sources, competition is determined inadequate.
    (i) Procurement by noncompetitive proposals may be used only when 
the award of a contract is infeasible under small purchase procedures, 
sealed bids or competitive proposals and one of the following 
circumstances applies:
    (A) The item is available only from a single source;
    (B) The public exigency or emergency for the requirement will not 
permit a delay resulting from competitive solicitation;
    (C) The awarding agency authorizes noncompetitive proposals; or
    (D) After solicitation of a number of sources, competition is 
determined inadequate.
    (ii) Cost analysis, i.e., verifying the proposed cost data, the 
projections of the data, and the evaluation of the specific elements of 
costs and profits, is required.
    (iii) Grantees and subgrantees may be required to submit the 
proposed procurement to the awarding agency for pre-award review in 
accordance with paragraph (g) of this section.
    (e) Contracting with small and minority firms, women's business 
enterprise and labor surplus area firms. (1) The grantee and subgrantee 
will take all necessary affirmative steps to assure that minority firms, 
women's business enterprises, and labor surplus area firms are used when 
possible.
    (2) Affirmative steps shall include:
    (i) Placing qualified small and minority businesses and women's 
business enterprises on solicitation lists;
    (ii) Assuring that small and minority businesses, and women's 
business enterprises are solicited whenever they are potential sources;
    (iii) Dividing total requirements, when economically feasible, into 
smaller tasks or quantities to permit maximum participation by small and 
minority business, and women's business enterprises;
    (iv) Establishing delivery schedules, where the requirement permits, 
which encourage participation by small and minority business, and 
women's business enterprises;
    (v) Using the services and assistance of the Small Business 
Administration, and the Minority Business Development Agency of the 
Department of Commerce; and
    (vi) Requiring the prime contractor, if subcontracts are to be let, 
to take the affirmative steps listed in paragraphs (e)(2) (i) through 
(v) of this section.
    (f) Contract cost and price. (1) Grantees and subgrantees must 
perform a cost or price analysis in connection with every procurement 
action including contract modifications. The method and degree of 
analysis is dependent on the facts surrounding the particular

[[Page 144]]

procurement situation, but as a starting point, grantees must make 
independent estimates before receiving bids or proposals. A cost 
analysis must be performed when the offeror is required to submit the 
elements of his estimated cost, e.g., under professional, consulting, 
and architectural engineering services contracts. A cost analysis will 
be necessary when adequate price competition is lacking, and for sole 
source procurements, including contract modifications or change orders, 
unless price resonableness can be established on the basis of a catalog 
or market price of a commercial product sold in substantial quantities 
to the general public or based on prices set by law or regulation. A 
price analysis will be used in all other instances to determine the 
reasonableness of the proposed contract price.
    (2) Grantees and subgrantees will negotiate profit as a separate 
element of the price for each contract in which there is no price 
competition and in all cases where cost analysis is performed. To 
establish a fair and reasonable profit, consideration will be given to 
the complexity of the work to be performed, the risk borne by the 
contractor, the contractor's investment, the amount of subcontracting, 
the quality of its record of past performance, and industry profit rates 
in the surrounding geographical area for similar work.
    (3) Costs or prices based on estimated costs for contracts under 
grants will be allowable only to the extent that costs incurred or cost 
estimates included in negotiated prices are consistent with Federal cost 
principles (see Sec. 600.422). Grantees may reference their own cost 
principles that comply with the applicable Federal cost principles.
    (4) The cost plus a percentage of cost and percentage of 
construction cost methods of contracting shall not be used.
    (g) Awarding agency review. (1) Grantees and subgrantees must make 
available, upon request of the awarding agency, technical specifications 
on proposed procurements where the awarding agency believes such review 
is needed to ensure that the item and/or service specified is the one 
being proposed for purchase. This review generally will take place prior 
to the time the specification is incorporated into a solicitation 
document. However, if the grantee or subgrantee desires to have the 
review accomplished after a solicitation has been developed, the 
awarding agency may still review the specifications, with such review 
usually limited to the technical aspects of the proposed purchase.
    (2) Grantees and subgrantees must on request make available for 
awarding agency pre-award review procurement documents, such as requests 
for proposals or invitations for bids, independent cost estimates, etc. 
when:
    (i) A grantee's or subgrantee's procurement procedures or operation 
fails to comply with the procurement standards in this section; or
    (ii) The procurement is expected to exceed the simplified 
acquisition threshold and is to be awarded without competition or only 
one bid or offer is received in response to a solicitation; or
    (iii) The procurement, which is expected to exceed the simplified 
acquisition threshold, specifies a ``brand name'' product; or
    (iv) The proposed award is more than the simplified acquisition 
threshold and is to be awarded to other than the apparent low bidder 
under a sealed bid procurement; or
    (v) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the simplified acquisition 
threshold.
    (3) A grantee or subgrantee will be exempt from the pre-award review 
in paragraph (g)(2) of this section if the awarding agency determines 
that its procurement systems comply with the standards of this section.
    (i) A grantee or subgrantee may request that its procurement system 
be reviewed by the awarding agency to determine whether its system meets 
these standards in order for its system to be certified. Generally, 
these reviews shall occur where there is a continuous high-dollar 
funding, and third-party contracts are awarded on a regular basis.
    (ii) A grantee or subgrantee may self-certify its procurement 
system. Such self-certification shall not limit the

[[Page 145]]

awarding agency's right to survey the system. Under a self-certification 
procedure, awarding agencies may wish to rely on written assurances from 
the grantee or subgrantee that it is complying with these standards. A 
grantee or subgrantee will cite specific procedures, regulations, 
standards, etc., as being in compliance with these requirements and have 
its system available for review.
    (h) Bonding requirements. For construction or facility improvement 
contracts or subcontracts exceeding the simplified acquisition 
threshold, the awarding agency may accept the bonding policy and 
requirements of the grantee or subgrantee provided the awarding agency 
has made a determination that the awarding agency's interest is 
adequately protected. If such a determination has not been made, the 
minimum requirements shall be as follows:
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder will, upon acceptance of 
his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is one executed in 
connection with a contract to secure fulfillment of all the contractor's 
obligations under such contract.
    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by law of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.
    (i) Contract provisions. A grantee's and subgrantee's contracts must 
contain provisions in paragraph (i) of this section. Federal agencies 
are permitted to require changes, remedies, changed conditions, access 
and records retention, suspension of work, and other clauses approved by 
the Office of Federal Procurement Policy.
    (1) Administrative, contractual, or legal remedies in instances 
where contractors violate or breach contract terms, and provide for such 
sanctions and penalties as may be appropriate. (Contracts more than the 
simplified acquisition threshold)
    (2) Termination for cause and for convenience by the grantee or 
subgrantee including the manner by which it will be effected and the 
basis for settlement. (All contracts in excess of $10,000)
    (3) Compliance with Executive Order 11246 of September 24, 1965, 
entitled ``Equal Employment Opportunity,'' as amended by Executive Order 
11375 of October 13, 1967, and as supplemented in Department of Labor 
regulations (41 CFR chapter 60). (All construction contracts awarded in 
excess of $10,000 by grantees and their contractors or subgrantees)
    (4) Compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C. 
874) as supplemented in Department of Labor regulations (29 CFR Part 3). 
(All contracts and subgrants for construction or repair)
    (5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) 
as supplemented by Department of Labor regulations (29 CFR Part 5). 
(Construction contracts in excess of $2000 awarded by grantees and 
subgrantees when required by Federal grant program legislation)
    (6) Compliance with Sections 103 and 107 of the Contract Work Hours 
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by 
Department of Labor regulations (29 CFR Part 5). (Construction contracts 
awarded by grantees and subgrantees in excess of $2000, and in excess of 
$2500 for other contracts which involve the employment of mechanics or 
laborers)
    (7) Notice of awarding agency requirements and regulations 
pertaining to reporting.
    (8) Notice of awarding agency requirements and regulations 
pertaining to patent rights with respect to any discovery or invention 
which arises or is developed in the course of or under such contract.
    (9) Awarding agency requirements and regulations pertaining to 
copyrights and rights in data.
    (10) Access by the grantee, the subgrantee, the Federal grantor 
agency,

[[Page 146]]

the Comptroller General of the United States, or any of their duly 
authorized representatives to any books, documents, papers, and records 
of the contractor which are directly pertinent to that specific contract 
for the purpose of making audit, examination, excerpts, and 
transcriptions.
    (11) Retention of all required records for three years after 
grantees or subgrantees make final payments and all other pending 
matters are closed.
    (12) Compliance with all applicable standards, orders, or 
requirements issued under section 306 of the Clean Air Act (42 U.S.C. 
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive 
Order 11738, and Environmental Protection Agency regulations (40 CFR 
part 15). (Contracts, subcontracts, and subgrants of amounts in excess 
of $100,000).
    (13) Mandatory standards and policies relating to energy efficiency 
which are contained in the state energy conservation plan issued in 
compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 
89 Stat. 871).

[53 FR 8045, 8087, Mar. 11, 1988, as amended at 60 FR 19639, 19641, Apr. 
19, 1995; 61 FR 7166, Feb. 26, 1996]



Sec. 600.237  Subgrants.

    (a) States. States shall follow state law and procedures when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. States shall:
    (1) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations;
    (2) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statute and regulation;
    (3) Ensure that a provision for compliance with Sec. 600.242 is 
placed in every cost reimbursement subgrant; and
    (4) Conform any advances of grant funds to subgrantees substantially 
to the same standards of timing and amount that apply to cash advances 
by Federal agencies.
    (b) All other grantees. All other grantees shall follow the 
provisions of this subpart which are applicable to awarding agencies 
when awarding and administering subgrants (whether on a cost 
reimbursement or fixed amount basis) of financial assistance to local 
and Indian tribal governments. Grantees shall:
    (1) Ensure that every subgrant includes a provision for compliance 
with this subpart;
    (2) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations; 
and
    (3) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statutes and regulations.
    (c) Exceptions. By their own terms, certain provisions of this 
subpart do not apply to the award and administration of subgrants:
    (1) Section 600.210;
    (2) Section 600.211;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR part 205, cited in Sec. 600.221; and
    (4) Section 600.250.

[53 FR 8045, 8087, Mar. 11, 1988. Redesignated at 59 FR 53264, Oct. 21, 
1994, as amended at 61 FR 7166, Feb. 26, 1996]

               Reports, Records Retention, and Enforcement



Sec. 600.240  Monitoring and reporting program performance.

    (a) Monitoring by grantees. Grantees are responsible for managing 
the day-to-day operations of grant and subgrant supported activities. 
Grantees must monitor grant and subgrant supported activities to assure 
compliance with applicable Federal requirements and that performance 
goals are being achieved. Grantee monitoring must cover each program, 
function or activity.
    (b) Nonconstruction performance reports. The Federal agency may, if 
it decides that performance information available from subsequent 
applications contains sufficient information to meet its programmatic 
needs, require the grantee to submit a performance report only upon 
expiration or termination of grant support. Unless waived by the Federal 
agency this report will be due on the same date as the final Financial 
Status Report.

[[Page 147]]

    (1) Grantees shall submit annual performance reports unless the 
awarding agency requires quarterly or semi-annual reports. However, 
performance reports will not be required more frequently than quarterly. 
Annual reports shall be due 90 days after the grant year, quarterly or 
semi-annual reports shall be due 30 days after the reporting period. The 
final performance report will be due 90 days after the expiration or 
termination of grant support. If a justified request is submitted by a 
grantee, the Federal agency may extend the due date for any performance 
report. Additionally, requirements for unnecessary performance reports 
may be waived by the Federal agency.
    (2) Performance reports will contain, for each grant, brief 
information on the following:
    (i) A comparison of actual accomplishments to the objectives 
established for the period. Where the output of the project can be 
quantified, a computation of the cost per unit of output may be required 
if that information will be useful.
    (ii) The reasons for slippage if established objectives were not 
met.
    (iii) Additional pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (3) Grantees will not be required to submit more than the original 
and two copies of performance reports.
    (4) Grantees will adhere to the standards in this section in 
prescribing performance reporting requirements for subgrantees.
    (c) Construction performance reports. For the most part, on-site 
technical inspections and certified percentage-of-completion data are 
relied on heavily by Federal agencies to monitor progress under 
construction grants and subgrants. The Federal agency will require 
additional formal performance reports only when considered necessary, 
and never more frequently than quarterly.
    (d) Significant developments. Events may occur between the scheduled 
performance reporting dates which have significant impact upon the grant 
or subgrant supported activity. In such cases, the grantee must inform 
the Federal agency as soon as the following types of conditions become 
known:
    (1) Problems, delays, or adverse conditions which will materially 
impair the ability to meet the objective of the award. This disclosure 
must include a statement of the action taken, or contemplated, and any 
assistance needed to resolve the situation.
    (2) Favorable developments which enable meeting time schedules and 
objectives sooner or at less cost than anticipated or producing more 
beneficial results than originally planned.
    (e) Federal agencies may make site visits as warranted by program 
needs.
    (f) Waivers, extensions. (1) Federal agencies may waive any 
performance report required by this part if not needed.
    (2) The grantee may waive any performance report from a subgrantee 
when not needed. The grantee may extend the due date for any performance 
report from a subgrantee if the grantee will still be able to meet its 
performance reporting obligations to the Federal agency.



Sec. 600.241  Financial reporting.

    (a) General. (1) Except as provided in paragraphs (a) (2) and (5) of 
this section, grantees will use only the forms specified in paragraphs 
(a) through (e) of this section, and such supplementary or other forms 
as may from time to time be authorized by OMB, for:
    (i) Submitting financial reports to Federal agencies, or
    (ii) Requesting advances or reimbursements when letters of credit 
are not used.
    (2) Grantees need not apply the forms prescribed in this section in 
dealing with their subgrantees. However, grantees shall not impose more 
burdensome requirements on subgrantees.
    (3) Grantees shall follow all applicable standard and supplemental 
Federal agency instructions approved by OMB to the extent required under 
the Paperwork Reduction Act of 1980 for use in connection with forms 
specified in paragraphs (b) through (e) of this section. Federal 
agencies may issue substantive supplementary instructions only with the 
approval of OMB. Federal agencies may shade out or instruct the

[[Page 148]]

grantee to disregard any line item that the Federal agency finds 
unnecessary for its decisionmaking purposes.
    (4) Grantees will not be required to submit more than the original 
and two copies of forms required under this subpart.
    (5) Federal agencies may provide computer outputs to grantees to 
expedite or contribute to the accuracy of reporting. Federal agencies 
may accept the required information from grantees in machine usable 
format or computer printouts instead of prescribed forms.
    (6) Federal agencies may waive any report required by this section 
if not needed.
    (7) Federal agencies may extend the due date of any financial report 
upon receiving a justified request from a grantee.
    (b) Financial Status Report--(1) Form. Grantees will use Standard 
Form 269 or 269A, Financial Status Report, to report the status of funds 
for all nonconstruction grants and for construction grants when required 
in accordance with Sec. 600.241(e)(2)(iii).
    (2) Accounting basis. Each grantee will report program outlays and 
program income on a cash or accrual basis as prescribed by the awarding 
agency. If the Federal agency requires accrual information and the 
grantee's accounting records are not normally kept on the accrual basis, 
the grantee shall not be required to convert its accounting system but 
shall develop such accrual information through and analysis of the 
documentation on hand.
    (3) Frequency. The Federal agency may prescribe the frequency of the 
report for each project or program. However, the report will not be 
required more frequently than quarterly. If the Federal agency does not 
specify the frequency of the report, it will be submitted annually. A 
final report will be required upon expiration or termination of grant 
support.
    (4) Due date. When reports are required on a quarterly or semiannual 
basis, they will be due 30 days after the reporting period. When 
required on an annual basis, they will be due 90 days after the grant 
year. Final reports will be due 90 days after the expiration or 
termination of grant support.
    (c) Federal Cash Transactions Report--(1) Form. (i) For grants paid 
by letter or credit, Treasury check advances or electronic transfer of 
funds, the grantee will submit the Standard Form 272, Federal Cash 
Transactions Report, and when necessary, its continuation sheet, 
Standard Form 272a, unless the terms of the award exempt the grantee 
from this requirement.
    (ii) These reports will be used by the Federal agency to monitor 
cash advanced to grantees and to obtain disbursement or outlay 
information for each grant from grantees. The format of the report may 
be adapted as appropriate when reporting is to be accomplished with the 
assistance of automatic data processing equipment provided that the 
information to be submitted is not changed in substance.
    (2) Forecasts of Federal cash requirements. Forecasts of Federal 
cash requirements may be required in the ``Remarks'' section of the 
report.
    (3) Cash in hands of subgrantees. When considered necessary and 
feasible by the Federal agency, grantees may be required to report the 
amount of cash advances in excess of three days' needs in the hands of 
their subgrantees or contractors and to provide short narrative 
explanations of actions taken by the grantee to reduce the excess 
balances.
    (4) Frequency and due date. Grantees must submit the report no later 
than 15 working days following the end of each quarter. However, where 
an advance either by letter of credit or electronic transfer of funds is 
authorized at an annualized rate of one million dollars or more, the 
Federal agency may require the report to be submitted within 15 working 
days following the end of each month.
    (d) Request for advance or reimbursement--(1) Advance payments. 
Requests for Treasury check advance payments will be submitted on 
Standard Form 270, Request for Advance or Reimbursement. (This form will 
not be used for drawdowns under a letter of credit, electronic funds 
transfer or when Treasury check advance payments are made to the grantee 
automatically on a predetermined basis.)
    (2) Reimbursements. Requests for reimbursement under nonconstruction

[[Page 149]]

grants will also be submitted on Standard Form 270. (For reimbursement 
requests under construction grants, see paragraph (e)(1) of this 
section.)
    (3) The frequency for submitting payment requests is treated in 
Sec. 600.441(b)(3).
    (e) Outlay report and request for reimbursement for construction 
programs--(1) Grants that support construction activities paid by 
reimbursement method. (i) Requests for reimbursement under construction 
grants will be submitted on Standard Form 271, Outlay Report and Request 
for Reimbursement for Construction Programs. Federal agencies may, 
however, prescribe the Request for Advance or Reimbursement form, 
specified in Sec. 600.241(d), instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in Sec. 600.241(b)(3).
    (2) Grants that support construction activities paid by letter of 
credit, electronic funds transfer or Treasury check advance. (i) When a 
construction grant is paid by letter of credit, electronic funds 
transfer or Treasury check advances, the grantee will report its outlays 
to the Federal agency using Standard Form 271, Outlay Report and Request 
for Reimbursement for Construction Programs. The Federal agency will 
provide any necessary special instruction. However, frequency and due 
date shall be governed by Sec. 600.241(b) (3) and (4).
    (ii) When a construction grant is paid by Treasury check advances 
based on periodic requests from the grantee, the advances will be 
requested on the form specified in Sec. 600.241(d).
    (iii) The Federal agency may substitute the Financial Status Report 
specified in Sec. 600.241(b) for the Outlay Report and Request for 
Reimbursement for Construction Programs.
    (3) Accounting basis. The accounting basis for the Outlay Report and 
Request for Reimbursement for Construction Programs shall be governed by 
Sec. 600.241(b)(2).

[53 FR 8045, 8047, Mar. 11, 1988, as amended at 59 FR 53266, Oct. 21, 
1994; 61 FR 7166, Feb. 26, 1996]



Sec. 600.242  Retention and access requirements for records.

    (a) Applicability. (1) This section applies to all financial and 
programmatic records, supporting documents, statistical records, and 
other records of grantees or subgrantees which are:
    (i) Required to be maintained by the terms of this subpart, program 
regulations or the grant agreement, or
    (ii) Otherwise reasonably considered as pertinent to program 
regulations or the grant agreement.
    (2) This section does not apply to records maintained by contractors 
or subcontractors. For a requirement to place a provision concerning 
records in certain kinds of contracts, see Sec. 600.436(i)(10).
    (b) Length of retention period. (1) Except as otherwise provided, 
records must be retained for three years from the starting date 
specified in paragraph (c) of this section.
    (2) If any litigation, claim, negotiation, audit or other action 
involving the records has been started before the expiration of the 3-
year period, the records must be retained until completion of the action 
and resolution of all issues which arise from it, or until the end of 
the regular 3-year period, whichever is later.
    (3) To avoid duplicate recordkeeping, awarding agencies may make 
special arrangements with grantees and subgrantees to retain any records 
which are continuously needed for joint use. The awarding agency will 
request transfer of records to its custody when it determines that the 
records possess long-term retention value. When the records are 
transferred to or maintained by the Federal agency, the 3-year retention 
requirement is not applicable to the grantee or subgrantee.
    (c) Starting date of retention period--(1) General. When grant 
support is continued or renewed at annual or other intervals, the 
retention period for the records of each funding period starts on the 
day the grantee or subgrantee submits to the awarding agency its single 
or last expenditure report for that period. However, if grant support is 
continued or renewed quarterly, the retention period for each year's 
records starts on the day the grantee submits

[[Page 150]]

its expenditure report for the last quarter of the Federal fiscal year. 
In all other cases, the retention period starts on the day the grantee 
submits its final expenditure report. If an expenditure report has been 
waived, the retention period starts on the day the report would have 
been due.
    (2) Real property and equipment records. The retention period for 
real property and equipment records starts from the date of the 
disposition or replacement or transfer at the direction of the awarding 
agency.
    (3) Records for income transactions after grant or subgrant support. 
In some cases grantees must report income after the period of grant 
support. Where there is such a requirement, the retention period for the 
records pertaining to the earning of the income starts from the end of 
the grantee's fiscal year in which the income is earned.
    (4) Indirect cost rate proposals, cost allocations plans, etc. This 
paragraph applies to the following types of documents, and their 
supporting records: indirect cost rate computations or proposals, cost 
allocation plans, and any similar accounting computations of the rate at 
which a particular group of costs is chargeable (such as computer usage 
chargeback rates or composite fringe benefit rates).
    (i) If submitted for negotiation. If the proposal, plan, or other 
computation is required to be submitted to the Federal Government (or to 
the grantee) to form the basis for negotiation of the rate, then the 3-
year retention period for its supporting records starts from the date of 
such submission.
    (ii) If not submitted for negotiation. If the proposal, plan, or 
other computation is not required to be submitted to the Federal 
Government (or to the grantee) for negotiation purposes, then the 3-year 
retention period for the proposal plan, or computation and its 
supporting records starts from end of the fiscal year (or other 
accounting period) covered by the proposal, plan, or other computation.
    (d) Substitution of microfilm. Copies made by microfilming, 
photocopying, or similar methods may be substituted for the original 
records.
    (e) Access to records--(1) Records of grantees and subgrantees. The 
awarding agency and the Comptroller General of the United States, or any 
of their authorized representatives, shall have the right of access to 
any pertinent books, documents, papers, or other records of grantees and 
subgrantees which are pertinent to the grant, in order to make audits, 
examinations, excerpts, and transcripts.
    (2) Expiration of right of access. The rights of access in this 
section must not be limited to the required retention period but shall 
last as long as the records are retained.
    (f) Restrictions on public access. The Federal Freedom of 
Information Act (5 U.S.C. 552) does not apply to records unless required 
by Federal, State, or local law, grantees and subgrantees are not 
required to permit public access to their records.



Sec. 600.243  Enforcement.

    (a) Remedies for noncompliance. If a grantee or subgrantee 
materially fails to comply with any term of an award, whether stated in 
a Federal statute or regulation, an assurance, in a State plan or 
application, a notice of award, or elsewhere, the awarding agency may 
take one or more of the following actions, as appropriate in the 
circumstances:
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the grantee or subgrantee or more severe enforcement 
action by the awarding agency,
    (2) Disallow (that is, deny both use of funds and matching credit 
for) all or part of the cost of the activity or action not in 
compliance,
    (3) Wholly or partly suspend or terminate the current award for the 
grantee's or subgrantee's program,
    (4) Withhold further awards for the program, or
    (5) Take other remedies that may be legally available.
    (b) Hearings, appeals. In taking an enforcement action, the awarding 
agency will provide the grantee or subgrantee an opportunity for such 
hearing, appeal, or other administrative proceeding to which the grantee 
or subgrantee is entitled under any statute or regulation applicable to 
the action involved.

[[Page 151]]

    (c) Effects of suspension and termination. Costs of grantee or 
subgrantee resulting from obligations incurred by the grantee or 
subgrantee during a suspension or after termination of an award are not 
allowable unless the awarding agency expressly authorizes them in the 
notice of suspension or termination or subsequently. Other grantee or 
subgrantee costs during suspension or after termination which are 
necessary and not reasonably avoidable are allowable if:
    (1) The costs result from obligations which were properly incurred 
by the grantee or subgrantee before the effective date of suspension or 
termination, are not in anticipation of it, and, in the case of a 
termination, are noncancellable, and,
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude grantee or subgrantee from being subject to 
``Debarment and Suspension'' under E.O. 12549 (see Sec. 600.235).

[53 FR 8045, 8087, Mar. 11, 1988. Redesignated at 59 FR 53264, Oct. 21, 
1994, as amended at 61 FR 7166, Feb. 26, 1996]



Sec. 600.244  Termination for convenience.

    Except as provided in Sec. 600.443 awards may be terminated in 
whole or in part only as follows:
    (a) By the awarding agency with the consent of the grantee or 
subgrantee in which case the two parties shall agree upon the 
termination conditions, including the effective date and in the case of 
partial termination, the portion to be terminated, or
    (b) By the grantee or subgrantee upon written notification to the 
awarding agency, setting forth the reasons for such termination, the 
effective date, and in the case of partial termination, the portion to 
be terminated. However, if, in the case of a partial termination, the 
awarding agency determines that the remaining portion of the award will 
not accomplish the purposes for which the award was made, the awarding 
agency may terminate the award in its entirety under either Sec. 
600.243 or paragraph (a) of this section.

[53 FR 8045, 8087, Mar. 11, 1988. Redesignated at 59 FR 53264, Oct. 21, 
1994, as amended at 61 FR 7166, Feb. 26, 1996]

                      After-the-Grant Requirements



Sec. 600.250  Closeout.

    (a) General. The Federal agency will close out the award when it 
determines that all applicable administrative actions and all required 
work of the grant has been completed.
    (b) Reports. Within 90 days after the expiration or termination of 
the grant, the grantee must submit all financial, performance, and other 
reports required as a condition of the grant. Upon request by the 
grantee, Federal agencies may extend this timeframe. These may include 
but are not limited to:
    (1) Final performance or progress report.
    (2) Financial Status Report (SF 269) or Outlay Report and Request 
for Reimbursement for Construction Programs (SF-271) (as applicable).
    (3) Final request for payment (SF-270) (if applicable).
    (4) Invention disclosure (if applicable).
    (5) Federally-owned property report:

In accordance with Sec. 600.232(f), a grantee must submit an inventory 
of all federally owned property (as distinct from property acquired with 
grant funds) for which it is accountable and request disposition 
instructions from the Federal agency of property no longer needed.
    (c) Cost adjustment. The Federal agency will, within 90 days after 
receipt of reports in paragraph (b) of this section, make upward or 
downward adjustments to the allowable costs.
    (d) Cash adjustments. (1) The Federal agency will make prompt 
payment to the grantee for allowable reimbursable costs.
    (2) The grantee must immediately refund to the Federal agency any 
balance of unobligated (unencumbered) cash advanced that is not 
authorized to be retained for use on other grants.

[53 FR 8045, 8087, Mar. 11, 1988. Redesignated at 59 FR 53264, Oct. 21, 
1994, as amended at 61 FR 7166, Feb. 26, 1996]

[[Page 152]]



Sec. 600.251  Later disallowances and adjustments.

    The closeout of a grant does not affect:
    (a) The Federal agency's right to disallow costs and recover funds 
on the basis of a later audit or other review;
    (b) The grantee's obligation to return any funds due as a result of 
later refunds, corrections, or other transactions;
    (c) Records retention as required in Sec. 600.242;
    (d) Property management requirements in Sec. Sec. 600.231 and 
600.232; and
    (e) Audit requirements in Sec. 600.226.

[53 FR 8045, 8087, Mar. 11, 1988. Redesignated at 59 FR 53264, Oct. 21, 
1994, as amended at 61 FR 7166, Feb. 26, 1996]



Sec. 600.252  Collection of amounts due.

    (a) Any funds paid to a grantee in excess of the amount to which the 
grantee is finally determined to be entitled under the terms of the 
award constitute a debt to the Federal Government. If not paid within a 
reasonable period after demand, the Federal agency may reduce the debt 
by:
    (1) Making an adminstrative offset against other requests for 
reimbursements,
    (2) Withholding advance payments otherwise due to the grantee, or
    (3) Other action permitted by law.
    (b) Except where otherwise provided by statutes or regulations, the 
Federal agency will charge interest on an overdue debt in accordance 
with the Federal Claims Collection Standards (4 CFR Ch. II). The date 
from which interest is computed is not extended by litigation or the 
filing of any form of appeal.

                         Entitlements [Reserved]



    Subpart D_Administrative Requirements for Grants and Cooperative 
                Agreements With For-Profit Organizations

    Source: 68 FR 50650, Aug. 21, 2003, unless otherwise noted.

                                 General



Sec. 600.301  Purpose.

    (a) This subpart prescribes administrative requirements for awards 
to for-profit organizations.
    (b) Applicability to prime awards and subawards is as follows:
    (1) Prime awards: DOE contracting officers must apply the provisions 
of this part to awards to for-profit organizations. Contracting officers 
must not impose requirements that are in addition to, or inconsistent 
with, the requirements provided in this part, except:
    (i) In accordance with the deviation procedures or special award 
conditions in Sec. 600.303 or Sec. 600.304, respectively; or
    (ii) As required by Federal statute, Executive order, or Federal 
regulation implementing a statute or Executive order.
    (2) Subawards. (i) Any legal entity (including any State, local 
government, university or other nonprofit organization, as well as any 
for-profit entity) that receives an award from DOE must apply the 
provisions of this part to subawards with for-profit organizations.
    (ii) For-profit organizations that receive prime awards covered by 
this part must apply to each subaward the administrative requirements 
that are applicable to the particular type of subrecipient (e.g., 10 CFR 
part 600, subpart B, contains requirements for institutions of higher 
education, hospitals, or other nonprofit organizations and 10 CFR part 
600, subpart C, specifies requirements for subrecipients that are States 
or local governments).



Sec. 600.302  Definitions.

    In addition to the definitions used in subpart A of this part, the 
following are definitions of terms as used in this subpart:
    Advance means a payment made by Treasury check or other appropriate 
payment mechanism to a recipient upon its request either before outlays 
are made by the recipient or through the use of predetermined payment 
schedules.

[[Page 153]]

    Applied research means efforts that seek to determine and exploit 
the potential of scientific discoveries or improvements in technology, 
and is directed toward the development of new materials, devices, 
methods, and processes.
    Basic research means efforts directed solely toward increasing 
knowledge or understanding in science and engineering.
    Cash contributions means the recipient's cash outlay, including the 
outlay of money contributed to the recipient by third parties.
    Closeout means the process by which DOE determines that all 
applicable administrative actions and all required work of the award 
have been completed by the recipient and DOE.
    Cost sharing or matching means that portion of project or program 
costs not borne by the Federal Government.
    Demonstration means a project designed to determine the technical 
feasibility and economic potential of a technology on either a pilot 
plant or a prototype scale.
    Development means efforts to create or advance new technology or 
demonstrate the viability of applying existing technology to new 
products and processes.
    Disallowed costs means those charges to an award that the DOE 
contracting officer determines to be unallowable, in accordance with the 
applicable Federal cost principles or other terms and conditions 
contained in the award.
    DOE means the Department of Energy, including the National Nuclear 
Security Administration (NNSA).
    Equipment means tangible, nonexpendable personal property charged 
directly to the award having a useful life of more than one year and an 
acquisition cost of $5,000 or more per unit.
    Excess property means property under the control of any DOE 
Headquarters or field office that, as determined by the head thereof, is 
no longer required for its needs or the discharge of its 
responsibilities.
    Federal funds authorized: means the total amount of Federal funds 
obligated by the Federal Government for use by the recipient. This 
amount may include any authorized carryover of unobligated funds from 
prior funding periods.
    Federally owned property means property in the possession of, or 
directly acquired by, the Government and subsequently made available to 
the recipient.
    Funding period means the period of time when Federal funding is 
available for obligation by the recipient.
    Incremental funding means a method of funding a grant or cooperative 
agreement where the funds initially obligated to the award are less than 
the total amount of the award, and DOE anticipates making additional 
obligations of funds when appropriated funds become available.
    Obligations means the amount of orders placed, contracts and grants 
awarded, services received and similar transactions during a given 
period that require payment by the recipient during the same or a future 
period.
    Outlays or expenditures means charges made to the project or 
program. They may be reported on cash or accrual basis. For reports 
prepared on a cash basis, outlays are the sum of cash disbursements for 
direct charges for goods and services, the amount of indirect expense 
charged, the value of third party in-kind contributions applied, and the 
amount of cash advances and payments made to subrecipients. For reports 
prepared on an accrual basis, outlays are the sum of cash disbursements 
for direct charges for goods and services, the amount of indirect 
expense incurred, the value of in-kind contributions applied, and the 
net increase (or decrease) in the amounts owed by the recipient for 
goods and other property received, for services performed by employees, 
contractors, subrecipients and other payees, and for other amounts 
becoming owed under programs for which no current services or 
performance are required.
    Personal property means property of any kind except real property. 
It may be:
    (1) Tangible, having physical existence (i.e., equipment and 
supplies); or
    (2) Intangible, having no physical existence, such as patents, 
copyrights, data, and software.
    Prior approval means written or electronic approval by an authorized 
official evidencing prior consent.

[[Page 154]]

    Program income means gross income earned by the recipient that is 
directly generated by a supported activity or earned as a result of the 
award. Program income includes, but is not limited to, income from fees 
for services performed, the use or rental of real or personal property 
acquired under federally-funded projects, the sale of commodities or 
items fabricated under an award, license fees and royalties on patents 
and copyrights, and interest on loans made with award funds. Interest 
earned on advances of Federal funds is not program income. Except as 
otherwise provided in program regulations or the terms and conditions of 
the award, program income does not include the receipt of principal on 
loans, rebates, credits, discounts, etc., or interest earned on any of 
them.
    Project costs means all allowable costs, as set forth in the 
applicable Federal cost principles, incurred by a recipient and the 
value of the contributions made by third parties in accomplishing the 
objectives of the award during the project period.
    Property means real property and personal property (equipment, 
supplies, and intellectual property), unless otherwise stated.
    Real property means land, including land improvements, structures 
and appurtenances thereto, but excludes movable machinery and equipment.
    Small award means an award not exceeding the simplified acquisition 
threshold fixed at 41 U.S.C. 403(11) (currently $100,000).
    Small business concern means a small business as defined at section 
2 of Pub. L. 85-536 (16 U.S.C. 632) and the implementing regulations of 
the Administrator of the Small Business Administration. The criteria and 
size standards for small business concerns are contained in 13 CFR part 
121.
    Subaward means financial assistance in the form of money, or 
property in lieu of money, provided under an award by a recipient to an 
eligible subrecipient or by a subrecipient to a lower tier subrecipient. 
The term includes financial assistance when provided by any legal 
agreement, even if the agreement is called a contract, but the term does 
not include procurement of goods and services or any form of assistance 
which is not included in the definition of ``award'' in this part.
    Subrecipient means the legal entity to which a subaward is made and 
which is accountable to the recipient for the use of the funds or 
property provided.
    Supplies means tangible, expendable personal property that is 
charged directly to the award and that has a useful life of less than 
one year or an acquisition cost of less than $5,000 per unit.
    Suspension means an action by DOE that temporarily withdraws Federal 
sponsorship under an award, pending corrective action by the recipient 
or pending a decision to terminate the award by DOE. Suspension of an 
award is a separate action from suspension of a recipient under 10 CFR 
part 1036.
    Termination means the cancellation of an award, in whole or in part, 
under an agreement at any time prior to either:
    (1) The date on which all work under an award is completed; or
    (2) The date on which Federal sponsorship ends, as provided in the 
award document or any supplement or amendment thereto.
    Third party in-kind contributions means the value of non-cash 
contributions provided by non-Federal third parties. Third party in-kind 
contributions may be in the form of real property, equipment, supplies 
and other expendable property, and the value of goods and services 
directly benefiting and specifically identifiable to the project or 
program.
    Unobligated balance means the portion of the funds authorized by DOE 
that has not been obligated by the recipient and is determined by 
deducting the cumulative obligations from the cumulative funds 
authorized.



Sec. 600.303  Deviations.

    (a) Individual deviations. Individual deviations affecting only one 
award are subject to the procedures stated in 10 CFR 600.4
    (b) Class deviations. Class deviations affecting more than one 
financial assistance transaction are subject to the procedures states in 
10 CFR 600.4.

[[Page 155]]



Sec. 600.304  Special award conditions.

    (a) Contracting officers may impose additional requirements as 
needed, over and above those provided in this subpart, if an applicant 
or recipient:
    (1) Has a history of poor performance;
    (2) Is not financially stable;
    (3) Has a management system that does not meet the standards 
prescribed in this subpart;
    (4) Has not conformed to the terms and conditions of a previous 
award; or
    (5) Is not otherwise responsible.
    (b) Before imposing additional requirements, DOE must notify the 
applicant or recipient in writing as to:
    (1) The nature of the additional requirements;
    (2) The reason why the additional requirements are being imposed;
    (3) The nature of the corrective action needed;
    (4) The time allowed for completing the corrective actions; and
    (5) The method for requesting reconsideration of the additional 
requirements imposed.
    (c) The contracting officer must remove any special conditions if 
the circumstances that prompted them have been corrected.



Sec. 600.305  Debarment and suspension.

    Recipients must comply with the nonprocurement debarment and 
suspension common rule implemented in 2 CFR 180 and 901. This common 
rule restricts subawards and contracts with certain parties that are 
debarred, suspended, or otherwise excluded from or ineligible for 
participation in Federal assistance programs or activities.

[68 FR 50650, Aug. 21, 2003, as amended at 74 FR 44278, Aug. 28, 2009]



Sec. 600.306  Metric system of measurement.

    (a) The Metric Conversion Act of 1975, as amended by the Omnibus 
Trade and Competitiveness Act of 1988 (15 U.S.C. 205) and implemented by 
Executive Order 12770, states that:
    (1) The metric system is the preferred measurement system for U.S. 
trade and commerce.
    (2) The metric system of measurement will be used, to the extent 
economically feasible, in Federal agencies' procurements, grants, and 
other business-related activities.
    (3) Metric implementation is not required if such use is likely to 
cause significant inefficiencies or loss of markets to United States 
firms.
    (b) Recipients are encouraged to use the metric system to the 
maximum extent practicable in measurement-sensitive activities and in 
measurement-sensitive outputs resulting from DOE funded programs.

                         Post-Award Requirements

                    Financial and Program Management



Sec. 600.310  Purpose of financial and program management.

    Sections 600.311 through 600.318 prescribe standards for financial 
management systems; methods for making payments; and rules for cost 
sharing and matching, program income, revisions to budgets and program 
plans, audits, allowable costs, and fee and profit.



Sec. 600.311  Standards for financial management systems.

    (a) Recipients are encouraged to use existing financial management 
systems to the extent that the systems comply with Generally Accepted 
Accounting Principles (GAAP) and the minimum standards in this section. 
At a minimum, a recipient's financial management system must provide:
    (1) Effective control of all funds. Control systems must be adequate 
to ensure that costs charged to Federal funds and those counted as the 
recipient's cost share or match are consistent with requirements for 
cost reasonableness, allowability, and allocability in the applicable 
cost principles (see Sec. 600.317) and in the terms and conditions of 
the award.
    (2) Accurate, current and complete records that document, for each 
project funded wholly or in part with Federal funds, the source and 
application of the Federal funds and the recipient's required cost share 
or match. These records must:
    (i) Contain information about receipts, authorizations, assets, 
expenditures, program income, and interest.
    (ii) Be adequate to make comparisons of outlays with amounts 
budgeted for

[[Page 156]]

each award (as required for programmatic and financial reporting under 
Sec. 600.341). Where appropriate, financial information should be 
related to performance and unit cost data.
    (3) To the extent that advance payments are authorized under Sec. 
600.312, procedures that minimize the time elapsing between the transfer 
of funds to the recipient from the Government and the recipient's 
disbursement of the funds for program purposes.
    (4) A system to support charges to Federal awards for salaries and 
wages, whether treated as direct or indirect costs. If employees work on 
multiple activities or cost objectives, a distribution of their salaries 
and wages must be supported by personnel activity reports which:
    (i) Reflect an after the fact distribution of the actual activity of 
each employee.
    (ii) Account for the total activity for which each employee is 
compensated.
    (iii) Are prepared at least monthly, and coincide with one or more 
pay periods.
    (b) If the Federal Government guarantees or insures the repayment of 
money borrowed by the recipient, DOE, at its discretion, may require 
adequate bonding and insurance if the bonding and insurance requirements 
of the recipient are not deemed adequate to protect the interest of the 
Federal Government.
    (c) DOE may require adequate fidelity bond coverage if the recipient 
lacks sufficient coverage to protect the Federal Government's interest.
    (d) If bonds are required in the situations described in paragraphs 
(b) and (c) of this section, the bonds must be obtained from companies 
holding certificates of authority as acceptable sureties, as prescribed 
in 31 CFR part 223, ``Surety Companies Doing Business with the United 
States.''



Sec. 600.312  Payment.

    (a) Methods available. Payment methods for awards with for-profit 
organizations are:
    (1) Reimbursement. Under this method, the recipient requests 
reimbursement for costs incurred during a particular time period. In 
cases where the recipient submits requests for payment to the 
contracting officer, the DOE payment office reimburses the recipient by 
electronic funds transfer after approval of the request by the 
designated contracting officer.
    (2) Advance payments. Under this method, DOE makes a payment to a 
recipient based upon projections of the recipient's cash needs. The 
payment generally is made upon the recipient's request, although 
predetermined payment schedules may be used when the timing of the 
recipient's needs to disburse funds can be predicted in advance with 
sufficient accuracy to ensure compliance with paragraph (b)(2)(iii) of 
this section.
    (b) Selecting a method. (1) The preferred payment method is the 
reimbursement method, as described in paragraph (a)(1) of this section.
    (2) Advance payments, as described in paragraph (a)(2) of this 
section, may be used in exceptional circumstances, subject to the 
following conditions:
    (i) The contracting officer, in consultation with the program 
official, determines in writing that advance payments are necessary or 
will materially contribute to the probability of success of the project 
contemplated under the award (e.g., as startup funds for a project 
performed by a newly formed company).
    (ii) Cash advances must be limited to the minimum amounts needed to 
carry out the program.
    (iii) Recipients and DOE must maintain procedures to ensure that the 
timing of cash advances is as close as is administratively feasible to 
the recipients' disbursements of the funds for program purposes, 
including direct program or project costs and the proportionate share of 
any allowable indirect costs.
    (iv) Recipients must maintain advance payments of Federal funds in 
interest-bearing accounts, and remit annually the interest earned to the 
contracting officer for return to the Department of Treasury's 
miscellaneous receipts account, unless one of the following applies:
    (A) The recipient receives less than $120,000 in Federal awards per 
year.

[[Page 157]]

    (B) The best reasonably available interest bearing account would not 
be expected to earn interest in excess of $250 per year on Federal cash 
balances.
    (C) The depository would require an average or minimum balance so 
high that establishing an interest bearing account would not be 
feasible, given the expected Federal and non-Federal cash resources.
    (c) Frequency of payments. For either reimbursements or advance 
payments, recipients may submit requests for payment monthly, or more 
often if authorized by the contracting officer.
    (d) Forms for requesting payment. DOE may authorize recipients to 
use the SF-270, ``Request for Advance or Reimbursement;'' the SF-271, 
``Outlay Report and Request for Reimbursement for Construction 
Programs;'' or prescribe other forms or formats as necessary.
    (e) Timeliness of payments. Payments normally will be made within 30 
calendar days of the receipt of a recipient's request for reimbursement 
or advance by the office designated to receive the request, unless the 
billing is improper.
    (f) Precedence of other available funds. Recipients must disburse 
funds available from program income, rebates, refunds, contract 
settlements, audit recoveries, credits, discounts, and interest earned 
on such funds before requesting additional cash payments.
    (g) Withholding of payments. Unless otherwise required by statute, 
contracting officers may not withhold payments for proper charges made 
by recipients during the project period for reasons other than the 
following:
    (1) A recipient failed to comply with project objectives, the terms 
and conditions of the award, or Federal reporting requirements, in which 
case the contracting officer may suspend payments in accordance with 
Sec. 600.352.
    (2) The recipient is delinquent on a debt to the United States (see 
definitions of ``debt'' and ``delinquent debt'' in 32 CFR 22.105). In 
that case, the contracting officer may, upon reasonable notice, withhold 
payments to the recipient until the debt owed is resolved.



Sec. 600.313  Cost sharing or matching.

    (a) Acceptable contributions. All contributions, including cash 
contributions and third party in-kind contributions, must be accepted as 
part of the recipient's cost sharing or matching if such contributions 
meet all of the following criteria:
    (1) They are verifiable from the recipient's records.
    (2) They are not included as contributions for any other federally-
assisted project or program.
    (3) They are necessary and reasonable for proper and efficient 
accomplishment of project or program objectives.
    (4) They are allowable under Sec. 600.317.
    (5) They are not paid by the Federal Government under another award 
unless authorized by Federal statute to be used for cost sharing or 
matching.
    (6) They are provided for in the approved budget.
    (7) They conform to other provisions of this part, as applicable.
    (b) Valuing and documenting contributions--(1) Valuing recipient's 
property or services of recipient's employees. Values are established in 
accordance with the applicable cost principles in Sec. 600.317, which 
means that amounts chargeable to the project are determined on the basis 
of costs incurred. For real property or equipment used on the project, 
the cost principles authorize depreciation or use charges. The full 
value of the item may be applied when the item will be consumed in the 
performance of the award or fully depreciated by the end of the award. 
In cases where the full value of a donated capital asset is to be 
applied as cost sharing or matching, that full value must be the lesser 
or the following:
    (i) The certified value of the remaining life of the property 
recorded in the recipient's accounting records at the time of donation; 
or
    (ii) The current fair market value. If there is sufficient 
justification, the contracting officer may approve the use of the 
current fair market value of the donated property, even if it exceeds 
the certified value at the time of donation to the project. The 
contracting officer may accept the use of any reasonable basis for 
determining the fair market value of the property.
    (2) Valuing services of others' employees. If an employer other than 
the recipient furnishes the services of an employee, those services are 
valued at the

[[Page 158]]

employee's regular rate of pay plus an amount of fringe benefits and 
overhead (at an overhead rate appropriate for the location where the 
services are performed), provided these services are in the same skill 
for which the employee is normally paid.
    (3) Valuing volunteer services. Volunteer services furnished by 
professional and technical personnel, consultants, and other skilled and 
unskilled labor may be counted as cost sharing or matching if the 
service is an integral and necessary part of an approved project or 
program. Rates for volunteer services must be consistent with those paid 
for similar work in the recipient's organization. In those markets in 
which the required skills are not found in the recipient organization, 
rates must be consistent with those paid for similar work in the labor 
market in which the recipient competes for the kind of services 
involved. In either case, paid fringe benefits that are reasonable, 
allowable, and allocable may be included in the valuation.
    (4) Valuing property donated by third parties. (i) Donated supplies 
may include such items as office supplies or laboratory supplies. Value 
assessed to donated supplies included in the cost sharing or matching 
share must be reasonable and must not exceed the fair market value of 
the property at the time of the donation.
    (ii) Normally only depreciation or use charges for equipment and 
buildings may be applied. However, the fair rental charges for land and 
the full value of equipment or other capital assets may be allowed, when 
they will be consumed in the performance of the award or fully 
depreciated by the end of the award, provided that the contracting 
officer has approved the charges. When use charges are applied, values 
must be determined in accordance with the usual accounting policies of 
the recipient, with the following qualifications:
    (A) The value of donated space must not exceed the fair rental value 
of comparable space as established by an independent appraisal of 
comparable space and facilities in a privately-owned building in the 
same locality.
    (B) The value of loaned equipment must not exceed its fair rental 
value.
    (5) Documentation. The following requirements pertain to the 
recipient's supporting records for in-kind contributions from third 
parties:
    (i) Volunteer services must be documented and, to the extent 
feasible, supported by the same methods used by the recipient for its 
own employees.
    (ii) The basis for determining the valuation for personal services 
and property must be documented.



Sec. 600.314  Program income.

    (a) DOE must apply the standards in this section to the disposition 
of program income from projects financed in whole or in part with 
Federal funds.
    (b) Unless program regulations or the terms and conditions of the 
award provide otherwise, recipients, without any further accounting to 
DOE, may retain program income earned:
    (1) From license fees and royalties for copyrighted material, 
patents, patent applications, trademarks, and inventions produced under 
an award.
    (2) After the end of the project period.
    (c) Unless program regulations or the terms and conditions of the 
award provide otherwise, costs incident to the generation of program 
income for which there is some obligation to the Government may be 
deducted from gross income to determine program income, provided these 
costs have not been charged to the award.
    (d) Other than any program income excluded pursuant to paragraph (b) 
and (c) of this section, program income earned during the project period 
must be retained by the recipient and used in one or more of the 
following ways, as specified in program regulations or the terms and 
conditions of the award:
    (1) Added to funds committed to the project by DOE and recipient and 
used to further eligible project or program objectives.
    (2) Used to finance the non-Federal share of the project or program.
    (3) Deducted from the total project or program allowable cost in 
determining the net allowable costs on which the Federal share of costs 
is based.
    (e) If the program regulation or terms and conditions of an award 
authorize the disposition of program income as described in paragraph 
(d)(1)

[[Page 159]]

or (d)(2) of this section, and stipulate a limit on the amounts that may 
be used in those ways, program income in excess of the stipulated limits 
must be used in accordance with paragraph (d)(3) of this section.
    (f) In the event that the program regulation or terms and conditions 
of the award do not specify how program income is to be used, paragraph 
(d)(3) of this section applies automatically to all projects or programs 
except research. For awards that support basic or applied research, 
paragraph (d)(1) of this section applies automatically unless the terms 
and conditions specify another alternative or the recipient is subject 
to special award conditions, as indicated in Sec. 600.304.
    (g) Proceeds from the sale of property that is acquired, rather than 
fabricated, under an award are not program income and must be handled in 
accordance with the requirements of Sec. Sec. 600.320 through 600.325 
of this part.



Sec. 600.315  Revision of budget and program plans.

    (a) The budget plan is the financial expression of the project or 
program as approved during the award process. It includes the sum of the 
Federal and non-Federal shares when there are cost sharing requirements. 
The budget plan must be related to performance for program evaluation 
purposes, whenever appropriate.
    (b) The recipient must obtain the contracting officer's prior 
approval if a revision is necessary for either of the following two 
reasons:
    (1) A change in the scope or the objective of the project or program 
(even if there is no associated budget revision requiring prior written 
approval).
    (2) A need for additional Federal funding.
    (c) The recipient must obtain the contracting officer's prior 
approval if a revision is necessary for any of the following six 
reasons, unless the requirement for prior approval is specifically 
waived in the program regulation or terms and conditions of the award:
    (1) A change in the approved project director, principal 
investigator, or other key person specified in the application or award 
document.
    (2) The absence for more than three months, or a 25 percent 
reduction in time devoted to the project, by the approved project 
director or principal investigator.
    (3) The inclusion of any additional costs that require prior 
approval in accordance with the applicable costs principles for Federal 
funds and the requirements applicable to the recipient's cost share or 
match, as provided in Sec. 600.313 and Sec. 600.317, respectively.
    (4) The inclusion of pre-award costs for periods greater than the 90 
calendar days immediately preceding the effective date of the award.
    (5) A ``no-cost'' extension of the project period.
    (6) Any subaward, transfer, or contracting out of substantive 
program performance under an award, unless described in the application 
and funded in the approved awards.
    (d) If specifically required in the program regulation or the terms 
and conditions of the award, the recipient must obtain the contracting 
officer's prior approval for the following revisions:
    (1) The transfer of funds among direct cost categories, functions, 
and activities for awards in which the Federal share of the project 
exceeds $100,000 and the cumulative amount of such transfers exceeds or 
is expected to exceed 10 percent of the total budget as last approved by 
DOE.
    (2) For awards that provide support for both construction and 
nonconstruction work, any fund or budget transfers between the two types 
of work supported.
    (e) Within 30 calendar days from the date of receipt of the 
recipient's request for budget revisions, the contracting officer must 
review the request and notify the recipient whether the budget revisions 
have been approved. If the revision is still under consideration at the 
end of 30 calendar days, the contracting officer must inform the 
recipient in writing of the date when the recipient may expect the 
decision.



Sec. 600.316  Audits.

    (a) Any recipient that expends $500,000 or more in a year under 
Federal awards must have an audit made

[[Page 160]]

for that year by an independent auditor, in accordance with paragraph 
(b) of this section. If a recipient is currently performing under a 
Federal award that requires an audit by its Federal cognizant agency, 
that auditor must perform the independent audit. The audit generally 
should be made a part of the regularly scheduled, annual audit of the 
recipient's financial statements. However, it may be more economical in 
some cases to have Federal awards separately audited, and a recipient 
may elect to do so, unless that option is precluded by award terms and 
conditions or by Federal laws or regulations applicable to the 
program(s) under which the awards were made.
    (b) The auditor must determine and report on whether:
    (1) The recipient has an internal control structure that provides 
reasonable assurance that it is managing Federal awards in compliance 
with Federal laws and regulations and the terms and conditions of the 
awards.
    (2) Based on a sampling of Federal award expenditures, the recipient 
has complied with laws, regulations, and award terms that may have a 
direct and material effect on Federal awards.
    (c) The recipient must make the auditor's report available to the 
DOE contracting officers whose awards are affected.
    (d) Before requesting an audit in addition to the independent audit, 
the contracting officer must:
    (1) Consider whether the independent audit satisfies his or her 
requirements;
    (2) Limit the scope of such additional audit to areas not adequately 
addressed by the independent audit; and
    (3) If DOE is not the Federal agency with the predominant fiscal 
interest in the recipient, coordinate with the agency that has the 
predominant fiscal interest.
    (e) The recipient and its Federal cognizant agency for audit should 
develop a coordinated audit approach to minimize duplication of audit 
work.
    (f) Audit costs (including a reasonable allocation of the costs of 
the audit of the recipient's financial statement, based on the relative 
benefit to the Government and the recipient) are allowable costs of DOE 
awards.



Sec. 600.317  Allowable costs.

    (a) DOE determines allowability of costs in accordance with the cost 
principles applicable to the type of entity incurring the cost as 
follows:
    (1) For-profit organizations. Allowability of costs incurred by for-
profit organizations and those nonprofit organizations listed in 
Attachment C to OMB Circular A-122 is determined in accordance with the 
for-profit costs principles in 48 CFR part 31 in the Federal Acquisition 
Regulation, except that patent prosecution costs are not allowable 
unless specifically authorized in the award document.
    (2) Other types of organizations. Allowability of costs incurred by 
other types of organizations that may be subrecipients under a prime 
award to a for-profit organization is determined as follows:
    (i) Institutions of higher education. Allowability is determined in 
accordance with OMB Circular A-21, ``Cost Principles for Educational 
Institutions.''
    (ii) Other nonprofit organizations. Allowability is determined in 
accordance with OMB Circular A-122, ``Cost Principles for Nonprofit 
Organizations.''
    (iii) Hospitals. Allowability is determined in accordance with the 
provisions of 45 CFR part 74, Appendix E, ``Principles for Determining 
Costs Applicable to Research and Development Under Grants and Contracts 
with Hospitals.''
    (iv) Governmental organizations. Allowability for State, local, or 
federally recognized Indian tribal government is determined in 
accordance with OMB Circular A-87, ``Cost Principles for State and Local 
Governments.''
    (b) Pre-award costs. If a recipient incurs pre-award costs without 
the prior approval of the contracting officer, DOE may pay those costs 
incurred within the ninety calendar day period immediately preceding the 
effective date of the award, if such costs are:
    (1) Necessary for the effective and economical conduct of the 
project;
    (2) Otherwise allowable in accordance with the applicable cost 
principles; and
    (3) Less than the total value of the award.

[[Page 161]]



Sec. 600.318  Fee and profit.

    (a) Grants and cooperative agreements may not provide for the 
payment of fee or profit to recipients or subrecipients, except for 
awards made pursuant to the Small Business Innovation Research or Small 
Business Technology Transfer Research programs.
    (b) A recipient or subrecipient may pay a fee or profit to a 
contractor providing goods or services under a contract.

                           Property Standards



Sec. 600.320  Purpose of property standards.

    Sections 600.321 through 600.325 set forth uniform standards for 
management, use, and disposition of property. DOE encourages recipients 
to use existing property-management systems to the extent that the 
systems meet these minimum requirements.



Sec. 600.321  Real property and equipment.

    (a) Prior approvals for acquisition with Federal funds. Recipients 
may purchase real property or equipment in whole or in part with Federal 
funds under an award only with the prior approval of the contracting 
officer.
    (b) Title. Unless a statute specifically authorizes and the award 
specifies that title to property vests unconditionally in the recipient, 
title to real property or equipment vests in the recipient subject to 
the conditions that the recipient:
    (1) Use the real property or equipment for the authorized purposes 
of the project until funding for the project ceases, or until the 
property is no longer needed for the purposes of the project;
    (2) Not encumber the property without approval of the contracting 
officer; and
    (3) Use and dispose of the property in accordance with paragraphs 
(d) and (e) of this section.
    (c) Federal interest in real property or equipment offered as cost-
share. A recipient may offer the full value of real property or 
equipment that is purchased with recipient's funds or that is donated by 
a third party to meet a portion of any required cost sharing or 
matching, subject to the requirements in Sec. 600.313. If a resulting 
award includes such property as a portion of the recipient's cost share, 
the Government has a financial interest in the property, (i.e., a share 
of the property value equal to the Federal participation in the 
project). The property is considered as if it had been acquired in part 
with Federal funds, and is subject to the provisions of paragraphs 
(b)(1), (b)(2), and (b)(3) of this section and to the provisions of 
Sec. 600.323.
    (d) Insurance. Recipients must, at a minimum, provide the equivalent 
insurance coverage for real property and equipment acquired with DOE 
funds as provided to property owned by the recipient.
    (e) Use. If real property or equipment is acquired in whole or in 
part with Federal funds under an award and the award does not specify 
that title vests unconditionally in the recipient, the real property or 
equipment is subject to the following:
    (1) During the time that the real property or equipment is used on 
the project or program for which it was acquired, the recipient must 
make it available for use on other projects or programs, if such other 
use does not interfere with the work on the project or program for which 
the real property or equipment was originally acquired. Use of the real 
property or equipment on other projects is subject to the following 
order of priority:
    (i) Activities sponsored by DOE grants, cooperative agreements, or 
other assistance awards;
    (ii) Activities sponsored by other Federal agencies' grants, 
cooperative agreements, or other assistance awards;
    (iii) Activities under Federal procurement contracts or activities 
not sponsored by any Federal agency. If so used, use charges must be 
assessed to those activities. For real property or equipment, the use 
charges must be at rates equivalent to those for which comparable real 
property or equipment may be leased.
    (2) After Federal funding for the project ceases or if the real 
property or equipment is no longer needed for the purposes of the 
project, the recipient

[[Page 162]]

may use the real property or equipment for other projects, insofar as:
    (i) There are Federally sponsored projects for which the real 
property or equipment may be used. If the only use for the real property 
or equipment is for projects that have no Federal sponsorship, the 
receipt must proceed with disposition of the real property or equipment, 
in accordance with paragraph (f) of this section.
    (ii) The recipient obtains written approval from the contracting 
officer to do so. The contracting officer must ensure that there is a 
formal change of accountability for the real property or equipment to a 
currently funded, Federal award.
    (iii) The recipient's use of the real property or equipment for 
other projects is in the same order of priority as described in 
paragraph (e)(1) of this section.
    (f) Disposition. (1) If an item of real property or equipment is no 
longer needed for Federally sponsored projects, the recipient has the 
following options:
    (i) If the property is equipment with a current per unit fair market 
value of less than $5,000, it may be retained, sold, or otherwise 
disposed of with no further obligation to DOE.
    (ii) If the property that is no longer needed is equipment (rather 
than real property), the recipient may wish to replace it with an item 
that is needed currently for the project by trading in or selling to 
offset the costs of the replacement equipment, subject to the approval 
of the contracting officer.
    (iii) The recipient may elect to retain title, without further 
obligation to the Federal Government, by compensating the Federal 
Government for that percentage of the current fair market value of the 
real property or equipment that is attributable to the Federal 
participation in the project.
    (iv) If the recipient does not elect to retain title to real 
property or equipment or does not request approval to use equipment as 
trade-in or offset for replacement equipment, the recipient must request 
disposition instructions from the responsible agency.
    (2) If a recipient requests disposition instructions, the 
contracting officer must:
    (i) For equipment (but not real property), consult with the DOE 
Project Director to determine whether the condition and nature of the 
equipment warrant excess screening within DOE. If screening is 
warranted, the equipment will be made available for reutilization within 
DOE through the Energy Asset Disposal System (EADS). If no DOE 
requirement is identified within a 30-day period, EADS automatically 
reports the availability of the equipment to the General Services 
Administration, to determine whether a requirement for the equipment 
exists in other Federal agencies.
    (ii) For either real property or equipment, issue instructions to 
the recipient for disposition of the property no later than 120 calendar 
days after the recipient's request. The contracting officer's options 
for disposition are to direct the recipient to:
    (A) Transfer title to the real property or equipment to the Federal 
Government or to an eligible third party provided that, in such cases, 
the recipient is entitled to compensation for its attributable 
percentage of the current fair market value of the real property or 
equipment, plus any reasonable shipping or interim storage costs 
incurred.
    (B) Sell the real property or equipment and pay the Federal 
Government for that percentage of the current fair market value of the 
property that is attributable to the Federal participation in the 
project (after deducting actual and reasonable selling and fix-up 
expenses, if any, from the sale proceeds). If the recipient is 
authorized or required to sell the real property or equipment, the 
recipient must use competitive procedures that result in the highest 
practicable return.
    (3) If the responsible agency fails to issue disposition 
instructions within 120 calendar days of the recipient's request, the 
recipient must dispose of the real property or equipment through the 
option described in paragraph (f)(2)(ii)(B) of this section.



Sec. 600.322  Federally owned property.

    (a) Annual inventory. The recipient must submit annually to the 
contracting officer an inventory listing of

[[Page 163]]

all Federally owned property in its custody, i.e., property furnished by 
the Federal Government, rather than acquired by the recipient with 
Federal funds under the award.
    (b) Insurance. The recipient may not insure Federally owned property 
unless required by the terms and conditions of the award.
    (c) Use on other activities. (1) Use of federally owned property on 
other activities is permissible, if authorized by the contracting 
officer responsible for administering the award to which the property 
currently is charged.
    (2) Use on other activities must be in the following order of 
priority:
    (i) Activities sponsored by DOE grants, cooperative agreements, or 
other assistance awards;
    (ii) Activities sponsored by other Federal agencies' grants, 
cooperative agreements, or other assistance awards;
    (iii) Activities under Federal procurement contracts or activities 
not sponsored by any Federal agency. If so used, use charges must be 
assessed to those activities. For real property or equipment, the use 
charges must be at rates equivalent to those for which comparable real 
property or equipment may be leased.
    (d) Disposition or property. Upon completion of the award, the 
recipient must submit to the contracting officer a final inventory of 
Federal owned property. DOE may:
    (1) Use the property to meet another Federal Government need (e.g., 
by transferring accountability for the property to another Federal award 
to the same recipient, or by directing the recipient to transfer the 
property to a Federal agency that needs the property or to another 
recipient with a currently funded award).
    (2) Declare the property to be excess property and either:
    (i) Report the property to the General Services Administration 
through EADS, in accordance with the Federal Property and Administrative 
Services Act of 1949 (40 U.S.C. 483(b)(2)), as implemented by General 
Services Administration regulations at 41 CFR 101-47.202; or
    (ii) Dispose of the property by alternative methods, if there is 
authority under law, such as 15 U.S.C. 3710(i).



Sec. 600.323  Property management system.

    The recipient's property management system must include the 
following:
    (a) Property records must be maintained, to include the following 
information for property that is Federally owned, equipment that is 
acquired in whole or in part with Federal funds, or property or 
equipment that is used as cost sharing or matching:
    (1) A description of the property.
    (2) Manufacturer's serial number, model number, Federal stock 
number, national stock number, or any other identification number.
    (3) Source of the property, including the award number.
    (4) Whether title vests in the recipient or the Federal Government.
    (5) Acquisition date (or date received, if the property was 
furnished by the Federal Government) and cost.
    (6) Information from which one can calculate the percentage of 
Federal participation in the cost of the property (not applicable to 
property furnished by the Federal Government).
    (7) The location and condition of the property and the date the 
information was reported.
    (8) Ultimate disposition data, including data of disposal and sales 
price or the method used to determine current fair market value where a 
recipient compensates the Federal Government for its share.
    (b) Federal owned equipment must be marked to indicate Federal 
ownership.
    (c) A physical inventory must be taken and the results reconciled 
with the property records at least once every two years. Any differences 
between quantities determined by the physical inspection and those shown 
in the accounting records must be investigated to determine the causes 
of the difference. The recipient must, in connection with the inventory, 
verify the existence, current utilization, and continued need for the 
property.
    (d) A control system must be in effect to insure adequate safeguards 
to prevent loss, damage, or theft of the property. Any loss, damage, or 
theft of

[[Page 164]]

property must be investigated and fully documented. If the property is 
owned by the Federal Government, the recipient must promptly notify the 
Federal agency responsible for administering the property.
    (e) Adequate maintenance procedures must be implemented to keep the 
property in good condition.



Sec. 600.324  Supplies.

    (a) Title vests in the recipient upon acquisition of supplies 
acquired with Federal funds under an award.
    (b) Upon termination or completion of the project or program, the 
recipient may retain any unused supplies. If the inventory of unused 
supplies exceeds $5,000 in total aggregate value and the items are not 
needed for any other Federally sponsored project or program, the 
recipient may retain the items for use on non-Federal sponsored 
activities or sell them, but must, in either case, compensate the 
Federal Government for its share.



Sec. 600.325  Intellectual property.

    (a) Scope. This section sets forth the policies with regard to 
disposition of rights to data and to inventions conceived or first 
actually reduced to practice in the course of, or under, a grant or 
cooperative agreement with DOE.
    (b) Patents right--small business concerns. In accordance with 35 
U.S.C. 202, if the recipient is a small business concern and receives a 
grant, cooperative agreement, subaward, or contract for research, 
developmental, or demonstration activities, then, unless there are 
``exceptional circumstances'' as described in 35 U.S.C. 202(e), the 
award must contain the standard clause in appendix A to this subpart, 
entitled ``Patents Rights (Small Business Firms and Nonprofit 
Organizations'' which provides to the recipient the right to elect 
ownership of inventions made under the award.
    (c) Patent rights--other than small business concerns, e.g., large 
businesses--(1) No Patent Waiver. Except as provided by paragraph (c)(2) 
of this section, if the recipient is a for-profit organization other 
than a small business concern, as defined in 35 U.S.C. 201(h) and 
receives an award or a subaward for research, development, and 
demonstration activities, then, pursuant to statute, the award must 
contain the standard clause in appendix A to this subpart, entitled 
``Patent Rights (Large Business Firms)--No Waiver'' which provides that 
DOE owns the patent rights to inventions made under the award.
    (2) Patent Waiver Granted. Paragraph (c)(1) of this section does not 
apply if:
    (i) DOE grants a class waiver for a particular program under 10 CFR 
part 784;
    (ii) The applicant requests and receives an advance patent waiver 
under 10 CFR part 784; or
    (iii) A subaward is covered by a waiver granted under the prime 
award.
    (3) Special Provision. Normally, an award will not include a 
background patent and data provision. However, under special 
circumstances, in order to provide heightened assurance of 
commercialization, a provision providing for a right to require 
licensing of third parties to background inventions, limited rights data 
and/or restricted computer software, may be included. Inclusion of a 
background patent and/or a data provision to assure commercialization 
will be done only with the written concurrence of the DOE program 
official setting forth the need for such assurance. An award may include 
the right to license the Government and third party contractors for 
special Government purposes when future availability of the technology 
would also benefit the government, e.g., clean-up of DOE facilities. The 
scope of any such background patent and/or data licensing provision is 
subject to negotiation.
    (d) Rights in data--general rule. (1) Subject to paragraphs (d)(2) 
and (3) of this section, and except as otherwise provided by paragraphs 
(e) and (f) of this section or other law, any award under this subpart 
must contain the standard clause in appendix A to this subpart, entitled 
``Rights in Data--General''.
    (2) Normally, an award will not require the delivery of limited 
rights data or restricted computer software. However, if the contracting 
officer, in consultation with DOE patent counsel

[[Page 165]]

and the DOE program official, determines that delivery of limited rights 
data or restricted computer software is necessary, the contracting 
officer, after negotiation with the applicant, may insert in the award 
the standard clause as modified by Alternates I and/or II set forth in 
appendix A to this subpart.
    (3) If software is specified for delivery to DOE, or if other 
special circumstances exist, e.g., DOE specifying ``open-source'' 
treatment of software, then the contracting officer, after negotiation 
with the recipient, may include in the award special provisions 
requiring the recipient to obtain written approval of the contracting 
officer prior to asserting copyright in the software, modifying the 
retained Government license, and/or otherwise altering the copyright 
provisions.
    (e) Rights in data--programs covered under special protected data 
statutes. (1) If a statute, other than those providing for the Small 
Business Innovation Research (SBIR) and Small Business Technology 
Transfer Research (STTR) programs, provides for a period of time, 
typically up to five years, during which data produced under an award 
for research, development, and demonstration may be protected from 
public disclosure, then the contracting officer must insert in the award 
the standard clause in appendix A to this subpart entitled ``Rights in 
Data--Programs Covered Under Special Protected Data Statutes'' or, as 
determined in consultation with DOE patent counsel and the DOE program 
official, a modified version of such clause which may identify data or 
categories of data that the recipient must make available to the public.
    (2) An award under paragraph (e)(1) of this section is subject to 
the provisions of paragraphs (d)(2) and (3) of this section.
    (f) Rights in data--SBIR/STTR programs. (1) If an applicant receives 
an award under the SBIR or STTR program, then the contracting officer 
must insert in the award the standard data clause in the General Terms 
and Conditions for SBIR Grants, entitled ``Rights in Data--SBIR 
Program''.
    (2) The data rights provisions for SBIR/STTR grants are contained in 
the award terms and conditions for SBIR grants located at http://e-
center.doe.gov on the Professionals Homepage under Financial Assistance, 
Regulations and Guidance.
    (g) Authorization and consent. (1) Work performed by a recipient 
under a grant is not subject to authorization and consent to the use of 
a patented invention, and the Government assumes no liability for patent 
infringement by the recipient under 28 U.S.C. 1498.
    (2) Work performed by a recipient under a cooperative agreement is 
subject to authorization and consent to the use of a patented invention 
consistent with the principles set forth in 48 CFR 27.201-1.
    (3) The contracting officer, in consultation with patent counsel, 
may also include clauses in the cooperative agreement addressing other 
patent matters related to authorization and consent, such as patent 
indemnification of the Government by recipient and notice and assistance 
regarding patent and copyright infringement. The policies and clauses 
for these other patent matters will be the same or consistent with those 
in 48 CFR part 927.

                          Procurement Standards



Sec. 600.330  Purpose of procurement standards.

    Section 600.331 sets forth requirements necessary to ensure:
    (a) Recipients' procurements that use Federal funds comply with 
applicable Federal statutes, regulations, and executive orders.
    (b) Proper stewardship of Federal funds used in recipients' 
procurements.



Sec. 600.331  Requirements.

    The following requirements pertain to recipients' procurements 
funded in whole or in part with Federal funds or with recipients' cost-
share or match:
    (a) Reasonable cost. Recipients' procurement procedures must use 
best commercial practices to ensure reasonable cost for procured goods 
and services. Recipients are encouraged to buy commercial items, if 
practicable.
    (b) Pre-award review of certain procurements. If the contracting 
officer determines that there is a compelling need

[[Page 166]]

to perform a pre-award review of a specific transaction and the terms of 
the award identify the specific transaction and provide for such a 
review, then the recipient must obtain the contracting officer's 
approval prior to awarding the transaction and must provide the 
contracting officer the following documents to review:
    (1) Request for proposals or invitation to bid, if any;
    (2) Cost estimate;
    (3) Proposal/bid;
    (4) Proposed award document; and
    (5) Summary of negotiations or justification for award.
    (c) Contract provisions. (1) Contracts in excess of the simplified 
acquisition threshold must contain contractual provisions or conditions 
that allow for administrative, contractual, or legal remedies in 
instances in which a contractor violates or breaches the contract terms, 
and provide for such remedial actions as may be appropriate.
    (2) All contracts in excess of the simplified acquisition threshold 
must contain suitable provisions for termination for default by the 
recipient and for termination due to circumstances beyond the control of 
the contractor.
    (3) All negotiated contracts in excess of the simplified acquisition 
threshold must include a provision permitting access of DOE, the 
Inspector General, the Comptroller General of the United States, or any 
of their duly authorized representatives, to any books, documents, 
papers, and records of the contractor that are directly pertinent to a 
specific programs, for the purpose of making audits, examinations, 
excerpts, transcriptions, and copies of such documents.
    (4) All contracts, including those for amounts less than the 
simplified acquisition threshold, awarded by recipients and their 
contractors must contain the procurement provisions of Appendix B to 
this subpart, as applicable.
    (d) Recipient responsibilities. The recipient is the responsible 
authority, without recourse to DOE, regarding the settlement and 
satisfaction of all contractual and administrative issues arising out of 
procurements entered into in support of an award. This includes 
disputes, claims, protests of award, source evaluation or other matters 
of a contractual nature. The recipient should refer matters concerning 
violations of statutes to such Federal, State or local authority as may 
have proper jurisdiction.

                           Reports and Records



Sec. 600.340  Purpose of reports and records.

    Sections 600.341 and 600.342 prescribe requirements for monitoring 
and reporting financial and program performance and for records 
retention.



Sec. 600.341  Monitoring and reporting program and financial performance.

    (a) The terms and conditions of the award prescribe the reporting 
requirements, the frequency, and the due dates for reports. At a 
minimum, requirements must include:
    (1) Periodic progress reports (at least annually, but no more 
frequently than quarterly) addressing both program status and business 
status, as follows:
    (i) The program portions of the reports must address progress toward 
achieving program performance goals and milestones, including current 
issues, problems, or developments.
    (ii) The business portions of the reports must provide summarized 
details on the status of resources (Federal funds and non-Federal cost 
sharing or matching), including an accounting of expenditures for the 
period covered by the report. The report should compare the resource 
status with any payment and expenditure schedules or plans provided in 
the original award, explain any major deviations from those schedules, 
and discuss actions that will be taken to address the deviations.
    (2) A final technical report if the award is for research and 
development.
    (b) If the contracting officer previously authorized advance 
payments, pursuant to Sec. 600.312(a)(2), he/she should consult with 
the DOE project director and consider whether program progress reported 
in the periodic progress report, in relation to reported expenditures, 
is sufficient to justify continued authorization of advance payments.

[[Page 167]]



Sec. 600.342  Retention and access requirements for records.

    (a) This section sets forth requirements for records retention and 
access to records for awards to recipients and subrecipients.
    (b) Financial records, supporting documents, statistical records, 
and all other records pertinent to an award must be retained for a 
period of three years from the date of submission of the final 
expenditure report. The only exceptions are the following.
    (1) If any litigation, claim, or audit is started before the 
expiration of the 3-year period, the records must be retained until all 
litigation, claims, or audit findings involving the records have been 
resolved and final action taken.
    (2) Records for real property and equipment acquired with Federal 
funds must be retained for 3 years after final disposition.
    (3) If records are transferred to or maintained by DOE, the 3-year 
retention requirement is not applicable to the recipient.
    (4) Indirect cost rate proposals, cost allocation plans, and related 
records must be retained in accordance with the requirements specified 
in paragraph (g) of this section.
    (c) Copies of original records may be substituted for the original 
records if authorized by the contracting officer.
    (d) The contracting officer may request that recipients transfer 
certain records to DOE custody if he or she determines that the records 
possess long term retention value. However, in order to avoid duplicate 
recordkeeping, a contracting officer may make arrangements for 
recipients to retain any records that are continuously needed for joint 
use.
    (e) DOE, the Inspector General, Comptroller General of the United 
States, or any of their duly authorized representatives, have the right 
of timely and unrestricted access to any books, documents, papers, or 
other records of recipients that are pertinent to the awards, in order 
to make audits, examinations, excerpts, transcripts and copies of such 
documents. This right also includes timely and reasonable access to a 
recipient's personnel for the purpose of interview and discussion 
related to such documents. The rights of access in this paragraph are 
not limited to the required retention period, but must last as long as 
records are retained.
    (f) Unless required by statute, DOE must not place restrictions on 
recipients that limit public access to the records of recipients that 
are pertinent to an award, except when DOE can demonstrate that such 
records would be kept confidential and would be exempt from disclosure 
pursuant to the Freedom of Information Act (5 U.S.C. 552) if the records 
belonged to DOE.
    (g) Indirect cost proposals, cost allocation plans, and other cost 
accounting documents (such as documents related to computer usage 
chargeback rates), along with their supporting records, must be retained 
for a 3-year period, as follows:
    (1) If the recipient or the subrecipient is required to submit an 
indirect-cost proposal, cost allocation plan, or other computation to 
the cognizant Federal agency for purposes of negotiating an indirect 
cost rate or other rates, the 3-year retention period starts on the date 
of the submission.
    (2) If the recipient or the subrecipient is not required to submit 
the documents or supporting records for negotiating an indirect cost 
rate or other rates, the 3-year retention period for the documents and 
records starts at the end of the fiscal year (or other accounting 
period) covered by the proposal, plan, or other computation.
    (h) If the information described in this section is maintained on a 
computer, recipients must retain the computer data on a reliable medium 
for the time periods prescribed. Recipients may transfer computer data 
in machine readable form from one reliable computer medium to another. 
Recipients' computer data retention and transfer procedures must 
maintain the integrity, reliability, and security of the original 
computer data. Recipients must also maintain an audit trail describing 
the data transfer. For the record retention time periods prescribed in 
this section, recipients must not destroy, discard, delete, or write 
over such computer data.

[[Page 168]]

                       Termination and Enforcement



Sec. 600.350  Purpose of termination and enforcement.

    Sections 600.351 through 600.353 set forth uniform procedures for 
suspension, termination, enforcement, and disputes.



Sec. 600.351  Termination.

    (a) Awards may be terminated in whole or in part only in accordance 
with one of the following:
    (1) By the contracting officer, if a recipient materially fails to 
comply with the terms and conditions of an award.
    (2) By the contracting officer with the consent of the recipient, in 
which case the two parties must agree upon the termination conditions, 
including the effective date and, in the case of partial termination, 
the portion to be terminated.
    (3) By the recipient upon sending to the contracting officer written 
notification setting forth the reasons for such termination, the 
effective date, and, in the case of partial termination, the portion to 
be terminated. The recipient must provide such notice at least 30 
calendar days prior to the effective date of the termination. However, 
if the contracting officer determines in the case of partial termination 
that the reduced or modified portion of the award will not accomplish 
the purposes for which the award was made, he or she may terminate the 
award in its entirety.
    (b) If the recipient incurred allowable costs prior to the 
termination, the responsibilities of the recipient referred to in Sec. 
600.361(b), including those related to property, apply to the 
termination of the award, and provision must be made for continuing 
responsibilities of the recipient after termination, as appropriate.



Sec. 600.352  Enforcement.

    (a) Remedies for noncompliance. If a recipient materially fails to 
comply with the terms and conditions of an award, whether stated in a 
Federal statute, regulation, assurance, application, or notice of award, 
the contracting officer may, in addition to imposing any of the special 
conditions outlined in Sec. 600.304, take one or more of the following 
actions, as appropriate:
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the recipient or more severe enforcement action by the 
contracting officer.
    (2) Disallow (that is, deny both the use of funds and any applicable 
matching credit for) all or part of the cost of the activity or action 
not in compliance.
    (3) Wholly or partly suspend or terminate the current award.
    (4) Withhold further awards for the project or program.
    (5) Apply other remedies that may be legally available.
    (b) Hearings and appeals. In taking an enforcement action, DOE must 
provide the recipient an opportunity for hearing, appeal, or other 
administrative proceeding to which the recipient is entitled under any 
statute or regulation applicable to the action involved.
    (c) Effects of suspension and termination. Costs resulting from 
obligations incurred by the recipient during a suspension or after 
termination of an award are not allowable, unless the contracting 
officer expressly authorizes them in the notice of suspension or 
termination or subsequently authorizes such costs. Other recipient costs 
during suspension or after termination, which are necessary and not 
reasonably avoidable, are allowable if the costs:
    (1) Result from obligations which were properly incurred by the 
recipient before the effective date of suspension or termination, are 
not in anticipation of it, and in the case of a termination, are 
noncancellable; and
    (2) Would be allowable if the award expired normally at the end of 
the funding period.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude a recipient from being subject to debarment 
and suspension under 10 CFR part 1036.



Sec. 600.353  Disputes and appeals.

    Consistent with 10 CFR 600.22 and part 1024, recipients have the 
right to appeal certain decisions by contracting officers.

[[Page 169]]

                      After-the-Award Requirements



Sec. 600.360  Purpose.

    Sections 600.361 through 600.363 contain procedures for closeout and 
for subsequent disallowances and adjustments.



Sec. 600.361  Closeout procedures.

    (a) Recipients must submit, within 90 calendar days after the date 
of completion of the award, all reports required by the terms and 
conditions of the award. DOE may approve extensions when requested by 
the recipient.
    (b) The following provisions must apply to the closeout:
    (1) Unless DOE authorizes an extension, a recipient must liquidate 
all obligations incurred under the award not later than 90 calendar days 
after the funding period or the date of completion of the award as 
specified in the terms and conditions of the award or in agency 
implementing instructions.
    (2) DOE must make prompt, final payments to a recipient for 
allowable reimbursable costs under the award being closed out.
    (3) The recipient must promptly refund any unobligated balances of 
cash that DOE has advanced or paid and that are not authorized to be 
retained by the recipient for use in other projects. OMB Circular A-129 
governs unreturned amounts that become delinquent debts.
    (4) When authorized by the terms and conditions of the award, the 
contracting officer must make a settlement for any upward or downward 
adjustments to the Federal share of costs after closeout reports are 
received.
    (5) The recipient must account for any real property and equipment 
acquired with Federal funds or received from the Federal Government in 
accordance with Sec. Sec. 600.321 through 600.325.
    (6) If a final audit is required and has not been performed prior to 
the closeout of an award, DOE retains the right to recover an 
appropriate amount after fully considering the recommendations on 
disallowed costs resulting from the final audit.



Sec. 600.362  Subsequent adjustments and continuing responsibilities.

    (a) The closeout of an award does not affect any of the following:
    (1) The right of DOE to disallow costs and recover funds on the 
basis of a later audit or other review.
    (2) The obligation of the recipient to return any funds due as a 
result of later refunds, corrections, or other transactions.
    (3) Audit requirements in Sec. 600.316.
    (4) Property management requirements in Sec. Sec. 600.321 through 
600.325.
    (5) Records retention requirements in Sec. 600.342.
    (b) After closeout of an award, the continuing responsibilities 
under an award may be modified or ended in whole or in part with the 
consent of the contracting officer and the recipient, provided property 
management requirements are considered and provisions made for the 
continuing responsibilities of the recipient, as appropriate.



Sec. 600.363  Collection of amounts due.

    (a) Any funds paid to a recipient in excess of the amount to which 
the recipient is finally determined to be entitled under the terms and 
conditions of the award constitute a debt to the Federal Government. If 
not paid within 30 days after the demand for payment, DOE may reduce the 
debt in accordance with the procedures and techniques described in 10 
CFR part 1015 and OMB Circular A-129, including:
    (1) Making an administrative offset against other requests for 
reimbursements.
    (2) Withholding advance payments otherwise due to the recipient.
    (3) Taking other action permitted by statute or regulation.
    (b) Except as otherwise provided by law, DOE may charge interest and 
administrative fees on an overdue debt in accordance with 31 CFR Chapter 
IX, parts 900-904, ``Federal Claims Collection Standards.''

                          Additional Provisions



Sec. 600.380  Purpose.

    The purpose of ``Additional Provisions'' is to provide alternative 
requirements for recipients otherwise covered

[[Page 170]]

by this subpart D, when they are performing under Small Business 
Innovation Research grants.



Sec. 600.381  Special provisions for Small Business Innovation Research Grants.

    (a) General. This section contains provisions applicable to the 
Small Business Innovation Reserach (SBIR) Program.
    (b) Provisions Applicable to Phase I SBIR Awards: Phase I SBIR 
awards may be made on a fixed obligation basis, subject to the following 
requirements.
    (1) While proposed costs must be analyzed in detail to ensure 
consistency with applicable cost principles, incurred costs are not 
subject to review under the standards of cost allowability.
    (2) Although detailed budgets are submitted by a recipient and 
reviewed by DOE for purposes of establishing the amount to be awarded, 
budget categories are not stipulated in making an award;
    (3) Prior approval from the DOE for rebudgeting among categories by 
the recipient is not required. Prior approval from DOE is required for 
any variation from the requirement that no more than one-third of Phase 
I work can be done by subcontractors or consortium partners;
    (4) Pre-award expenditure approval is not required;
    (5) Payments are to be made in the same manner as other financial 
assistance (see Sec. 600.312), except that, when determined appropriate 
by the cognizant program official and contracting officer, a lump sum 
payment may be made. If a lump sum payment is made, the award must 
contain a condition that requires the recipient to return to DOE amounts 
remaining unexpended at the end of the project if those amounts exceed 
$500;
    (6) Recipients will certify in writing to the Contracting Officer at 
the end of the project that the activity was completed or the level of 
effort was expended. Should the activity or effort not be carried out, 
the recipeint would be expected to make appropriate reimbursements;
    (7) Requirements for periodic reports may be established for each 
award so long as they are consistent with Sec. 600.341;
    (8) Changes in principal investigator or project leader, scope of 
effort, or institution, require the prior approval of DOE.
    (c) Provision Applicable to Phase II SBIR Awards. Phase II SBIR 
awards may be made for a single budget period of 24 months.
    (d) Provisions Applicable to Phase I and Phase II SBIR Awards. (1) 
The prior approval of the cognizant DOE Contracting Officer is required 
before the final budget period of the project period may be extended 
without additional funds.
    (2) A fee or profit may be paid to SBIR recipients.



  Sec. Appendix A to Subpart D of Part 600--Patent and Data Provisions

1. Patent Rights (Small Business Firms and Nonprofit Organizations)
2. Patent Rights (Large Business Firms)--No Waiver
3. Rights in Data--General
4. Rights in Data--Programs Covered Under Special Protected Data 
Statutes

    Patent Rights (Small Business Firms and Nonprofit Organizations)

                             (a) Definitions

    Invention means any invention or discovery which is or may be 
patentable or otherwise protectable under title 35 of the United States 
Code, or any novel variety of plant which is or may be protected under 
the Plant Variety Protection Act (7 U.S.C. 2321 et seq.).
    Made when used in relation to any invention means the conception or 
first actual reduction to practice of such invention.
    Nonprofit organization means a university or other institution of 
higher education or an organization of the type described in section 
501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)) and 
exempt from taxation under section 501(a) of the Internal Revenue Code 
(26 U.S.C. 501(a)) or any nonprofit scientific or educational 
organization qualified under a State nonprofit organization statute.
    Practical application means to manufacture in the case of a 
composition or product, to practice in the case of a process or method, 
or to operate in the case of a machine or system; and, in each case, 
under such conditions as to establish that the invention is being

[[Page 171]]

utilized and that its benefits are to the extent permitted by law or 
Government regulations available to the public on reasonable terms.
    Small business firm means a small business concern as defined at 
section 2 of Public Law 85-536 (16 U.S.C. 632) and implementing 
regulations of the Administrator of the Small Business Administration. 
For the purpose of this clause, the size standards for small business 
concerns involved in Government procurement and subcontracting at 13 CFR 
121.3 through 121.8 and 13 CFR 121.3 through 121.12, respectively, will 
be used.
    Subject invention means any invention of the Recipient conceived or 
first actually reduced to practice in the performance of work under this 
award, provided that in the case of a variety of plant, the date of 
determination (as defined in section 41(d) of the Plant Variety 
Protection Act, 7 U.S.C. 2401(d) must also occur during the period of 
award performance.

                   (b) Allocation of Principal Rights

    The Recipient may retain the entire right, title, and interest 
throughout the world to each subject invention subject to the provisions 
of this Patent Rights clause and 35 U.S.C. 203. With respect to any 
subject invention in which the Recipient retains title, the Federal 
Government shall have a non-exclusive, nontransferable, irrevocable, 
paid-up license to practice or have practiced for or on behalf of the 
U.S. the subject invention throughout the world.

    (c) Invention Disclosure, Election of Title and Filing of Patent 
                        Applications by Recipient

    (1) The Recipient will disclose each subject invention to DOE within 
two months after the inventor discloses it in writing to Recipient 
personnel responsible for the administration of patent matters. The 
disclosure to DOE shall be in the form of a written report and shall 
identify the award under which the invention was made and the 
inventor(s). It shall be sufficiently complete in technical detail to 
convey a clear understanding to the extent known at the time of 
disclosure, of the nature, purpose, operation, and the physical, 
chemical, biological or electrical characteristics of the invention. The 
disclosure shall also identify any publication, on sale or public use of 
the invention and whether a manuscript describing the invention has been 
submitted for publication and, if so, whether it has been accepted for 
publication at the time of disclosure. In addition, after disclosure to 
DOE, the Recipient will promptly notify DOE of the acceptance of any 
manuscript describing the invention for publication or of any on sale or 
public use planned by the Recipient.
    (2) The Recipient will elect in writing whether or not to retain 
title to any such invention by notifying DOE within two years of 
disclosure to DOE. However, in any case where publication, on sale, or 
public use has initiated the one-year statutory period wherein valid 
patent protection can still be obtained in the U.S., the period for 
election of title may be shortened by the agency to a date that is no 
more than 60 days prior to the end of the statutory period.
    (3) The Recipient will file its initial patent application on an 
invention to which it elects to retain title within one year after 
election of title or, if earlier, prior to the end of any statutory 
period wherein valid patent protection can be obtained in the U.S. after 
a publication, on sale, or public use. The Recipient will file patent 
applications in additional countries or international patent offices 
within either ten months of the corresponding initial patent 
application, or six months from the date when permission is granted by 
the Commissioner of Patents and Trademarks to file foreign patent 
applications when such filing has been prohibited by a Secrecy Order.
    (4) Requests for extension of the time for disclosure to DOE, 
election, and filing under subparagraphs (c)(1), (2), and (3) of this 
clause may, at the discretion of DOE, be granted.

           (d) Conditions When the Government May Obtain Title

    The Recipient will convey to DOE, upon written request, title to any 
subject invention:
    (1) If the Recipient fails to disclose or elect the subject 
invention within the times specified in paragraph (c) of this patent 
rights clause, or elects not to retain title; provided that DOE may only 
request title within 60 days after learning of the failure of the 
Recipient to disclose or elect within the specified times;
    (2) In those countries in which the Recipient fails to file patent 
applications within the times specified in paragraph (c) of this Patent 
Rights clause; provided, however, that if the Recipient has filed a 
patent application in a country after the times specified in paragraph 
(c) of this Patent Rights clause, but prior to its receipt of the 
written request of DOE, the Recipient shall continue to retain title in 
that country; or
    (3) In any country in which the Recipient decides not to continue 
the prosecution of any application for, to pay the maintenance fees on, 
or defend in a reexamination or opposition proceeding on, a patent on a 
subject invention.

[[Page 172]]

(e) Minimum Rights to Recipient and Protection of the Recipient Right To 
                                  File

    (1) The Recipient will retain a non-exclusive royalty-free license 
throughout the world in each subject invention to which the Government 
obtains title, except if the Recipient fails to disclose the subject 
invention within the times specified in paragraph (c) of this Patent 
Rights clause. The Recipient's license extends to its domestic 
subsidiaries and affiliates, if any, within the corporate structure of 
which the Recipient is a party and includes the right to grant 
sublicenses of the same scope of the extent the Recipient was legally 
obligated to do so at the time the award was awarded. The license is 
transferable only with the approval of DOE except when transferred to 
the successor of that part of the Recipient's business to which the 
invention pertains.
    (2) The Recipient's domestic license may be revoked or modified by 
DOE to the extent necessary to achieve expeditious practical application 
of the subject invention pursuant to an application for an exclusive 
license submitted in accordance with applicable provisions at 37 CFR 
part 404 and the agency's licensing regulation, if any. This license 
will not be revoked in that field of use or the geographical areas in 
which the Recipient has achieved practical application and continues to 
make the benefits of the invention reasonably accessible to the public. 
The license in any foreign country may be revoked or modified at 
discretion of the funding Federal agency to the extent the Recipient, 
its licensees, or its domestic subsidiaries or affiliates have failed to 
achieve practical application in that foreign country.
    (3) Before revocation or modification of the license, the funding 
Federal agency will furnish the Recipient a written notice of its 
intention to revoke or modify the license, and the Recipient will be 
allowed thirty days (or such other time as may be authorized by DOE for 
good cause shown by the Recipient) after the notice to show cause why 
the license should not be revoked or modified. The Recipient has the 
right to appeal, in accordance with applicable regulations in 37 CFR 
part 404 and the agency's licensing regulations, if any, concerning the 
licensing of Government-owned inventions, any decision concerning the 
revocation or modification of its license.

          (f) Recipient Action To Protect Government's Interest

    (1) The Recipient agrees to execute or to have executed and promptly 
deliver to DOE all instruments necessary to:
    (i) Establish or confirm the rights the Government has throughout 
the world in those subject inventions for which the Recipient retains 
title; and
    (ii) Convey title to DOE when requested under paragraph (d) of this 
Patent Rights clause, and to enable the government to obtain patent 
protection throughout the world in that subject invention.
    (2) The Recipient agrees to require, by written agreement, its 
employees, other than clerical and non-technical employees, to disclose 
promptly in writing to personnel identified as responsible for the 
administration of patent matters and in a format suggested by the 
Recipient each subject invention made under this award in order that the 
Recipient can comply with the disclosure provisions of paragraph (c) of 
this Patent Rights clause, and to execute all papers necessary to file 
patent applications on subject inventions and to establish the 
Government's rights in the subject inventions. The disclosure format 
should require, as a minimum, the information requested by paragraph 
(c)(1) of this Patent Rights clause. The Recipient shall instruct such 
employees through the employee agreements or other suitable educational 
programs on the importance of reporting inventions in sufficient time to 
permit the filing of patent applications prior to U.S. or foreign 
statutory bars.
    (3) The Recipient will notify DOE of any decision not to continue 
prosecution of a patent application, pay maintenance fees, or defend in 
a reexamination or opposition proceeding on a patent, in any country, 
not less than 30 days before the expiration of the response period 
required by the relevant patent office.
    (4) The Recipient agrees to include, within the specification of any 
U.S. patent application and any patent issuing thereon covering a 
subject invention, the following statement: ``This invention was made 
with Government support under (identify the award) awarded by (identify 
DOE). The Government has certain rights in this invention.''

                          (g) Subaward/Contract

    (1) The Recipient will include this Patent Rights clause, suitably 
modified to identify the parties, in all subawards/contracts, regardless 
of tier, for experimental, developmental or research work to be 
performed by a small business firm or nonprofit organization. The 
subrecipient/contractor will retain all rights provided for the 
Recipient in this Patent Rights clause, and the Recipient will not, as 
part of the consideration for awarding the subcontract, obtain rights in 
the subcontractors' subject inventions.
    (2) The Recipient will include in all other subawards/contracts, 
regardless of tier, for experimental, developmental or research work, 
the patent rights clause required by 10 CFR 600.325(c).
    (3) In the case of subawards/contracts at any tier, DOE, the 
Recipient, and the subrecipient/contractor agree that the mutual 
obligations of the parties created by this

[[Page 173]]

clause constitute a contract between the subrecipient/contractor and DOE 
with respect to those matters covered by the clause.

           (h) Reporting on Utilization of Subject Inventions

    The Recipient agrees to submit on request periodic reports no more 
frequently than annually on the utilization of a subject invention or on 
efforts at obtaining such utilization that are being made by the 
Recipient or its licensees or assignees. Such reports shall include 
information regarding the status of development, date of first 
commercial sale or use, gross royalties received by the Recipient and 
such other data and information as DOE may reasonably specify. The 
Recipient also agrees to provide additional reports in connection with 
any march-in proceeding undertaken by DOE in accordance with paragraph 
(j) of this Patent Rights clause. As required by 35 U.S.C. 202(c)(5), 
DOE agrees it will not disclose such information to persons outside the 
Government without the permission of the Recipient.

               (i) Preference for United States Industry.

    Notwithstanding any other provision of this Patent Rights clause, 
the Recipient agrees that neither it nor any assignee will grant to any 
person the exclusive right to use or sell any subject invention in the 
U.S. unless such person agrees that any products embodying the subject 
invention or produced through the use of the subject invention will be 
manufactured substantially in the U.S. However, in individual cases, the 
requirement for such an agreement may be waived by DOE upon a showing by 
the Recipient or its assignee that reasonable but unsuccessful efforts 
have been made to grant licenses on similar terms to potential licensees 
that would be likely to manufacture substantially in the U.S. or that 
under the circumstances domestic manufacture is not commercially 
feasible.

                           (j) March-in-Rights

    The Recipient agrees that with respect to any subject invention in 
which it has acquired title, DOE has the right in accordance with 
procedures at 37 CFR 401.6 and any supplemental regulations of the 
Agency to require the Recipient, an assignee or exclusive licensee of a 
subject invention to grant a non-exclusive, partially exclusive, or 
exclusive license in any field of use to a responsible applicant or 
applicants, upon terms that are reasonable under the circumstances and 
if the Recipient, assignee, or exclusive licensee refuses such a 
request, DOE has the right to grant such a license itself if DOE 
determines that:
    (1) Such action is necessary because the Recipient or assignee has 
not taken or is not expected to take within a reasonable time, effective 
steps to achieve practical application of the subject invention in such 
field of use;
    (2) Such action is necessary to alleviate health or safety needs 
which are not reasonably satisfied by the Recipient, assignee, or their 
licensees;
    (3) Such action is necessary to meet requirements for public use 
specified by Federal regulations and such requirements are not 
reasonably satisfied by the Recipient, assignee, or licensee; or
    (4) Such action is necessary because the agreement required by 
paragraph (i) of this Patent Rights clause has not been obtained or 
waived or because a licensee of the exclusive right to use or sell any 
subject invention in the U.S. is in breach of such agreement.

     (k) Special Provisions for Awards With Nonprofit Organizations

    If the Recipient is a nonprofit organization, it agrees that:
    (1) Rights to a subject invention in the U.S. may not be assigned 
without the approval of DOE, except where such assignment is made to an 
organization which has as one of its primary functions the management of 
inventions, provided that such assignee will be subject to the same 
provisions as the Recipient;
    (2) The Recipient will share royalties collected on a subject 
invention with the inventor, including Federal employee co-inventors 
(when DOE deems it appropriate) when the subject invention is assigned 
in accordance with 35 U.S.C. 202(e) and 37 CFR 401.10;
    (3) The balance of any royalties or income earned by the Recipient 
with respect to subject inventions, after payment of expenses (including 
payments to inventors) incidental to the administration of subject 
inventions, will be utilized for the support of scientific or 
engineering research or education; and
    (4) It will make efforts that are reasonable under the circumstances 
to attract licensees of subject inventions that are small business firms 
and that it will give preference to a small business firm if the 
Recipient determines that the small business firm has a plan or proposal 
for marketing the invention which, if executed, is equally likely to 
bring the invention to practical application as any plans or proposals 
from applicants that are not small business firms; provided that the 
Recipient is also satisfied that the small business firm has the 
capability and resources to carry out its plan or proposal. The decision 
whether to give a preference in any specific case will be at the 
discretion of the Recipient. However, the Recipient agrees that the 
Secretary of Commerce may review the Recipient's licensing program and 
decisions regarding small business applicants, and the Recipient will 
negotiate changes to its licensing policies, procedures or practices

[[Page 174]]

with the Secretary when the Secretary's review discloses that the 
Recipient could take reasonable steps to implement more effectively the 
requirements of this paragraph (k)(4).

                           (l) Communications

    All communications required by this Patent Rights clause should be 
sent to the DOE Patent Counsel address listed in the Award Document.

                          (m) Electronic Filing

    Unless otherwise Specified in the award, the information identified 
in paragraphs (f)(2) and (f)(3) may be electronically filed.

                             (End of clause)

             Patent Rights (Large Business Firms)--No Waiver

                             (a) Definitions

    DOE patent waiver regulations, as used in this clause, means the 
Department of Energy patent waiver regulations in effect on the date of 
award. See 10 CFR part 784.
    Invention, as used in this clause, means any invention or discovery 
which is or may be patentable of otherwise protectable under title 35 of 
the United States Code or any novel variety of plant that is or may be 
protectable under the Plant Variety Protection Act (7 U.S.C. 2321, et 
seq.).
    Patent Counsel, as used in this clause, means the Department of 
Energy Patent Counsel assisting the awarding activity.
    Subject invention, as used in this clause, means any invention of 
the Recipient conceived or first actually reduced to practice in the 
course of or under this agreement.

                   (b) Allocations of Principal Rights

    (1) Assignment to the Government. The Recipient agrees to assign to 
the Government the entire right, title, and interest throughout the 
world in and to each subject invention, except to the extent that rights 
are retained by the Recipient under subparagraph (b)(2) and paragraph 
(d) of this clause.
    (2) Greater rights determinations. The Recipient, or an employee-
inventor after consultation with the Recipient, may request greater 
rights than the nonexclusive license and the foreign patent rights 
provided in paragraph (d) of this clause on identified inventions in 
accordance with the DOE patent waiver regulation. Each determination of 
greater rights under this agreement shall be subject to paragraph (c) of 
this clause, unless otherwise provided in the greater rights 
determination, and to the reservations and conditions deemed to be 
appropriate by the Secretary of Energy or designee.

              (c) Minimum Rights Acquired by the Government

    With respect to each subject invention to which the Department of 
Energy grants the Recipient principal or exclusive rights, the Recipient 
agrees to grant to the Government: A nonexclusive, nontransferable, 
irrevocable, paid-up license to practice or have practiced each subject 
invention throughout the world by or on behalf of the Government of the 
United States (including any Government agency); ``march-in rights'' as 
set forth in 37 CFR 401.14(a)(J)); preference for U.S. industry as set 
forth in 37 CFR 401.14(a)(I); periodic reports upon request, no more 
frequently than annually, on the utilization or intent of utilization of 
a subject invention in a manner consistent with 35 U.S.C. 202(c)(50; and 
such Government rights in any instrument transferring rights in a 
subject invention.

                   (d) Minimum Rights to the Recipient

    (1) The Recipient is hereby granted a revocable, nonexclusive, 
royalty-free license in each patent application filed in any country on 
a subject invention and any resulting patent in which the Government 
obtains title, unless the Recipient fails to disclose the subject 
invention within the times specified in subparagraph (e)(2) of this 
clause. The Recipient's license extends to its domestic subsidiaries and 
affiliates, if any, within the corporate structure of which the 
Recipient is a part and includes the right to grant sublicenses of the 
same scope to the extent the Recipient was legally obligated to do so at 
the time the agreement was awarded. The license is transferable only 
with the approval of DOE except when transferred to the successor of 
that part of the Recipient's business to which the invention pertains.
    (2) The Recipient may request the right to acquire patent rights to 
a subject invention in any foreign country where the Government has 
elected not to secure such rights, subject to the minimum rights 
acquired by the Government similar to paragraph (c) of this clause. Such 
request must be made in writhing to the Patent Counsel as part of the 
disclosure required by subparagraph (e)(2) of this clause, with a copy 
to the DOE Contracting Officer. DOE approval, if given, will be based on 
a determination that this would best serve the national interest.

         (e) Invention Identification, Disclosures, and Reports

    (1) The Recipient shall establish and maintain active and effective 
procedures to assure that subject inventions are promptly identified and 
disclosed to Recipient personnel responsible for patent matters within 6 
months of conception and/or first actual reduction to practice, 
whichever occurs first in

[[Page 175]]

the performance of work under this agreement. These procedures shall 
include the maintenance of laboratory notebooks or equivalent records 
and other records as are reasonably necessary to document the conception 
and/or the first actual reduction to practice of subject inventions, and 
records that show that the procedures for identifying and disclosing the 
inventions are followed. Upon request, the Recipient shall furnish the 
Contracting Officer a description of such procedures for evaluation and 
for determination as to their effectiveness.
    (2) The Recipient shall disclose each subject invention to the DOE 
Patent Counsel with a copy to the Contracting Officer within 2 months 
after the inventor discloses it in writing to Recipient personnel 
responsible for patent matters or, if earlier, within 6 months after the 
Recipient becomes aware that a subject invention has been made, but in 
any event before any on sale, public use, or publication of such 
invention known to the Recipient. The disclosure to DOE shall be in the 
form of a written report and shall identify the agreement under which 
the invention was made and the inventor(s). It shall be sufficiently 
complete in technical detail to convey a clear understanding, to the 
extent known at the time of the disclosure, of the nature, purpose, 
operation, and physical, chemical, biological, or electrical 
characteristics of the invention. The disclosure shall also identify any 
publication, on sale, or public use of the invention and whether a 
manuscript describing the invention has been submitted for publication 
and, if so, whether it has been accepted for publication at the time of 
disclosure. In addition, after disclosure to DOE, the Recipient shall 
promptly notify Patent Counsel of the acceptance of any manuscript 
describing the invention for publication or of any on sale or public use 
planned by the Recipient. The report should also include any request for 
a greater rights determination in accordance with subparagraph (b)(2) of 
this clause. When an invention is disclosed to DOE under this paragraph, 
it shall be deemed to have been made in the manner specified in Sections 
(a)(1) and (a)(2) of 42 U.S.C. 5908, unless the Recipient contends in 
writing at the time the invention is disclosed that it was not so made.
    (3) The Recipient shall furnish the Contracting Officer a final 
report, within 3 months after completion of the work listing all subject 
inventions or containing a statement that there were no such inventions, 
and listing all subawards/contracts at any tier containing a patent 
rights clause or containing a statement that there were no such 
subawards/contracts.
    (4) The Recipient agrees to require, by written agreement, its 
employees, other than clerical and nontechnical employees, to disclose 
promptly in writing to personnel identified as responsible for the 
administration of patent matters and in a format suggested by the 
Recipient each subject invention made under subaward/contract in order 
that the Recipient can comply with the disclosure provisions of 
paragraph (c) of this clause, and to execute all papers necessary to 
file patent applications on subject inventions and to establish the 
Government's rights in the subject inventions. This disclosure format 
should require, as a minimum, the information required by subparagraph 
(e)(2) of this clause.
    (5) The Recipient agrees, subject to FAR 27.302(j), that the 
Government may duplicate and disclose subject invention disclosures and 
all other reports and papers furnished or required to be furnished 
pursuant to this clause.

            (f) Examination of Records Relating to Inventions

    (1) The Contracting Officer or any authorized representative shall, 
until 3 years after final payment under this agreement, have the right 
to examine any books (including laboratory notebooks), records, and 
documents of the Recipient relating to the conception or first actual 
reduction to practice of inventions in the same field of technology as 
the work under this agreement to determine whether--
    (i) Any such inventions are subject inventions;
    (ii) The Recipient has established and maintains the procedures 
required by subparagraphs (e)(1) and (4) of this clause;
    (iii) The Recipient and its inventors have complied with the 
procedures.
    (2) If the Contracting Officer learns of an unreported Recipient 
invention which the Contracting Officer believes may be a subject 
invention, the Recipient may be required to disclose the invention to 
DOE for a determination of ownership rights.
    (3) Any examination of records under this paragraph will be subject 
to appropriate conditions to protect the confidentiality of the 
information involved.

                          (g) Subaward/Contract

    (1) The recipient shall include the clause PATENT RIGHTS (SMALL 
BUSINESS FIRMS AND NONPROFIT ORGANIZATIONS) (suitably modified to 
identify the parties) in all subawards/contracts, regardless of tier, 
for experimental, developmental, demonstration, or research work to be 
performed by a small business firm or domestic nonprofit organization, 
except where the work of the subaward/contract is subject to an 
Exceptional Circumstances Determination by DOE. In all other subawards/
contracts, regardless of tier, for experimental, developmental, 
demonstration, or research work, the Recipient shall include this clause

[[Page 176]]

(suitably modified to identify the parties), or an alternate clause as 
directed by the contracting officer. The Recipient shall not, as part of 
the consideration for awarding the subaward/contract, obtain rights in 
the subrecipient's/contractor's subject inventions.
    (2) In the event of a refusal by a prospective subrecipient/
contractor to accept such a clause the Recipient:
    (i) Shall promptly submit a written notice to the Contracting 
Officer setting forth the subrecipient/contractor's reasons for such 
refusal and other pertinent information that may expedite disposition of 
the matter; and
    (ii) Shall not proceed with such subaward/contract without the 
written authorization of the Contracting Officer.
    (3) In the case of subawards/contracts at any tier, DOE, the 
subrecipient/contractor, and Recipient agree that the mutual obligations 
of the parties created by this clause constitute a contract between the 
subrecipient/contractor and DOE with respect to those matters covered by 
this clause.
    (4) The Recipient shall promptly notify the Contracting Officer in 
writing upon the award of any subaward/contract at any tier containing a 
patent rights clause by identifying the subrecipient/contractor, the 
applicable patent rights clause, the work to be performed under the 
subaward/contract, and the dates of award and estimated completion. Upon 
request of the Contracting Officer, the Recipient shall furnish a copy 
of such subaward/contract, and, no more frequently than annually, a 
listing of the subawards/contracts that have been awarded.
    (5) The Recipient shall identify all subject inventions of a 
subrecipient/contractor of which it acquires knowledge in the 
performance of this agreement and shall notify the Patent Counsel, with 
a copy to the contracting officer, promptly upon identification of the 
inventions.

                            (h) Atomic Energy

    (1) No claim for pecuniary award of compensation under the 
provisions of the Atomic Energy Act of 1954, as amended, shall be 
asserted with respect to any invention or discovery made or conceived in 
the course of or under this agreement.
    (2) Except as otherwise authorized in writing by the Contracting 
Officer, the Recipient will obtain patent agreements to effectuate the 
provisions of subparagraph (h)(1) of this clause from all persons who 
perform any part of the work under this agreement, except nontechnical 
personnel, such as clerical employees and manual laborers.

                             (i) Publication

    It is recognized that during the course of the work under this 
agreement, the Recipient or its employees may from time to time desire 
to release or publish information regarding scientific or technical 
developments conceived or first actually reduced to practice in the 
course of or under this agreement. In order that public disclosure of 
such information will not adversely affect the patent interests of DOE 
or the Recipient, patent approval for release of publication shall be 
secured from Patent Counsel prior to any such release or publication.

        (j) Forfeiture of Rights in Unreported Subject Inventions

    (1) The Recipient shall forfeit and assign to the Government, at the 
request of the Secretary of Energy or designee, all rights in any 
subject invention which the Recipient fails to report to Patent Counsel 
within six months after the time the Recipient:
    (i) Files or causes to be filed a United States or foreign patent 
application thereon; or
    (ii) Submits the final report required by subparagraph (e)(3) of 
this clause, whichever is later.
    (2) However, the Recipient shall not forfeit rights in a subject 
invention if, within the time specified in subparagraph (e)(2) of this 
clause, the Recipient:
    (i) Prepares a written decision based upon a review of the record 
that the invention was neither conceived nor first actually reduced to 
practice in the course of or under the agreement and delivers the 
decision to Patent Counsel, with a copy to the Contracting Officer, or
    (ii) Contending that the invention is not a subject invention, the 
Recipient nevertheless discloses the invention and all facts pertinent 
to this contention to the Patent Counsel, with a copy of the Contracting 
Officer; or
    (iii) Establishes that the failure to disclose did not result from 
the Recipient's fault or negligence.
    (3) Pending written assignment of the patent application and patents 
on a subject invention determined by the Secretary of Energy or designee 
to be forfeited (such determination to be a final decision under the 
Disputes clause of this agreement), the Recipient shall be deemed to 
hold the invention and the patent applications and patents pertaining 
thereto in trust for the Government. The forfeiture provision of this 
paragraph (j) shall be in addition to and shall not supersede other 
rights and remedies which the Government may have with respect to 
subject inventions.

                             (End of clause)

                         Rights in Data--General

                             (a) Definitions

    Computer Data Bases, as used in this clause, means a collection of 
data in a form capable of, and for the purpose of, being stored in,

[[Page 177]]

processed, and operated on by a computer. The term does not include 
computer software.
    Computer software, as used in this clause, means (i) computer 
programs which are data comprising a series of instructions, rules, 
routines or statements, regardless of the media in which recorded, that 
allow or cause a computer to perform a specific operation or series of 
operations and (ii) data comprising source code listings, design 
details, algorithms, processes, flow charts, formulae, and related 
material that would enable the computer program to be produced, created 
or compiled. The term does not include computer data bases.
    Data, as used in this clause, means recorded information, regardless 
of form or the media on which it may be recorded. The term includes 
technical data and computer software. The term does not include 
information incidental to administration, such as financial, 
administrative, cost or pricing, or management information.
    Form, fit, and function data, as used in this clause, means data 
relating to items, components, or processes that are sufficient to 
enable physical and functional interchangeability, as well as data 
identifying source, size, configuration, mating, and attachment 
characteristics, functional characteristics, and performance 
requirements; except that for computer software it means data 
identifying source, functional characteristics, and performance 
requirements but specifically excludes the source code, algorithm, 
process, formulae, and flow charts of the software.
    Limited rights, as used in this clause, means the rights of the 
Government in limited rights data as set forth in the Limited Rights 
Notice of subparagraph (g)(2) if included in this clause.
    Limited rights data, as used in this clause, means data (other than 
computer software) developed at private expense that embody trade 
secrets or are commercial or financial and confidential or privileged.
    Restricted computer software, as used in this clause, means computer 
software developed at private expense and that is a trade secret; is 
commercial or financial and is confidential or privileged; or is 
published copyrighted computer software; including minor modifications 
of such computer software.
    Restricted rights, as used in this clause, means the rights of the 
Government in restricted computer software, as set forth in a Restricted 
Rights Notice of subparagraph (g)(3) if included in this clause, or as 
otherwise may be provided in a collateral agreement incorporated in and 
made part of this contract, including minor modifications of such 
computer software.
    Technical data, as used in this clause, means data (other than 
computer software) which are of a scientific or technical nature. 
Technical data does not include computer software, but does include 
manuals and instructional materials and technical data formatted as a 
computer data base.
    Unlimited rights, as used in this clause, means the right of the 
Government to use, disclose, reproduce, prepare derivative works, 
distribute copies to the public, and perform publicly and display 
publicly, in any manner and for any purpose, and to have or permit 
others to do so.

                        (b) Allocations of Rights

    (1) Except as provided in paragraph (c) of this clause regarding 
copyright, the Government shall have unlimited rights in--
    (i) Data first produced in the performance of this agreement;
    (ii) Form, fit, and function data delivered under this agreement;
    (iii) Data delivered under this agreement (except for restricted 
computer software) that constitute manuals or instructional and training 
material for installation, operation, or routine maintenance and repair 
of items, components, or processes delivered or furnished for use under 
this agreement; and
    (iv) All other data delivered under this agreement unless provided 
otherwise for limited rights data or restricted computer software in 
accordance with paragraph (g) of this clause.
    (2) The Recipient shall have the right to--
    (i) Use, release to others, reproduce, distribute, or publish any 
data first produced or specifically used by the Recipient in the 
performance of this agreement, unless provided otherwise in paragraph 
(d) of this clause;
    (ii) Protect from unauthorized disclosure and use those data which 
are limited rights data or restricted computer software to the extent 
provided in paragraph (g) of this clause;
    (iii) Substantiate use of, add or correct limited rights, restricted 
rights, or copyright notices and to take over appropriate action, in 
accordance with paragraphs (e) and (f) of this clause; and
    (iv) Establish claim to copyright subsisting in data first produced 
in the performance of this agreement to the extent provided in 
subparagraph (c)(1) of this clause.

                              (c) Copyright

    (1) Data first produced in the performance of this agreement. Unless 
provided otherwise in paragraph (d) of this clause, the Recipient may 
establish, without prior approval of the Contracting Officer, claim to 
copyright subsisting in data first produced in the performance of this 
agreement. When claim to copyright is made, the Recipient shall affix 
the applicable copyright notices of 17 U.S.C. 401 or 402 and 
acknowledgement of Government sponsorship (including agreement number) 
to the data when such data are delivered to the Government, as well as 
when the data

[[Page 178]]

are published or deposited for registration as a published work in the 
U.S. Copyright Office. For such copyrighted data, including computer 
software, the Recipient grants to the Government, and others acting on 
its behalf, a paid-up nonexclusive, irrevocable worldwide license in 
such copyrighted data to reproduce, prepare derivative works, distribute 
copies to the public, and perform publicly and display publicly, by or 
on behalf of the Government.
    (2) Data not first produced in the performance of this agreement. 
The Recipient shall not, without prior written permission of the 
Contracting Officer, incorporate in data delivered under this agreement 
any data not first produced in the performance of this agreement and 
which contains the copyright notice of 17 U.S.C. 401 or 402, unless the 
Recipient identifies such data and grants to the Government, or acquires 
on its behalf, a license of the same scope as set forth in subparagraph 
(c)(1) of this clause; provided, however, that if such data are computer 
software the Government shall acquire a copyright license as set forth 
in subparagraph (g)(3) of this clause if included in this agreement or 
as otherwise may be provided in a collateral agreement incorporated in 
or made part of this agreement.
    (3) Removal of copyright notices. The Government agrees not to 
remove any copyright notices placed on data pursuant to this paragraph 
(c), and to include such notices on all reproductions of the data.

                (d) Release, Publication and Use of Data

    (1) The Recipient shall have the right to use, release to others, 
reproduce, distribute, or publish any data first produced or 
specifically used by the Recipient in the performance of this agreement, 
except to the extent such data may be subject to the Federal export 
control or national security laws or regulations, or unless otherwise 
provided in this paragraph of this clause or expressly set forth in this 
agreement.
    (2) The Recipient agrees that to the extent it receives or is given 
access to data necessary for the performance of this award, which 
contain restrictive markings, the Recipient shall treat the data in 
accordance with such markings unless otherwise specifically authorized 
in writing by the contracting officer.

                    (e) Unauthorized Marking of Data

    (1) Notwithstanding any other provisions of this agreement 
concerning inspection or acceptance, if any data delivered under this 
agreement are marked with the notices specified in subparagraph (g)(2) 
or (g)(3) of this clause and use of such is not authorized by this 
clause, or if such data bears any other restrictive or limiting markings 
not authorized by this agreement, the Contracting Officer may at any 
time either return the data to the Recipient or cancel or ignore the 
markings. However, the following procedures shall apply prior to 
canceling or ignoring the markings.
    (i) The Contracting Officer shall make written inquiry to the 
Recipient affording the Recipient 30 days from receipt of the inquiry to 
provide written justification to substantiate the propriety of the 
markings;
    (ii) If the Recipient fails to respond or fails to provide written 
justification to substantiate the propriety of the markings within the 
30-day period (or a longer time not exceeding 90 days approved in 
writing by the Contracting Officer for good cause shown), the Government 
shall have the right to cancel or ignore the markings at any time after 
said period and the data will no longer be made subject to any 
disclosure prohibitions.
    (iii) If the Recipient provides written justification to 
substantiate the propriety of the markings within the period set in 
subparagraph (e)(1)(i) of this clause, the Contracting Officer shall 
consider such written justification and determine whether or not the 
markings are to be cancelled or ignored. If the Contracting Officer 
determines that the markings are authorized, the Recipient shall be so 
notified in writing. If the Contracting Officer determines, with 
concurrence of the head of the contracting activity, that the markings 
are not authorized, the Contracting Officer shall furnish the Recipient 
a written determination, which determination shall become the final 
agency decision regarding the appropriateness of the markings unless the 
Recipient files suit in a court of competent jurisdiction within 90 days 
of receipt of the Contracting Officer's decision. The Government shall 
continue to abide by the markings under this subparagraph (e)(1)(iii) 
until final resolution of the matter either by the Contracting Officer's 
determination becoming final (in which instance the Government shall 
thereafter have the right to cancel or ignore the markings at any time 
and the data will no longer be made subject to any disclosure 
prohibitions), or by final disposition of the matter by court decision 
if suit is filed.
    (2) The time limits in the procedures set forth in subparagraph 
(e)(1) of this clause may be modified in accordance with agency 
regulations implementing the Freedom of Information Act (5 U.S.C. 552) 
if necessary to respond to a request thereunder.

                    (f) Omitted or Incorrect Markings

    (1) Data delivered to the Government without either the limited 
rights or restricted rights notice as authorized by paragraph (g) of 
this clause, or the copyright notice required by paragraph (c) of this 
clause, shall be deemed to have been furnished with unlimited rights, 
and the Government assumes

[[Page 179]]

no liability for the disclosure, use, or reproduction of such data. 
However, to the extent the data has not been disclosed without 
restriction outside the Government, the Recipient may request, within 6 
months (or a longer time approved by the Contracting Officer for good 
cause shown) after delivery or such data, permission to have notices 
placed on qualifying data at the Recipient's expense, and the 
Contracting Officer may agree to do so if the Recipient:
    (i) Identifies the data to which the omitted notice is to be 
applied;
    (ii) Demonstrates that the omission of the notice was inadvertent;
    (iii) Establishes that the use of the proposed notice is authorized; 
and
    (iv) Acknowledges that the Government has no liability with respect 
to the disclosure, use, or reproduction of any such data made prior to 
the addition of the notice or resulting from the omission of the notice.
    (2) The Contracting Officer may also:
    (i) Permit correction at the Recipient's expense of incorrect 
notices if the Recipient identifies the data on which correction of the 
notice is to be made, and demonstrates that the correct notice is 
authorized, or
    (ii) Correct any incorrect notices.

 (g) Protection of Limited Rights Data and Restricted Computer Software

    When data other than that listed in subparagraphs (b)(1)(i), (ii), 
and (iii) of this clause are specified to be delivered under this 
agreement and qualify as either limited rights data or restricted 
computer software, if the Recipient desires to continue protection of 
such data, the Recipient shall withhold such data and not furnish them 
to the Government under this agreement. As a condition to this 
withholding, the Recipient shall identify the data being withheld and 
furnish form, fit, and function data in lieu thereof. Limited rights 
data that are formatted as a computer data base for delivery to the 
Government are to be treated as limited rights data and not restricted 
computer software.

                          (h) Subaward/Contract

    The Recipient has the responsibility to obtain from its 
subrecipients/contractors all data and rights therein necessary to 
fulfill the Recipient's obligations to the Government under this 
agreement. If a subrecipient/contractor refuses to accept terms 
affording the Government such rights, the Recipient shall promptly bring 
such refusal to the attention of the Contracting Officer and not proceed 
with the subaward/contract award without further authorization.

                    (i) Additional Data Requirements

    In addition to the data specified elsewhere in this agreement to be 
delivered, the Contracting Officer may, at anytime during agreement 
performance or within a period of 3 years after acceptance of all items 
to be delivered under this agreement, order any data first produced or 
specifically used in the performance of this agreement. This clause is 
applicable to all data ordered under this subparagraph. Nothing 
contained in this subparagraph shall require the Recipient to deliver 
any data the withholding of which is authorized by this clause, or data 
which are specifically identified in this agreement as not subject to 
this clause. When data are to be delivered under this subparagraph, the 
Recipient will be compensated for converting the data into the 
prescribed form, for reproduction, and for delivery.
    (j) The recipient agrees, except as may be otherwise specified in 
this award for specific data items listed as not subject to this 
paragraph, that the Contracting Officer or an authorized representative 
may, up to three years after acceptance of all items to be delivered 
under this award, inspect at the Recipient's facility any data withheld 
pursuant to paragraph (g) of this clause, for purposes of verifying the 
Recipient's assertion pertaining to the limited rights or restricted 
rights status of the data or for evaluating work performance. Where the 
Recipient whose data are to be inspected demonstrates to the Contracting 
Officer that there would be a possible conflict of interest if the 
inspection were made by a particular representative, the Contracting 
Officer shall designate an alternate inspector.
    As prescribed in 600.325(d)(1), the following Alternate I and/or II 
may be inserted in the clause in the award instrument.

Alternate I:
    (g)(2) Notwithstanding subparagraph (g)(1) of this clause, the 
agreement may identify and specify the delivery of limited rights data, 
or the Contracting Officer may require by written request the delivery 
of limited rights data that has been withheld or would otherwise be 
withholdable. If delivery of such data is so required, the Recipient may 
affix the following ``Limited Rights Notice'' to the data and the 
Government will thereafter treat the data, in accordance with such 
Notice:

                          LIMITED RIGHTS NOTICE

    (a) These data are submitted with limited rights under Government 
agreement No. -------- (and subaward/contract No. --------, if 
appropriate). These data may be reproduced and used by the Government 
with the express limitation that they will not, without written 
permission of the Recipient, be used for purposes of manufacture nor 
disclosed outside the Government; except that the Government may 
disclose these data outside the Government for the following purposes, 
if any, provided that the Government

[[Page 180]]

makes such disclosure subject to prohibition against further use and 
disclosure:
    (1) Use (except for manufacture) by Federal support services 
contractors within the scope of their contracts;
    (2) This ``limited rights data'' may be disclosed for evaluation 
purposes under the restriction that the ``limited rights data'' be 
retained in confidence and not be further disclosed;
    (3) This ``limited rights data'' may be disclosed to other 
contractors participating in the Government's program of which this 
Recipient is a part for information or use (except for manufacture) in 
connection with the work performed under their awards and under the 
restriction that the ``limited rights data'' be retained in confidence 
and not be further disclosed;
    (4) This ``limited rights data'' may be used by the Government or 
others on its behalf for emergency repair or overhaul work under the 
restriction that the ``limited rights data'' be retained in confidence 
and not be further disclosed; and
    (5) Release to a foreign government, or instrumentality thereof, as 
the interests of the United States Government may require, for 
information or evaluation, or for emergency repair or overhaul work by 
such government. This Notice shall be marked on any reproduction of this 
data in whole or in part.
    (b) This Notice shall be marked on any reproduction of these data, 
in whole or in part.

                             (End of notice)

Alternate II:
    (g)(3)(i) Notwithstanding subparagraph (g)(1) of this clause, the 
agreement may identify and specify the delivery of restricted computer 
software, or the Contracting Officer may require by written request the 
delivery of restricted computer software that has been withheld or would 
otherwise be withholdable. If delivery of such computer software is so 
required, the Recipient may affix the following ``Restricted Rights 
Notice'' to the computer software and the Government will thereafter 
treat the computer software, subject to paragraphs (e) and (f) of this 
clause, in accordance with the Notice.

                        RESTRICTED RIGHTS NOTICE

    (a) This computer software is submitted with restricted rights under 
Government Agreement No. -------- (and subaward/contract --------, if 
appropriate). It may not be used, reproduced, or disclosed by the 
Government except as provided in paragraph (b) of this Notice or as 
otherwise expressly stated in the agreement.
    (b) This computer software may be--
    (1) Used or copies for use in or with the computer or computers for 
which it was acquired, including use at any Government installation to 
which such computer or computers may be transferred;
    (2) Used or copied for use in a backup computer if any computer for 
which it was acquired is inoperative;
    (3) Reproduced for safekeeping (archiv3es) or backup purposes;
    (4) Modified, adapted, or combined with other computer software, 
provided that the modified, combined, or adapted portions of the 
derivative software are made subject to the same restricted rights;
    (5) Disclosed to and reproduced for use by support service 
Recipients in accordance with subparagraph (b)(1) through (4) of this 
clause, provided the Government makes such disclosure or reproduction 
subject to these restricted rights; and
    (6) Used or copied for use in or transferred to a replacement 
computer.
    (c) Notwithstanding the foregoing, if this computer software is 
published copyrighted computer software, it is licensed to the 
Government, without disclosure prohibitions, with the minimum rights set 
forth in paragraph (b) of this clause.
    (d) Any other rights or limitations regarding the use, duplication, 
or disclosure of this computer software are to be expressly stated, in, 
or incorporated in, the agreement.
    (e) This Notice shall be marked on any reproduction of this computer 
software, in whole or in part.

                             (End of notice)

    (ii) Where it is impractical to include the Restricted Rights Notice 
on restricted computer software, the following short-form Notice may be 
used in lieu thereof:

                        RESTRICTED RIGHTS NOTICE

    Use, reproduction, or disclosure is subject to restrictions set 
forth in agreement No. -------- (and subaward/contract --------, If 
appropriate) with -------- (name of Recipient and subrecipient/
contractor).

                             (End of notice)

    (iii) If restricted computer software is delivered with the 
copyright notice of 17 U.S.C. 401, it will be presumed to be published 
copyrighted computer software licensed to the government without 
disclosure prohibitions, with the minimum rights set forth in paragraph 
(b) of this clause, unless the Recipient includes the following 
statement with such copyright notice: ``Unpublished--rights reserved 
under the Copyright Laws of the United States.''

[[Page 181]]

                             (End of clause)

      Rights in Data--Programs Covered Under Special Data Statutes

                             (a) Definitions

    Computer Data Bases, as used in this clause, means a collection of 
data in a form capable of, and for the purpose of, being stored in, 
processed, and operated on by a computer. The term does not include 
computer software.
    Computer software, as used in this clause, means (i) computer 
programs which are data comprising a series of instructions, rules, 
routines, or statements, regardless of the media in which recorded, that 
allow or cause a computer to perform a specific operation or series of 
operations and (ii) data comprising source code listings, design 
details, algorithms, processes, flow charts, formulae and related 
material that would enable the computer program to be produced, created 
or compiled. The term does not include computer data bases.
    Data, as used in this clause, means recorded information, regardless 
of form or the media on which it may be recorded. The term includes 
technical data and computer software. The term does not include 
information incidental to administration, such as financial, 
administrative, cost or pricing or management information.
    Form, fit, and function data, as used in this clause, means data 
relating to items, components, or processes that are sufficient to 
enable physical and functional interchangeability as well as data 
identifying source, size, configuration, mating and attachment 
characteristics, functional characteristics, and performance 
requirements except that for computer software it means data identifying 
source, functional characteristics, and performance requirements but 
specifically excludes the source code, algorithm, process, formulae, and 
flow charts of the software.
    Limited rights data, as used in this clause, means data (other than 
computer software) developed at private expense that embody trade 
secrets or are commercial or financial and confidential or privileged.
    Restricted computer software, as used in this clause, means computer 
software developed at private expense and that is a trade secret; is 
commercial or financial and confidential or privileged; or is published 
copyrighted computer software; including modifications of such computer 
software.
    Protected data, as used in this clause, means technical data or 
commercial or financial data first produced in the performance of the 
award which, if it had been obtained from and first produced by a non-
federal party, would be a trade secret or commercial or financial 
information that is privileged or confidential under the meaning of 5 
U.S.C. 552(b)(4) and which data is marked as being protected data by a 
party to the award.
    Protected rights, as used in this clause, mean the rights in 
protected data set forth in the Protected Rights Notice of paragraph (g) 
of this clause.
    Technical data, as used in this clause, means that data which are of 
a scientific or technical nature. Technical data does not include 
computer software, but does include manuals and instructional materials 
and technical data formatted as a computer data base.
    Unlimited rights, as used in this clause, means the right of the 
Government to use, disclose, reproduce, prepare derivative works, 
distribute copies to the public, and perform publicly and display 
publicly, in any manner and for any purpose whatsoever, and to have or 
permit others to do so.

                        (b) Allocation of Rights

    (1) Except as provided in paragraph (c) of this clause regarding 
copyright, the Government shall have unlimited rights in--
    (i) Data specifically identified in this agreement as data to be 
delivered without restriction;
    (ii) Form, fit, and function data delivered under this agreement;
    (iii) Data delivered under this agreement (except for restricted 
computer software) that constitute manuals or instructional and training 
material for installation, operation, or routine maintenance and repair 
of items, components, or processes delivered or furnished for use under 
this agreement; and
    (iv) All other data delivered under this agreement unless provided 
otherwise for protected data in accordance with paragraph (g) of this 
clause or for limited rights data or restricted computer software in 
accordance with paragraph (h) of this clause.
    (2) The Recipient shall have the right to--
    (i) Protect rights in protected data delivered under this agreement 
in the manner and to the extent provided in paragraph (g) of this 
clause;
    (ii) Withhold from delivery those data which are limited rights data 
or restricted computer software to the extent provided in paragraph (h) 
of this clause;
    (iii) Substantiate use of, add, or correct protected rights or 
copyrights notices and to take other appropriate action, in accordance 
with paragraph (e) of this clause; and
    (iv) Establish claim to copyright subsisting in data first produced 
in the performance of this agreement to the extent provided in 
subparagraph (c)(1) of this clause.

[[Page 182]]

                              (c) Copyright

    (1) Data first produced in the performance of this agreement. Except 
as otherwise specifically provided in this agreement, the Recipient may 
establish, without the prior approval of the Contracting Officer, claim 
to copyright subsisting in any data first produced in the performance of 
this agreement. If claim to copyright is made, the Recipient shall affix 
the applicable copyright notice of 17 U.S.C. 401 or 402 and 
acknowledgment of Government sponsorship (including agreement number) to 
the data when such data are delivered to the Government, as well as when 
the data are published or deposited for registration as a published work 
in the U.S. Copyright Office. For such copyrighted data, including 
computer software, the Recipient grants to the Government, and others 
acting on its behalf, a paid-up nonexclusive, irrevocable, worldwide 
license to reproduce, prepare derivative works, distribute copies to the 
public, and perform publicly and display publicly, by or on behalf of 
the Government, for all such data.
    (2) Data not first produced in the performance of this agreement. 
The Recipient shall not, without prior written permission of the 
Contracting Officer, incorporate in data delivered under this agreement 
any data that are not first produced in the performance of this 
agreement and that contain the copyright notice of 17 U.S.C. 401 or 402, 
unless the Recipient identifies such data and grants to the Government, 
or acquires on its behalf, a license of the same scope as set forth in 
subparagraph (c)(1) of this clause; provided, however, that if such data 
are computer software, the Government shall acquire a copyright license 
as set forth in subparagraph (h)(3) of this clause if included in this 
agreement or as otherwise may be provided in a collateral agreement 
incorporated or made a part of this agreeement.
    (3) Removal of copyright notices. The Government agrees not to 
remove any copyright notices placed on data pursuant to this paragraph 
(c), and to include such notices on all reproductions of the data.

                (d) Release, Publication and Use of Data

    (1) The Receipt shall have the right to use, release to others, 
reproduce, distribute, or publish any data first produced or 
specifically used by the Recipient in the performance of this contract, 
except to the extent such data may be subject to the Federal export 
control or national security laws or regulations, or unless otherwise 
provided in this paragraph of this clause or expressly set forth in this 
contract.
    (2) The Recipient agrees that to the extent it receives or is given 
access to data necessary for the performance of this agreement which 
contain restrictive markings, the Recipient shall treat the data in 
accordance with such markings unless otherwise specifically authorized 
in writing by the Contracting Officer.

                    (e) Unauthorized Marking of Data

    (1) Notwithstanding any other provisions of this agreement 
concerning inspection or acceptance, if any data delivered under this 
agreement are marked with the notices specified in subparagraph (g)(2) 
or (g)(3) of this clause and use of such is not authorized by this 
clause, or if such data bears any other restrictive or limiting markings 
not authorized by this agreement, the Contracting Officer may at any 
time either return the data to the Recipient or cancel or ignore the 
markings. However, the following procedures shall apply prior to 
canceling or ignoring the markings.
    (i) The Contracting Officer shall make written inquiry to the 
Recipient affording the Recipient 30 days from receipt of the inquiry to 
provide written justification to substantiate the propriety of the 
markings;
    (ii) If the Recipient fails to respond or fails to provide written 
justification to substantiate the propriety of the markings within the 
30-day period (or a longer time not exceeding 90 days approved in 
writing by the Contracting Officer for good cause shown), the Government 
shall have the right to cancel or ignore the markings at any time after 
said period and the data will no longer be made subject to any 
disclosure prohibitions.
    (iii) If the Recipient provides written justification to 
substantiate the propriety of the markings within the period set in 
subdivision (e)(1)(i) of this clause, the Contracting Officer shall 
consider such written justification and determine whether or not the 
markings are to be cancelled or ignored. If the Contracting Officer 
determines that the markings are authorized, the Recipient shall be so 
notified in writing. If the Contracting Officer determines, with 
concurrence of the head of the contracting activity, that the markings 
are not authorized, the Contracting Officer shall furnish the Recipient 
a written determination, which determination shall become the final 
agency decision regarding the appropriateness of the markings unless the 
Recipient files suit in a court of competent jurisdiction within 90 days 
of receipt of the Contracting Officer's decision. The Government shall 
continue to abide by the markings under this subdivision (e)(1)(iii) 
until final resolution of the matter either by the Contracting Officer's 
determination become final (in which instance the Government shall 
thereafter have the right to cancel or ignore the markings at any time 
and the data will no longer be made subject to any disclosure 
prohibitions), or by final disposition of the matter by court decision 
if suit is filed.
    (2) The time limits in the procedures set forth in subparagraph 
(e)(1) of this clause

[[Page 183]]

may be modified in accordance with agency regulations implementing the 
Freedom of Information Act (5 U.S.C. 552) if necessary to respond to a 
request thereunder.

                    (f) Omitted or Incorrect Markings

    (1) Data delivered to the Government without either the limited 
rights or restricted rights notice as authorized by paragraph (g) of 
this clause, or the copyright notice required by paragraph (c) of this 
clause, shall be deemed to have been furnished with unlimited rights, 
and the Government assumes no liability for the disclosure, use, or 
reproduction of such data. However, to the extent the data has not been 
disclosed without restriction outside the Government, the Recipient may 
request, within 6 months (or a longer time approved by the Contracting 
Officer for good cause shown) after delivery of such data, permission to 
have notices placed on qualifying data at the Recipient's expense, and 
the Contracting Officer may agree to do so if the Recipient--
    (i) Identifies the data to which the omitted notice is to be 
applied;
    (ii) Demonstrates that the omission of the notice was inadvertent;
    (iii) Establishes that the use of the proposed notice is authorized; 
and
    (iv) Acknowledges that the Government has no liability with respect 
to the disclosure, use, or reproduction of any such data made prior to 
the addition of the notice or resulting from the omission of the notice.
    (2) The Contracting Officer may also:
    (i) Permit correction at the Recipient's expense of incorrect 
notices if the Recipient identifies the data on which correction of the 
notice is to be made, and demonstrates that the correct notice is 
authorized; or
    (ii) Correct any incorrect notices.

                      (g) Rights to Protected Data

    (1) The Recipient may, with the concurrence of DOE, claim and mark 
as protected data, any data first produced in the performance of this 
award that would have been treated as a trade secret if developed at 
private expense. Any such claimed ``protected data'' will be clearly 
marked with the following Protected Rights Notice, and will be treated 
in accordance with such Notice, subject to the provisions of paragraphs 
(e) and (f) of this clause.

                         PROTECTED RIGHTS NOTICE

    These protected data were produced under agreement no. ------ with 
the U.S. Department of Energy and may not be published, disseminated, or 
disclosed to others outside the Government until (Note:) The period of 
protection of such data is fully negotiable, but cannot exceed the 
applicable statutorily authorized maximum), unless express written 
authorization is obtained from the recipient. Upon expiration of the 
period of protection set forth in this Notice, the Government shall have 
unlimited rights in this data. This Notice shall be marked on any 
reproduction of this data, in whole or in part.

                             (End of notice)

    (2) Any such marked Protected Data may be disclosed under 
obligations of confidentiality for the following purposes:
    (a) For evaluation purposes under the restriction that the 
``Protected Data'' be retained in confidence and not be further 
disclosed; or
    (b) To subcontractors or other team members performing work under 
the Government's (insert name of program or other applicable activity) 
program of which this award is a part, for information or use in 
connection with the work performed under their activity, and under the 
restriction that the Protected Data be retained in confidence and not be 
further disclosed.
    (3) The obligations of confidentiality and restrictions on 
publication and dissemination shall end for any Protected Data.
    (a) At the end of the protected period;
    (b) If the data becomes publicly known or available from other 
sources without a breach of the obligation of confidentiality with 
respect to the Protected Data;
    (c) If the same data is independently developed by someone who did 
not have access to the Protected Data and such data is made available 
without obligations of confidentiality; or
    (d) If the Recipient disseminates or authorizes another to 
disseminate such data without obligations of confidentiality.
    (4) However, the Recipient agrees that the following types of data 
are not considered to be protected and shall be provided to the 
Government when required by this award without any claim that the data 
are Protected Data. The parties agree that notwithstanding the following 
lists of types of data, nothing precludes the Government from seeking 
delivery of additional data in accordance with this award, or from 
making publicly available additional non-protected data, nor does the 
following list constitute any admission by the Government that technical 
data not on the list is Protected Data. (Note: It is expected that this 
paragraph will specify certain types of mutually agreed upon data that 
will be available to the public and will not be asserted by the 
recipient/contractor as limited rights or protected data).
    (5) The Government's sole obligation with respect to any protected 
data shall be as set forth in this paragraph (g).

                  (h) Protection of Limited Rights Data

    When data other than that listed in subparagraphs (b)(1)(i), (ii), 
and (iii) of this clause are specified to be delivered under

[[Page 184]]

this agreement and such data qualify as either limited rights data or 
restricted computer software, the Recipient, if the Recipient desires to 
continue protection of such data, shall withhold such data and not 
furnish them to the Government under this agreement. As a condition to 
this withholding the Recipient shall identify the data being withheld 
and furnish form, fit, and function data in lieu thereof.

                          (i) Subaward/Contract

    The Recipient has the responsibility to obtain from its 
subrecipients/contractors all data and rights therein necessary to 
fulfill the Recipient's obligations to the Government under this 
agreement. If a subrecipient/contractor refuses to accept terms 
affording the Government such rights, the Recipient shall promptly bring 
such refusal to the attention of the Contracting Officer and not proceed 
with subaward/contract award without further authorization.

                    (j) Additional Data Requirements

    In addition to the data specified elsewhere in this agreement to be 
delivered, the Contracting Officer may, at anytime during agreement 
performance or within a period of 3 years after acceptance of all items 
to be delivered under this agreement, order any data first produced or 
specifically used in the performance of this agreement. This clause is 
applicable to all data ordered under this subparagraph. Nothing 
contained in this subparagraph shall require the Recipient to deliver 
any data the withholding of which is authorized by this clause or data 
which are specifically identified in this agreement as not subject to 
this clause. When data are to be delivered under this subparagraph, the 
Recipient will be compensated for converting the data into the 
prescribed form, for reproduction, and for delivery.
    (k) The Recipient agrees, except as may be otherwise specified in 
this agreement for specific data items listed as not subject to this 
paragraph, that the Contracting Officer or an authorized representative 
may, up to three years after acceptance of all items to be delivered 
under this contract, inspect at the Recipient's facility any data 
withheld pursuant to paragraph (h) of this clause, for purposes of 
verifying the Recipient's assertion pertaining to the limited rights or 
restricted rights status of the data or for evaluating work performance. 
Where the Recipient whose data are to be inspected demonstrates to the 
Contracting Officer that there would be a possible conflict of interest 
if the inspection were made by a particular representative, the 
Contracting Officer shall designate an alternate inspector.
    As prescribed in 600.325(e)(2), the following Alternate I and/or II 
may be inserted in the clause in the award instrument.

Alternate I:
    (h)(2) Notwithstanding subparagraph (h)(1) of this clause, the 
agreement may identify and specify the delivery of limited rights data, 
or the Contracting Officer may require by written request the delivery 
of limited rights data that has been withheld or would otherwise be 
withholdable. If delivery of such data is so required, the Recipient may 
affix the following ``Limited Rights Notice'' to the data and the 
Government will thereafter treat the data, in accordance with such 
Notice:

                          LIMITED RIGHTS NOTICE

    (a) These data are submitted with limited rights under Government 
agreement No. -------- (and subaward/contract No. --------, if 
appropriate). These data may be reproduced and used by the Government 
with the express limitation that they will not, without written 
permission of the Recipient, be used for purposes of manufacture nor 
disclosed outside the Government; except that the Government may 
disclose these data outside the Government for the following purposes, 
if any, provided that the Government makes such disclosure subject to 
prohibition against further use and disclosure:
    (1) Use (except for manufacture) by Federal support services 
contractors within the scope of their contracts;
    (2) This ``limited rights data'' may be disclosed for evaluation 
purposes under the restriction that the ``limited rights data'' be 
retained in confidence and not be further disclosed;
    (3) This ``limited rights data'' may be disclosed to other 
contractors participating in the Government's program of which this 
Recipient is a part for information or use (except for manufacture) in 
connection with the work performed under their awards and under the 
restriction that the ``limited rights data'' be retained in confidence 
and not be further disclosed;
    (4) This ``limited rights data'' may be used by the Government or 
others on its behalf for emergency repair or overhaul work under the 
restriction that the ``limited rights data'' be retained in confidence 
and not be further disclosed; and
    (5) Release to a foreign government, or instrumentality thereof, as 
the interests of the United States Government may require, for 
information or evaluation, or for emergency repair or overhaul work by 
such government. This Notice shall be marked on any reproduction of this 
data in whole or in part.
    (b) This Notice shall be marked on any reproduction of these data, 
in whole or in part.

                             (End of notice)

Alternate II:
    (h)(3)(i) Notwithstanding subparagraph (h)(1) of this clause, the 
agreement may

[[Page 185]]

identify and specify the delivery of restricted computer software, or 
the Contracting Officer may require by written request the delivery of 
restricted computer software that has been withheld or would otherwise 
be withholdable. If delivery of such computer software is so required, 
the Recipient may affix the following ``Restricted Rights Notice'' to 
the computer software and the Government will thereafter treat the 
computer software, subject to paragraphs (d) and (e) of this clause, in 
accordance with the Notice:

                        RESTRICTED RIGHTS NOTICE

    (a) This computer software is submitted with restricted rights under 
Government Agreement No. -------- (and subaward/contract --------, if 
appropriate). It may not be used, reproduced, or disclosed by the 
Government except as provided in paragraph (c) of this Notice or as 
otherwise expressly stated in the agreement.
    (b) This computer software may be--
    (1) Used or copied for use in or with the computer or computers for 
which it was acquired, including use at any Government installation to 
which such computer or computers may be transferred;
    (2) Used or copies for use in a backup computer if any computer for 
which it was acquired is inoperative;
    (3) Reproduced for safekeeping (archives) or backup purposes;
    (4) Modified, adapted, or combined with other computer software, 
provided that the modified, combined, or adapted portions of the 
derivative software are made subject to the same restricted rights;
    (5) Disclosed to and reproduced for use by Federal support service 
Contractors in accordance with subparagraphs (b)(1) through (4) of this 
clause, provided the Government makes such disclosure or reproduction 
subject to these restricted rights; and
    (6) Used or copies for use in or transferred to a replacement 
computer.
    (c) Notwithstanding the foregoing, if this computer software is 
published copyrighted computer software, it is licensed to the 
Government, without disclosure prohibitions, with the minimum rights set 
forth in paragraph (b) of this clause.
    (d) Any other rights or limitations regarding the use, duplication, 
or disclosure of this computer software are to be expressly stated in, 
or incorporated in, the agreement.
    (e) This Notice shall be marked on any reproduction of this computer 
software, in whole or in part.

                             (End of notice)

    (ii) Where it is impractical to include the Restricted Rights Notice 
on restricted computer software, the following short-form Notice may be 
used in lieu thereof:

                        RESTRICTED RIGHTS NOTICE

    Use, reproduction, or disclosure is subject to restrictions set 
forth in Agreement No. -------- (and subaward/contract --------, if 
appropriate) with -------- (name of Recipient and subrecipient/
contractor).

                             (End of notice)

    (iii) If restricted computer software is delivered with the 
copyright notice of 17 U.S.C. 401, it will be presumed to be published 
copyrighted computer software licensed to the Government without 
disclosure prohibitions, with the minimum rights set forth in paragraph 
(b) of this clause, unless the Recipient includes the following 
statement with such copyright notice: ``Unpublished--rights reserved 
under the Copyright Laws of the United States.''

                             (End of clause)



      Sec. Appendix B to Subpart D of Part 600--Contract Provisions

    All contracts awarded by a recipient, including those for amounts 
less than the simplified acquisition threshold, must contain the 
following provisions as applicable:
    1. Equal Employment Opportunity--All contracts must contain a 
provision requiring compliance with E.O. 11246 (3 CFR, 1964-1965 Comp., 
p. 339), ``Equal Employment Opportunity,'' as amended by E.O. 11375 (3 
CFR, 1966-1970 Comp., p. 684), ``Amending Executive Order 11246 Relating 
to Equal Employment Opportunity,'' and as supplemented by regulations at 
41 CFR chapter 60, ``Office of Federal Contract Compliance Programs, 
Equal Employment Opportunity, Department of Labor.''
    2. Copeland ``Anti-Kickback'' Act (18 U.S.C. 874 and 40 U.S.C. 
276c)--All contracts and subawards in excess of $2,000 for construction 
or repair awarded by recipients and subrecipients must include a 
provision for compliance with the Copeland ``Anti-Kickback'' Act (18 
U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR 
part 3, ``Contractors and Subcontractors on Public Building or Public 
Work Financed in Whole or in Part by Loans or Grants from the United 
States''). The Act provides that each contractor or subrecipient must be 
prohibited from inducing, by any means, any person employed in the 
construction, completion, or repair of public work, to give up any part 
of the compensation to which he is otherwise entitled. The recipient 
must report all suspected or reported violations to the responsible DOE 
contracting officer.
    3. Contact Work Hours and Safety Standards Act (40 U.S.C. 327-333)--
Where applicable, all contracts awarded by recipients in excess of 
$100,000 for construction and other purposes that involve the employment 
of mechanics

[[Page 186]]

or laborers must include a provision for compliance with Sections 102 
and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 
327-333), as supplemented by Department of Labor regulations (29 CFR 
part 5). Under Section 102 of the Act, each contractor is required to 
compute the wages of every mechanic and laborer on the basis of a 
standard work week of 40 hours. Work in excess of the standard work week 
is permissible provided that the worker is compensated at a rate of not 
less than 1\1/2\ times the basic rate of pay for all hours worked in 
excess of 40 hours in the work week. Section 107 of the Act is 
applicable to construction work and provides that no laborer or mechanic 
is required to work in surroundings or under working conditions which 
are unsanitary, hazardous or dangerous. These requirements do not apply 
to the purchases of supplies or materials or articles ordinarily 
available on the open market, or contracts for transportation or 
transmission of intelligence.
    4. Rights to Inventions and Data Made Under a Contract or 
Agreement--Contracts or agreements for the performance of experimental, 
development, or research work must provide for the rights of the Federal 
Government and the recipient in any resulting invention in accordance 
with 10 CFR 600.325 and Appendix A--Patent and Data Rights to Subpart D, 
Part 600.
    5. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water 
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended--Contracts 
and subawards of amounts in excess of $100,000 must contain a provision 
that requires the recipient to agree to comply with all applicable 
standards, orders or regulations issued pursuant to the Clean Air Act 
(41 U.S.C. 7401 et seq.) and the Federal Water Pollution control act as 
amended (33 U.S.C. 1251 et seq.). Violations must be reported to the 
responsible DOE contracting officer and the Regional Office of the 
Environmental Protection Agency (EPA).
    6. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)--Contractors who 
apply or bid for an award of $100,000 or more must file the required 
certification. Each tier certifies to the tier above that it will not 
and has not used Federal appropriated funds to pay any person or 
organization for influencing or attempting to influence an officer or 
employee of any agency, a member of Congress, officer or employee of 
Congress, or an employee of a member of Congress in connection with 
obtaining any Federal contract, grant or any other award covered by 31 
U.S.C.1352. Each tier must also disclose any lobbing with non-Federal 
funds that takes place in connection with obtaining any Federal award. 
Such disclosures are forwarded from tier to tier up to the recipient.
    7. Debarment and Suspension (E.O.s 12549 and 12689--Contract awards 
that exceed the simplified acquisition threshold and certain other 
contract awards must not be made to parties listed on nonprocurement 
portion of the General Services Administration's Lists of Parties 
Excluded from Federal Procurement and Nonprocurement Programs in 
accordance with E.O.s 12549 (3 CFR, 1986 Comp., p. 189) and 12689 (3 
CFR, 1989 Comp., p. 235),``Debarment and Suspension.'' This list 
contains the names of parties debarred, suspended, or otherwise excluded 
by agencies, and contractors declared ineligible under statutory or 
regulatory authority other than E.O. 12549. Contractors with awards that 
exceed the small purchase threshold must provide the required 
certification regarding its exclusion status and that of its principals.
    8. Davis-Bacon Act (40 U.S.C. 276a)--As a general rule, it is 
unlikely that the Davis-Bacon Act, which among other things requires 
payment of prevailing wages on projects for the construction of public 
works, would apply to financial assistance awards. However, the presence 
of certain factors (e.g., requirement of particular program statues; 
title to a construction facility resting in the Government) might 
necessitate a closer analysis of the award, to determine if the Davis-
Bacon Act would apply in the particular factual situation presented.

Subpart E [Reserved]



  Subpart F_Eligibility Determination for Certain Financial Assistance 
                  Programs_General Statement of Policy

    Source: 60 FR 65514, Dec. 20, 1995, unless otherwise noted.



Sec. 600.500  Purpose and scope.

    This subpart implements section 2306 of the Energy Policy Act of 
1992, 42 U.S.C. 13525, and sets forth a general statement of policy, 
including procedures and interpretations, for the guidance of 
implementing DOE officials in making mandatory pre-award determinations 
of eligibility for financial assistance under Titles XX through XXIII of 
that Act.



Sec. 600.501  Definitions.

    The definitions in Sec. 600.3 of this part, including the 
definition of the term ``financial assistance,'' are applicable to this 
subpart. In addition, as used in this subpart:
    Act means the Energy Policy Act of 1992.

[[Page 187]]

    Company means any business entity other than an organization of the 
type described in section 501(c)(3) of the Internal Revenue Code of 1954 
(26 U.S.C. Sec. 501 (c)(3)).
    Covered program means a program under Titles XX through XXIII of the 
Act. (A list of covered programs, updated periodically as appropriate, 
is maintained and published by the Department of Energy.)
    Parent company means a company that:
    (1) Exercises ultimate ownership of the applicant company either 
directly, by ownership of a majority of that company's voting 
securities, or indirectly, by control over a majority of that company's 
voting securities through one or more intermediate subsidiary companies 
or otherwise, and
    (2) Is not itself subject to the ultimate ownership control of 
another company.
    United States means the several States, the District of Columbia, 
and all commonwealths, territories, and possessions of the United 
States.
    United States-owned company means:
    (1) A company that has majority ownership by individuals who are 
citizens of the United States, or
    (2) A company organized under the laws of a State that either has no 
parent company or has a parent company organized under the laws of a 
State.
    Voting security has the meaning given the term in the Public Utility 
Holding Company Act (15 U.S.C. 15b(17)).



Sec. 600.502  What must DOE determine.

    A company shall be eligible to receive an award of financial 
assistance under a covered program only if DOE finds that--
    (a) Consistent with Sec. 600.503, the company's participation in a 
covered program would be in the economic interest of the United States; 
and
    (b) The company is either--
    (1) A United States-owned company; or
    (2) Incorporated or organized under the laws of any State and has a 
parent company which is incorporated or organized under the laws of a 
country which--
    (i) Affords to the United States-owned companies opportunities, 
comparable to those afforded to any other company, to participate in any 
joint venture similar to those authorized under the Act;
    (ii) Affords to United States-owned companies local investment 
opportunities comparable to those afforded to any other company; and
    (iii) Affords adequate and effective protection for the intellectual 
property rights of United States-owned companies.



Sec. 600.503  Determining the economic interest of the United States.

    In determining whether participation of an applicant company in a 
covered program would be in the economic interest of the United States 
under Sec. 600.502(a), DOE may consider any evidence showing that a 
financial assistance award would be in the economic interest of the 
United States including, but not limited to--
    (a) Investments by the applicant company and its affiliates in the 
United States in research, development, and manufacturing (including, 
for example, the manufacture of major components or subassemblies in the 
United States);
    (b) Significant contributions to employment in the United States by 
the applicant company and its affiliates; and
    (c) An agreement by the applicant company, with respect to any 
technology arising from the financial assistance being sought--
    (1) To promote the manufacture within the United States of products 
resulting from that technology (taking into account the goals of 
promoting the competitiveness of United States industry); and
    (2) To procure parts and materials from competitive suppliers.



Sec. 600.504  Information an applicant must submit.

    (a) Any applicant for financial assistance under a covered program 
shall submit with the application for financial assistance, or at such 
later time as may be specified by DOE, evidence for DOE to consider in 
making findings required under Sec. 600.502(a) and findings concerning 
ownership status under Sec. 600.502(b).

[[Page 188]]

    (b) If an applicant for financial assistance is submitting evidence 
relating to future undertakings, such as an agreement under Sec. 
600.503(c) to promote manufacture in the United States of products 
resulting from a technology developed with financial assistance or to 
procure parts and materials from competitive suppliers, the applicant 
shall submit a representation affirming acceptance of these 
undertakings. The applicant should also briefly describe its plans, if 
any, for any manufacturing of products arising from the program-
supported research and development, including the location where such 
manufacturing is expected to occur.
    (c) If an applicant for financial assistance is claiming to be a 
United States-owned company, the applicant must submit a representation 
affirming that it falls within the definition of that term provided in 
Sec. 600.501.
    (d) DOE may require submission of additional information deemed 
necessary to make any portion of the determination required by Sec. 
600.502.



Sec. 600.505  Other information DOE may consider.

    In making the determination under Sec. 600.502(b)(2), DOE may--
    (a) consider information on the relevant international and domestic 
law obligations of the country of incorporation of the parent company of 
an applicant;
    (b) consider information relating to the policies and practices of 
the country of incorporation of the parent company of an applicant with 
respect to:
    (1) The eligibility criteria for, and the experience of United 
States-owned company participation in, energy-related research and 
development programs;
    (2) Local investment opportunities afforded to United States-owned 
companies; and
    (3) Protection of intellectual property rights of United States-
owned companies;
    (c) Seek and consider advice from other federal agencies, as 
appropriate; and
    (d) Consider any publicly available information in addition to the 
information provided by the applicant.



     Sec. Appendix A to Part 600--Generally Applicable Requirements

                    Socioeconomic Policy Requirements

    Nondiscrimination in Federally Assisted Programs, 10 CFR part 1040 
(45 FR 40514, June 13, 1980), as proposed to be amended by 46 FR 49546 
(October 6, 1981).
    Nondiscrimination Provisions in Federally Assisted Construction 
Contracts, Part III of Executive Order 11246 (September 24, 1965), 3 CFR 
1964--65 Comp., p. 345.
    Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and 
Rehabilitation Act of 1970, as amended (42 U.S.C. 4581).
    Drug Abuse Office and Treatment Act of 1972, as amended (21 U.S.C. 
1174).
    Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151 et 
seq.).
    National Environmental Policy Act of 1969, as amended (42 U.S.C. 
4321 et seq.), 40 CFR part 1500, as implemented by (45 FR 20694, March 
28, 1980).
    Sec. 306, Clean Air Act, as amended (42 U.S.C. 7606c).
    Sec. 508, Federal Water Pollution Control Act of 1972 (33 U.S.C. 
1251 et seq.); Executive Order 11738, September 12, 1973.
    Title XIV, Public Health Service Act, as amended (42 U.S.C. 300f--et 
seq.).
    Sec. 102(a), Flood Disaster Protection Act of 1973 (Pub. L. 93-234, 
87 Stat. 975).
    10 CFR part 1022, ``Protection of Wetlands and Floodplains.''
    Uniform Relocation Assistance and Land Acquisition Policies Act of 
1970 (42 U.S.C. 4601 et seq.).
    Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1451 et 
seq.) (15 CFR part 930).
    Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
    Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.).
    Sec. 106, National Historic Preservation Act of 1966, as amended (16 
U.S.C. 470f); Executive Order 11593, ``Protection and Enhancement of the 
Cultural Environment,'' May 13, 1971, 3 CFR 1971 Comp., p. 154; 
Archaeological and Historic Preservation Act of 1966 (16 U.S.C. 469 et 
seq.); Protection of Historic and Cultural Properties, 36 CFR part 800.
    Wild and Scenic Rivers Act of 1968, as amended (16 U.S.C. 1271 et 
seq.).
    Protection of Human Subjects, 10 CFR part 745.
    Federal Laboratory Animal Welfare Act (7 U.S.C. 2131 et seq.) (9 CFR 
parts 1, 2, and 3).
    Lead-Based Paint Prohibition (42 U.S.C. 4831(b)).
    Sec. 7(b), Indian Self-Determination and Education Assistance Act 
(25 U.S.C. 450e(b)).
    Cargo Preference Act of 1954 (46 U.S.C. 1241(b)) (46 CFR Sec. 
381.7).

[[Page 189]]

    International Air Transportation Fair Competitive Practices Act of 
1974 (49 U.S.C. 1517).
    Executive Order 12138, ``Creating a National Women's Business 
Enterprise Policy and Prescribing Arrangements for Developing, 
Coordinating, and Implementing a National Program for Women's Business 
Enterprise,'' (May 18, 1979) 3 CFR 1979 Comp., p. 393.
    Sec. 403(b), Power Plant and Industrial Fuel Use Act of 1978, (42 
U.S.C. 8373(b)); Executive Order 12185 (December 17, 1979, 3 CFR 1979 
Comp., p. 474).

              Administrative and Fiscal Policy Requirements

    The Hatch Act (5 U.S.C. 1501-1508).
    Federal Reports Act, as amended by the Paperwork Reduction Act of 
1980, Pub. L. 96-511 (44 U.S.C. 3501 et seq.).
    OMB Circular A-111, Jointly Funded Assistance to State and Local 
Governments and Nonprofit Organizations--Policies and Procedures.
    Federal Claims Collection Act of 1966, Pub. L. 89-508, 89 Stat. 309 
(31 U.S.C. 951 et seq.).
    OMB Circular A-88, Coordinating Indirect Cost Rates and Audit at 
Educational Institutions.
    OMB Circular A-73, Audit of Federal Operations and Programs.
    Single Audit Act of 1984, Pub. L. 98-502.
    OMB Circular A-128, Audits of State and Local Governments.

[47 FR 44108, Oct. 5, 1982, as amended at 50 FR 42361, Oct. 18, 1985; 51 
FR 4297, Feb. 4, 1986]



         Sec. Appendix B to Part 600--Audit Report Distributees

    Distributee: Manager, Eastern Region, Office of Inspector General, 
U.S. Department of Energy, P.O. Box 1328, Oak Ridge, Tennessee 37831-
1328.
    For recipients in: Alabama, Arkansas, Connecticut, Delaware, 
District of Columbia, Florida, Georgia, Illinois, Indiana, Iowa, 
Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, 
Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New York, 
North Carolina, Ohio, Pennsylvania, Puerto Rico, Rhode Island, South 
Carolina, Tennessee, Vermont, Virgin Islands, Virginia, West Virginia, 
Wisconsin.
    Distributee: Manager, Western Region, Office of Inspector General, 
U.S. Department of Energy, P.O. Box 5400, Albuquerque, New Mexico 87115.
    For recipients in: Alaska, Arizona, California, Colorado, Hawaii, 
Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, 
Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, Wyoming.

[50 FR 42361, Oct. 18, 1985; 51 FR 4297, Feb. 4, 1986]



PART 601_NEW RESTRICTIONS ON LOBBYING--Table of Contents



                            Subpart A_General

Sec.
601.100 Conditions on use of funds.
601.105 Definitions.
601.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

601.200 Agency and legislative liaison.
601.205 Professional and technical services.
601.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

601.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

601.400 Penalties.
601.405 Penalty procedures.
601.410 Enforcement.

                          Subpart E_Exemptions

601.500 Secretary of Defense.

                        Subpart F_Agency Reports

601.600 Semi-annual compilation.
601.605 Inspector General report.

Appendix A to Part 601--Certification Regarding Lobbying
Appendix B to Part 601--Disclosure Form To Report Lobbying

    Authority: 31 U.S.C. 1352; 42 U.S.C. 7254 and 7256; 31 U.S.C. 6301-
6308; 28 U.S.C. 2461 note.

    Source: 55 FR 6737 and 6746, Feb. 26, 1990, unless otherwise noted.

    Cross Reference: See also Office of Management and Budget notice 
published at 54 FR 52306, Dec. 20, 1989.



                            Subpart A_General



Sec. 601.100  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative ageement to pay any person 
for influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with any of the following 
covered Federal actions: the awarding of any Federal contract, the 
making of any Federal

[[Page 190]]

grant, the making of any Federal loan, the entering into of any 
cooperative agreement, and the extension, continuation, renewal, 
amendment, or modification of any Federal contract, grant, loan, or 
cooperative agreement.
    (b) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or cooperative agreement shall file with that 
agency a certification, set forth in appendix A, that the person has not 
made, and will not make, any payment prohibited by paragraph (a) of this 
section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in appendix B, if such person has 
made or has agreed to make any payment using nonappropriated funds (to 
include profits from any covered Federal action), which would be 
prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in appendix A, whether that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.
    (e) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a disclosure form, set forth in appendix B, if that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.



Sec. 601.105  Definitions.

    For purposes of this part:
    (a) Agency, as defined in 5 U.S.C. 552(f), includes Federal 
executive departments and agencies as well as independent regulatory 
commissions and Government corporations, as defined in 31 U.S.C. 
9101(1).
    (b) Covered Federal action means any of the following Federal 
actions:
    (1) The awarding of any Federal contract;
    (2) The making of any Federal grant;
    (3) The making of any Federal loan;
    (4) The entering into of any cooperative agreement; and,
    (5) The extension, continuation, renewal, amendment, or modification 
of any Federal contract, grant, loan, or cooperative agreement.

Covered Federal action does not include receiving from an agency a 
commitment providing for the United States to insure or guarantee a 
loan. Loan guarantees and loan insurance are addressed independently 
within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR), and any other acquisition contract for real or personal property 
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct appropriation made by law to any person. The term does not 
include technical assistance which provides services instead of money, 
or other assistance in the form of revenue sharing, loans, loan 
guarantees, loan insurance, interest subsidies, insurance, or direct 
United States cash assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not 
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided 
in section 4 of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions 
of Indian tribes in that Act.
    (h) Influencing or attempting to influence means making, with the 
intent to influence, any communication to or appearance before an 
officer or employee

[[Page 191]]

or any agency, a Member of Congress, an officer or employee of Congress, 
or an employee of a Member of Congress in connection with any covered 
Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or 
insurance of a loan made by a person.
    (j) Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    (k) Officer or employee of an agency includes the following 
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government 
under title 5, U.S. Code, including a position under a temporary 
appointment;
    (2) A member of the uniformed services as defined in section 101(3), 
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title 
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, title 5, U.S. Code 
appendix 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society, State, and local government, 
regardless of whether such entity is operated for profit or not for 
profit. This term excludes an Indian tribe, tribal organization, or any 
other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly 
employed officer or employee of any person, compensation that is 
consistent with the normal compensation for such officer or employee for 
work that is not furnished to, not funded by, or not furnished in 
cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to perfessional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier, 
and subgrantees at any tier of the recipient of funds received in 
connection with a Federal contract, grant, loan, or cooperative 
agreement. The term excludes an Indian tribe, tribal organization, or 
any other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (p) Regularly employed means, with respect to an officer or employee 
of a person requesting or receiving a Federal contract, grant, loan, or 
cooperative agreement or a commitment providing for the United States to 
insure or guarantee a loan, an officer or employee who is employed by 
such person for at least 130 working days within one year immediately 
preceding the date of the submission that initiates agency consideration 
of such person for receipt of such contract, grant, loan, cooperative 
agreement, loan insurance commitment, or loan guarantee commitment. An 
officer or employee who is employed by such person for less than 130 
working days within one year immediately preceding the date of the 
submission that initiates agency consideration of such person shall be 
considered to be regularly employed as soon as he or she is employed by 
such person for 130 working days.
    (q) State means a State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, a territory or possession of 
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and 
powers.



Sec. 601.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:
    (1) Award of a Federal contract, grant, or cooperative agreement 
exceeding $100,000; or
    (2) An award of a Federal loan or a commitment providing for the 
United States to insure or guarantee a loan exceeding $150,000.

[[Page 192]]

    (b) Each person shall file a certification, and a disclosure form, 
if required, upon receipt by such person of:
    (1) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or
    (2) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000,

unless such person previously filed a certification, and a disclosure 
form, if required, under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraphs (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action; or
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.
    (d) Any person who requests or receives from a person referred to in 
paragraphs (a) or (b) of this section:
    (1) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,
    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement,


shall file a certification, and a disclosure form, if required, to the 
next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraphs 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.
    (h) No reporting is required for an activity paid for with 
appropriated funds if that activity is allowable under either subpart B 
or C.



                  Subpart B_Activities by Own Employees



Sec. 601.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec. 
601.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement if 
the payment is for agency and legislative liaison activities not 
directly related to a covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.

[[Page 193]]

    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:
    (1) Discussing with an agency (including individual demonstrations) 
the qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Public Law 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec. 601.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
601.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement or 
an extension, continuation, renewal, amendment, or modification of a 
Federal contract, grant, loan, or cooperative agreement if payment is 
for professional or technical services rendered directly in the 
preparation, submission, or negotiation of any bid, proposal, or 
application for that Federal contract, grant, loan, or cooperative 
agreement or for meeting requirements imposed by or pursuant to law as a 
condition for receiving that Federal contract, grant, loan, or 
cooperative agreement.
    (b) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting of a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (c) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.

[[Page 194]]

    (d) Only those services expressly authorized by this section are 
allowable under this section.



Sec. 601.210  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.



            Subpart C_Activities by Other Than Own Employees



Sec. 601.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
601.100 (a), does not apply in the case of any reasonable payment to a 
person, other than an officer or employee of a person requesting or 
receiving a covered Federal action, if the payment is for professional 
or technical services rendered directly in the preparation, submission, 
or negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec. 601.110 (a) and (b) 
regarding filing a disclosure form by each person, if required, shall 
not apply with respect to professional or technical services rendered 
directly in the preparation, submission, or negotiation of any 
commitment providing for the United States to insure or guarantee a 
loan.
    (c) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting or a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (e) Persons other than officers or employees of a person requesting 
or receiving a covered Federal action include consultants and trade 
associations.
    (f) Only those services expressly authorized by this section are 
allowable under this section.



                   Subpart D_Penalties and Enforcement



Sec. 601.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than $15,000 and not more than 
$150,000 for each such expenditure.
    (b) Any person who fails to file or amend the disclosure form (see 
appendix B) to be filed or amended if required herein, shall be subject 
to a civil penalty of not less than $15,000 and not more than $150,000 
for each such failure.

[[Page 195]]

    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent the imposition of such civil penalty for a failure 
occurring before that date. An administrative action is commenced with 
respect to a failure when an investigating official determines in 
writing to commence an investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.
    (e) First offenders under paragraphs (a) or (b) of this section 
shall be subject to a civil penalty of $15,000, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $15,000 and $150,000, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.

[55 FR 6737 and 6746, Feb. 26, 1990, as amended at 62 FR 46183, Sept. 2, 
1997; 74 FR 66032, Dec. 14, 2009]



Sec. 601.405  Penalty procedures.

    Agencies shall impose and collect civil penalties pursuant to the 
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 3803 
(except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 3812, insofar 
as these provisions are not inconsistent with the requirements herein.



Sec. 601.410  Enforcement.

    The head of each agency shall take such actions as are necessary to 
ensure that the provisions herein are vigorously implemented and 
enforced in that agency.



                          Subpart E_Exemptions



Sec. 601.500  Secretary of Defense.

    (a) The Secretary of Defense may exempt, on a case-by-case basis, a 
covered Federal action from the prohibition whenever the Secretary 
determines, in writing, that such an exemption is in the national 
interest. The Secretary shall transmit a copy of each such written 
exemption to Congress immediately after making such a determination.
    (b) The Department of Defense may issue supplemental regulations to 
implement paragraph (a) of this section.



                        Subpart F_Agency Reports



Sec. 601.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see appendix B) and, on May 31 and November 30 of each year, 
submit to the Secretary of the Senate and the Clerk of the House of 
Representatives a report containing a compilation of the information 
contained in the disclosure reports received during the six-month period 
ending on March 31 or September 30, respectively, of that year.
    (b) The report, including the compilation, shall be available for 
public inspection 30 days after receipt of the report by the Secretary 
and the Clerk.
    (c) Information that involves intelligence matters shall be reported 
only to the Select Committee on Intelligence of the Senate, the 
Permanent Select Committee on Intelligence of the House of 
Representatives, and the Committees on Appropriations of the Senate and 
the House of Representatives in accordance with procedures agreed to by 
such committees. Such information shall not be available for public 
inspection.
    (d) Information that is classified under Executive Order 12356 or 
any successor order shall be reported only to the Committee on Foreign 
Relations of the Senate and the Committee on Foreign Affairs of the 
House of Representatives or the Committees on Armed Services of the 
Senate and the House of Representatives (whichever such committees have 
jurisdiction of matters involving such information) and to the

[[Page 196]]

Committees on Appropriations of the Senate and the House of 
Representatives in accordance with procedures agreed to by such 
committees. Such information shall not be available for public 
inspection.
    (e) The first semi-annual compilation shall be submitted on May 31, 
1990, and shall contain a compilation of the disclosure reports received 
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and 
Budget (OMB), are required to provide machine-readable compilations to 
the Secretary of the Senate and the Clerk of the House of 
Representatives no later than with the compilations due on May 31, 1991. 
OMB shall provide detailed specifications in a memorandum to these 
agencies.
    (g) Non-major agencies are requested to provide machine-readable 
compilations to the Secretary of the Senate and the Clerk of the House 
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec. 601.605  Inspector General report.

    (a) The Inspector General, or other official as specified in 
paragraph (b) of this section, of each agency shall prepare and submit 
to Congress each year, commencing with submission of the President's 
Budget in 1991, an evaluation of the compliance of that agency with, and 
the effectiveness of, the requirements herein. The evaluation may 
include any recommended changes that may be necessary to strengthen or 
improve the requirements.
    (b) In the case of an agency that does not have an Inspector 
General, the agency official comparable to an Inspector General shall 
prepare and submit the annual report, or, if there is no such comparable 
official, the head of the agency shall prepare and submit the annual 
report.
    (c) The annual report shall be submitted at the same time the agency 
submits its annual budget justifications to Congress.
    (d) The annual report shall include the following: All alleged 
violations relating to the agency's covered Federal actions during the 
year covered by the report, the actions taken by the head of the agency 
in the year covered by the report with respect to those alleged 
violations and alleged violations in previous years, and the amounts of 
civil penalties imposed by the agency in the year covered by the report.



      Sec. Appendix A to Part 601--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a civil penalty of not less than $15,000 and not more than 
$150,000 for each such failure.

            Statement for Loan Guarantees and Loan Insurance

    The undersigned states, to the best of his or her knowledge and 
belief, that:
    If any funds have been paid or will be paid to any person for 
influencing or attempting

[[Page 197]]

to influence an officer or employee of any agency, a Member of Congress, 
an officer or employee of Congress, or an employee of a Member of 
Congress in connection with this commitment providing for the United 
States to insure or guarantee a loan, the undersigned shall complete and 
submit Standard Form-LLL, ``Disclosure Form to Report Lobbying,'' in 
accordance with its instructions.
    Submission of this statement is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required statement shall be 
subject to a civil penalty of not less than $15,000 and not more than 
$150,000 for each such failure.

[55 FR 6737 and 6746, Feb. 26, 1990, as amended at 62 FR 46184, Sept. 2, 
1997; 74 FR 66032, Dec. 14, 2009]

[[Page 198]]

       Appendix B to Part 601--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC01OC91.009


[[Page 199]]


[GRAPHIC] [TIFF OMITTED] TC01OC91.010


[[Page 200]]


[GRAPHIC] [TIFF OMITTED] TC01OC91.011



PART 602_EPIDEMIOLOGY AND OTHER HEALTH STUDIES FINANCIAL ASSISTANCE PROGRAM--Table of Contents



Sec.
602.1 Purpose and scope.
602.2 Applicability.
602.3 Definitions.
602.4 Deviations.
602.5 Epidemiology and Other Health Studies Financial Assistance 
          Program.
602.6 Eligibility.
602.7 Solicitation.
602.8 Application requirements.

[[Page 201]]

602.9 Application evaluation and selection.
602.10 Additional requirements.
602.11 Funding.
602.12 Cost sharing.
602.13 Limitation of DOE liability.
602.14 Fee.
602.15 Indirect cost limitations.
602.16 National security.
602.17 Continuation funding and reporting requirements.
602.18 Dissemination of results.
602.19 Records and data.

Appendix A to Part 602--Schedule of Renewal Applications and Reports

    Authority: 42 U.S.C. 2051; 42 U.S.C. 5817; 42 U.S.C. 5901-5920; 42 
U.S.C. 7254 and 7256; 31 U.S.C. 6301-6308.

    Source: 60 FR 5841, Jan. 31, 1995, unless otherwise noted.



Sec. 602.1  Purpose and scope.

    This part sets forth the policies and procedures applicable to the 
award and administration of grants and cooperative agreements by DOE 
(through the Office of Health, Safety and Security or any office to 
which its functions are subsequently redelegated) for health related 
research, education/training, conferences, communication, and related 
activities.

[60 FR 5841, Jan. 31, 1995, as amended at 71 FR 68729, Nov. 28, 2006]



Sec. 602.2  Applicability.

    (a) This part applies to all grants and cooperative agreements 
awarded after the effective date of this rule.
    (b) Except as otherwise provided by this part, the award and 
administration of grants and cooperative agreements shall be governed by 
10 CFR part 600 (DOE Financial Assistance Rules).



Sec. 602.3  Definitions.

    In addition to the definitions provided in 10 CFR part 600, the 
following definitions are provided for purposes of this part:
    Conference and communication activities means scientific or 
technical conferences, symposia, workshops, seminars, public meetings, 
publications, video or slide shows, and other presentations for the 
purpose of communicating or exchanging information or views pertinent to 
DOE.
    DOE means the United States Department of Energy.
    Education/Training means support for education or related activities 
for an individual or organization that will enhance educational levels 
and skills, in particular, scientific or technical areas of interest to 
DOE.
    Epidemiology and Other Health Studies means research pertaining to 
potential health effects resulting from DOE or predecessor agency 
operations or from any aspect of energy production, transmission, or use 
(including electromagnetic fields) in the United States and abroad. 
Related systems or activities to enhance these areas, as well as other 
program areas that may be described by notice published in the Federal 
Register, are also included.
    Principal investigator means the scientist or other individual 
designated by the recipient to direct the project.
    Research means basic and applied research and that part of 
development not related to the development of specific systems or 
products. The primary aim of research is scientific study and 
experimentation directed toward advancing the state of the art or 
increasing knowledge or understanding rather than focusing on a specific 
system or product.



Sec. 602.4  Deviations.

    (a) Single-case deviations from this part may be authorized in 
writing by the DOE Chief Health, Safety and Security Officer, the Head 
of the Contracting Activity, or their designees, upon the written 
request of DOE staff, an applicant for award, or a recipient. A request 
from an applicant or a recipient must be submitted to or through the 
cognizant contracting officer.
    (b) Whenever a proposed deviation from this part would be a 
deviation from 10 CFR part 600, the deviation must also be authorized in 
accordance with the procedures prescribed in that part.

[60 FR 5841, Jan. 31, 1995, as amended at 71 FR 68729, Nov. 28, 2006]



Sec. 602.5  Epidemiology and Other Health Studies Financial Assistance Program.

    (a) DOE may issue under this part awards for research, education/
training, conferences, communication, and related activities in the 
Office of

[[Page 202]]

Health, Safety and Security program areas set forth in paragraph (b) of 
this section.
    (b) The program areas are:
    (1) Health experience of DOE and DOE contractor workers;
    (2) Health experience of populations living near DOE facilities;
    (3) Workers exposed to toxic substances, such as beryllium;
    (4) Use of biomarkers to recognize exposure to toxic substances;
    (5) Epidemiology and other health studies relating to energy 
production, transmission, and use (including electromagnetic fields) in 
the United States and abroad;
    (6) Compilation, documentation, management, use, and analysis of 
data for the DOE Comprehensive Epidemiologic Data Resource; and
    (7) Other systems or activities enhancing these areas, as well as 
other program areas as may be described by notice published in the 
Federal Register.

[60 FR 5841, Jan. 31, 1995, as amended at 71 FR 68729, Nov. 28, 2006]



Sec. 602.6  Eligibility.

    Any individual or entity other than a Federal agency is eligible for 
a grant or cooperative agreement. An unaffiliated individual is also 
eligible for a grant or cooperative agreement.



Sec. 602.7  Solicitation.

    (a) The Catalog of Federal Domestic Assistance number for 10 CFR 
part 602 is 81.108 and its solicitation control number is EOHSFAP 10 CFR 
part 602.
    (b) An application for a new or renewal award under this 
solicitation may be submitted at any time to DOE at the address 
specified in paragraph (c) of this section. New or renewal applications 
shall receive consideration for funding generally within 6 months but, 
in any event, no later than 12 months from the date of receipt by DOE.
    (c) Except as otherwise provided in a notice of availability, 
applicants may obtain application forms, described in 602.8(b) of this 
part, and additional information from the Office of Illness and Injury 
Prevention Programs, HS-13/Germantown Building, U.S. Department of 
Energy, 1000 Independence Avenue, SW., Washington, DC 20585-1290, 301-
903-4501, and shall submit applications to the same address.
    (d) DOE will publish program notices in the Federal Register 
regarding the availability of epidemiology and other health studies 
financial assistance. DOE may also use other means of communication, as 
appropriate, such as the publication of notices of availability in trade 
and professional journals and news media.
    (1) Each notice of availability shall cite this part and shall 
include:
    (i) The Catalog of Federal Domestic Assistance number and 
solicitation control number of the program;
    (ii) The amount of money available or estimated to be available for 
award;
    (iii) The name of the responsible DOE program official to contact 
for additional information and an address where application forms may be 
obtained;
    (iv) The address for submission of applications; and
    (v) Any evaluation criteria in addition to those set forth in Sec. 
602.9 of this part.
    (2) The notice of availability may also include any other relevant 
information helpful to applicants such as:
    (i) Program objectives;
    (ii) A project agenda or potential area of project initiatives;
    (iii) Problem areas requiring additional effort; and
    (iv) Any other information that identifies areas in which grants or 
cooperative agreements may be made.
    (e) DOE is under no obligation to pay for any costs associated with 
the preparation or submission of applications.
    (f) DOE reserves the right to fund, in whole or in part, any, all, 
or none of the applications submitted.
    (g) To be considered for a renewal award under this part, an 
incumbent recipient shall submit a continuation or renewal application, 
as provided in Sec. 602.8 (c) and (h) of this part.

[60 FR 5841, Jan. 31, 1995, as amended at 71 FR 68729, Nov. 28, 2006]



Sec. 602.8  Application requirements.

    (a) An original and seven copies of the application for initial 
support must be submitted, except that State and local governments and 
Indian tribal

[[Page 203]]

governments shall not be required to submit more than the original and 
two copies of the application.
    (b) Each new or renewal application in response to this part must 
include:
    (1) An application face page, DOE Form 4650.2 (approved by OMB under 
OMB Control No. 1910-1400). However, the face page of an application 
submitted by a State or local government or an Indian tribal government 
shall be the face page of Standard Form 424 (approved by OMB under OMB 
Control Number 0348-0043).
    (2) A detailed description of the proposed project, including its 
objectives, its relationship to DOE's program, its impact on the 
environment, if any, and the applicant's plan for carrying it out.
    (3) Detailed information about the background and experience of the 
recipients of funds or, as appropriate, the principal investigator(s) 
(including references to publications), the facilities and experience of 
the applicant, and the cost-sharing arrangements, if any.
    (4) A detailed budget for the entire proposed period of support with 
written justification sufficient to evaluate the itemized list of costs 
provided on the entire project. Applicants should note the following 
when preparing budgets:
    (i) Numerical details on items of cost provided by State and local 
government and Indian tribal government applicants shall be on Standard 
Form 424A, ``Budget Information for Non-Construction Programs'' 
(approved under OMB Control No. 0348-0044). All other applicants shall 
use budget forms ERF 4620.1 (approved by OMB under Control No. 1910-
1400).
    (ii) DOE may, subsequent to receipt of an application, request 
additional budgetary information from an applicant when necessary for 
clarification or make informed pre-award determinations under 10 CFR 
part 600.
    (5) Any pre-award assurances required pursuant to 10 CFR parts 600 
and 602.
    (c) Applications for a renewal award must be submitted with an 
original and seven copies, except that State and local governments and 
Indian tribal government applicants are required to submit only an 
original and two copies (Approved by OMB under OMB Control Numbers 0348-
00050348-0009)
    (d) The application must be signed by an official who is authorized 
to act for the applicant organization and to commit the applicant to 
comply with the terms and conditions of the award, if one is issued, or 
if unaffiliated, by the individual applicant. (See Sec. 602.17(a)(1) 
for requirements on continuation awards.)
    (e) DOE may return an application that does not include all 
information and documentation required by statute, this part, 10 CFR 
part 600, or the notice of availability, when the nature of the omission 
precludes review of the application.
    (f) During the review of a complete application, DOE may request the 
submission of additional information only if the information is 
essential to evaluate the application.
    (g) In addition to including the information described in paragraphs 
(b), (c), and (d) of this section, an application for a renewal award 
must be submitted no later than 6 months before the expiration of the 
project period and must be on the same forms as required for initial 
applications. The renewal application must outline and justify a program 
and budget for the proposed project period, showing in detail the 
estimated cost of the proposed project, together with an indication of 
the amount of cost sharing, if any. The application shall also describe 
and explain the reasons for any change in the scope or objectives of the 
proposed project and shall compare and explain any difference between 
the estimates in the proposed budget and actual costs experienced as of 
the date of the application.
    (h) DOE is not required to return an application to the applicant.
    (i) Renewal applications must include a separate section that 
describes the results of work accomplished through the date of the 
renewal application and how such results relate to the activities 
proposed to be undertaken in the renewal period.



Sec. 602.9  Application evaluation and selection.

    (a) Applications shall be evaluated for funding generally within 6 
months, but in any event no later than 12 months, from the date of 
receipt by

[[Page 204]]

DOE. After DOE has held an application for 6 months, the applicant may, 
in response to DOE's request, be required to revalidate the terms of the 
original application.
    (b) DOE shall perform an initial evaluation of all applications to 
ensure that the information required by this part is provided, that the 
proposed effort is technically sound and feasible, and that the effort 
is consistent with program funding priorities. For applications that 
pass the initial evaluation, DOE shall review and evaluate each 
application received based on the criteria set forth below and in 
accordance with the Office of Health, Safety and Security Merit Review 
System developed, as required, under DOE Financial Assistance 
Regulations, 10 CFR part 600.
    (c) DOE shall select evaluators on the basis of their professional 
qualifications and expertise. To ensure credible and inclusive peer 
review of applications, every effort will be made to select evaluators 
apart from DOE employees and contractors. Evaluators shall be required 
to comply with all applicable DOE rules or directives concerning the use 
of outside evaluators.
    (d) DOE shall evaluate new and renewal applications based on the 
following criteria that are listed in descending order of importance:
    (1) The scientific and technical merit of the proposed research;
    (2) The appropriateness of the proposed method or approach;
    (3) Competency of research personnel and adequacy of proposed 
resources;
    (4) Reasonableness and appropriateness of the proposed budget; and
    (5) Other appropriate factors consistent with the purpose of this 
part established and set forth in a Notice of Availability or in a 
specific solicitation.
    (e) DOE shall also consider as part of the evaluation other 
available advice or information, as well as program policy factors, such 
as ensuring an appropriate balance among the program areas listed in 
Sec. 602.5 of this part.
    (f) In addition to the evaluation criteria set forth in paragraphs 
(d) and (e) of this section, DOE shall consider the recipient's 
performance under the existing award during the evaluation of a renewal 
application.
    (g) Selection of applications for award will be based upon the 
findings of the technical evaluations (including peer reviews, as 
specified in the Office of Health, Safety and Security Merit Review 
System), the importance and relevance of the proposal to the Office of 
Health, Safety and Security's mission, and the availability of funds. 
Cost reasonableness and realism will also be considered.
    (h) After the selection of an application, DOE may, if necessary, 
enter into negotiations with an applicant. Such negotiations are not a 
commitment that DOE will make an award.

[60 FR 5841, Jan. 31, 1995, as amended at 71 FR 68729, Nov. 28, 2006]



Sec. 602.10  Additional requirements.

    (a) A recipient performing research or related activities involving 
the use of human subjects must comply with DOE regulations in 10 CFR 
part 745, ``Protection of Human Subjects,'' and any additional 
provisions that may be included in the special terms and conditions of 
an award.
    (b) A recipient performing research involving recombinant DNA 
molecules and/or organisms and viruses containing recombinant DNA 
molecules shall comply with the National Institutes of Health 
``Guidelines for Research Involving Recombinant DNA Molecules'' (51 FR 
16958, May 7, 1986), or such later revision of those guidelines, as may 
be published in the Federal Register. (The guidelines are available from 
the Office of Recombinant DNA Activities, National Institutes of Health, 
Building 31, Room BBB, Bethesda, MD 20892, or from the Office of Illness 
and Injury Prevention Programs, HS-13/Germantown Building, U.S. 
Department of Energy, 1000 Independence Avenue, SW., Washington, DC 
20585-1290).
    (c) A recipient performing research on warm-blooded animals shall 
comply with the Federal Laboratory Animal Welfare Act of 1966, as 
amended (7 USC 2131 et seq.), and the regulations promulgated thereunder 
by the Secretary of Agriculture at 9 CFR chapter I, subchapter A, 
pertaining to the care, handling, and treatment of warm-blooded

[[Page 205]]

animals held or used for research, teaching, or other activities 
supported by Federal awards. The recipient shall comply with the 
guidelines described in the Department of Health and Human Services 
Publication No. [NIH] 86-23, ``Guide for the Care and Use of Laboratory 
Animals,'' or succeeding revised editions. (This guide is available from 
the Office for Protection from Research Risks, Office of the Director, 
National Institutes of Health, Building 31, Room 4B09, Bethesda, MD 
20892, or from the Office of Illness and Injury Prevention Programs, HS-
13/Germantown Building, U.S. Department of Energy, 1000 Independence 
Avenue, SW., Washington, DC 20585-1290).

[60 FR 5841, Jan. 31, 1995, as amended at 71 FR 68730, Nov. 28, 2006]



Sec. 602.11  Funding.

    (a) The project period during which DOE expects to provide support 
for an approved project under this part shall generally not exceed 3 
years and may exceed 5 years only if DOE makes a renewal award or 
otherwise extends the award. The project period shall be specified on 
the Notice of Financial Assistance Grant (DOE Form 4600.1).
    (b) Each budget period of an award under this part shall generally 
be 12 months and may be as much as 24 months, as DOE deems appropriate.



Sec. 602.12  Cost sharing.

    Cost sharing is not required, nor will it be considered, as a 
criterion in the evaluation and selection process unless otherwise 
provided under Sec. 602.9(d)(5).



Sec. 602.13  Limitation of DOE liability.

    Awards made under this part are subject to the requirement that the 
maximum DOE obligation to the recipient is the amount shown in the 
Notice of Financial Assistance Award as the amount of DOE funds 
obligated. DOE shall not be obligated to make any additional, 
supplemental, continuation, renewal, or other award for the same or any 
other purpose.



Sec. 602.14  Fee.

    (a) Notwithstanding 10 CFR part 600, a fee may be paid, in 
appropriate circumstances, to a recipient that is a small business 
concern, as qualified under the criteria and size standards of 13 CFR 
part 121, in order to permit the concern to participate in the 
Epidemiology and Other Health Studies Financial Assistance Program. 
Whether or not it is appropriate to pay a fee shall be determined by the 
contracting officer, who shall, at a minimum, apply the following 
guidelines:
    (1) Whether the acceptance of an award will displace other work that 
the small business is currently engaged in or committed to assume in the 
near future; or
    (2) Whether the acceptance of an award will, in the absence of 
paying a fee, cause substantial financial distress to the business. In 
evaluating financial distress, the contracting officer shall balance 
current displacement against reasonable future benefit to the company. 
(If the award will result in the beneficial expansion of the existing 
business base of the company, then no fee would generally be 
appropriate.) Fees shall not be paid to other entities except as a 
deviation from 10 CFR part 600, nor shall fees be paid under awards in 
support of conferences.
    (b) To request a fee, a small business concern shall submit with its 
application a written self-certification that it is a small business 
concern qualified under the criteria and size standards in 13 CFR part 
121. In addition, the application must state the amount of fee requested 
for the entire project period and the basis for requesting the amount 
and must also state why payment of a fee by DOE would be appropriate.
    (c) If the contracting officer determines that payment of a fee is 
appropriate under paragraph (a) of this section, the amount of fee shall 
be that determined to be reasonable by the contracting officer. The 
contracting officer shall, at a minimum, apply the following guidelines 
in determining the fee amount:
    (1) The fee base shall include the estimated allowable cost of 
direct salaries and wages and allocable fringe benefits. This fee base 
shall exclude all other direct and indirect costs.
    (2) The fee amount expressed as a percentage of the appropriate fee 
base,

[[Page 206]]

pursuant to paragraph (c)(1) of this section, shall not exceed the 
percentage rate of fee that would result if a Federal agency contracted 
for the same amount of salaries, wages, and allocable fringe benefits 
under a cost reimbursement contract.
    (3) Fee amounts, determined pursuant to paragraphs (c)(1) and (c)(2) 
of this section, shall be appropriately reduced when:
    (i) Advance payments are provided; and/or
    (ii) Title to property acquired with DOE funds vests in the 
recipient (10 CFR part 600).
    (d) Notwithstanding 10 CFR part 600, any fee awarded shall be a 
fixed fee and shall be payable on an annual basis in proportion to the 
work completed, as determined by the contracting officer, upon 
satisfactory submission and acceptance by DOE of the progress report. If 
the project period is shortened due to termination, or the project 
period is not fully funded, the fee shall be reduced by an appropriate 
amount.



Sec. 602.15  Indirect cost limitations.

    Awards issued under this part for conferences and scientific/
technical meetings will not include payment for indirect costs.



Sec. 602.16  National security.

    Activities under the Epidemiology and Other Health Studies Financial 
Assistance Program are not expected to involve classified information 
(i.e., Restricted Data, Formerly Restricted Data, National Security 
Information). However, if in the opinion of the recipient or DOE such 
involvement becomes expected prior to the closeout of the award, the 
recipient or DOE shall notify the other in writing immediately. If the 
recipient believes any information developed or acquired may be 
classified, the recipient shall not provide the potentially classified 
information to anyone, including DOE officials with whom the recipient 
normally communicates, except the Director, Office of Classification, 
and shall protect such information as if it were classified until 
notified by DOE that a determination has been made that it does not 
require such handling. Correspondence that includes the specific 
information in question shall be sent by registered mail to the U.S. 
Department of Energy, Attn: Director of Classification, HS-90, P.O. Box 
A, Germantown, MD 20875. If the information is determined to be 
classified, the recipient may wish to discontinue the project, in which 
case the recipient and DOE shall terminate the award by mutual 
agreement. If the award is to be terminated, all material deemed by DOE 
to be classified shall be forwarded to DOE in a manner specified by DOE 
for proper disposition. If the recipient and DOE wish to continue the 
award, even though classified information is involved, the recipient 
shall be requested to obtain both personnel and facility security 
clearances through the Office of Security Operations for Headquarters 
awards or from the cognizant field office for awards obtained through 
DOE field organizations. Costs associated with handling and protecting 
any such classified information shall be negotiated at the time that the 
determination to proceed is made.

[60 FR 5841, Jan. 31, 1995, as amended at 71 FR 68730, Nov. 28, 2006]



Sec. 602.17  Continuation funding and reporting requirements.

    (a) A recipient shall periodically report to DOE on the project's 
progress in meeting the project objectives of the award. The following 
types of reports shall be used:
    (1) Progress Reports. After issuance of an initial award, recipients 
must submit a satisfactory progress report to receive a continuation 
award for the remainder of the project period. The original and two 
copies of the required report must be submitted to the Office of Health, 
Safety and Security program manager 90 days prior to the anticipated 
continuation funding date. The report should include results of work to 
date and emphasize findings and their significance to the field, and any 
real or anticipated problems. The report also should contain the 
following information: On the first page, provide the project title, 
principal investigator/project director name, period of time the report 
covers, name and address of recipient organization, DOE

[[Page 207]]

award number, the amount of unexpended funds, if any, that are 
anticipated to be left at the end of the current budget period. If the 
amount exceeds 10 percent of the funds available for the budget period, 
provide information as to why the excess funds are anticipated to be 
available and how they will be used in the next budget period. The 
report should state whether the aims have changed from the original 
application, and if they have, provide revised aims. A completed budget 
page must be submitted with the continuation progress report when a 
change to anticipated future costs will exceed 25 percent of the 
original recommended future budget.
    (2) Notice of Energy Research and Development (R&D) Project. A 
Notice of Energy R&D Project, DOE Form 1430.22, which summarizes the 
purpose and scope of the project, must be submitted in accordance with 
the Distribution and Schedule of Documents set forth in appendix A to 
this part, Schedule of Renewal Applications and Reports. Copies of the 
form may be obtained from a DOE contracting office.
    (3) Special Reports. The recipient shall report the following events 
to DOE as soon after they occur as possible:
    (i) Problems, delays, or adverse conditions that will materially 
affect the ability to attain project objectives or prevent the meeting 
of time schedules and goals. The report must describe remedial action 
that the recipient has taken, or plans to take, and any action DOE 
should take to alleviate the problems.
    (ii) Favorable developments or events that enable meeting time 
schedules and goals sooner, or a lower cost than anticipated, or 
producing more beneficial results than originally projected.
    (4) Final Report. A final report covering the entire project must be 
submitted by the recipient within 90 days after the project period ends 
or the award is terminated. Satisfactory completion of an award will be 
contingent upon the receipt of this report. The final report shall 
follow the same outline as progress reports. Recipients will provide, as 
part of the final report, a description of records and data compiled 
during the project, along with a plan for its preservation or 
disposition (see Sec. 602.19 of this part). All manuscripts prepared 
for publication should be appended to the final report.
    (5) Financial Status Report (FSR) (OMB No. 0348-0039). The FSR is 
required within 90 days after completion of each budget period. For 
budget periods exceeding 12 months, an FSR is also required within 90 
days after this first 12 months unless waived by the contracting 
officer.
    (b) DOE may extend the deadline date for any report if the recipient 
submits a written request before the deadline, that adequately justifies 
an extension.
    (c) A table summarizing the various types of reports, time for 
submission, and number of copies is set forth in appendix A to this 
part. The schedule of reports shall be as prescribed in this table, 
unless the award document specifies otherwise. These reports shall be 
submitted by the recipient to the awarding office.
    (d) DOE, or its authorized representatives, may make site visits, at 
any reasonable time, to review the project. DOE may provide such 
technical assistance as may be requested.
    (e) Recipients may place performance reporting requirements on a 
subrecipient consistent with the provisions of this section.

[60 FR 5841, Jan. 31, 1995, as amended at 71 FR 68730, Nov. 28, 2006]



Sec. 602.18  Dissemination of results.

    (a) Recipients are encouraged to disseminate research results 
promptly. DOE reserves the right to utilize, and have others utilize to 
the extent it deems appropriate, the reports resulting from research 
awards.
    (b) DOE may waive the technical reporting requirement of progress 
reports set forth in Sec. 602.17, if the recipient submits to DOE a 
copy of its own report that is published or accepted for publication in 
a recognized scientific or technical journal and that satisfies the 
information requirements of the program.
    (c) Recipients are urged to publish results through normal 
publication channels in accordance with the applicable provisions of 10 
CFR part 600.
    (d) The article shall include an acknowledgement that the project 
was

[[Page 208]]

supported, in whole or in part, by a DOE award, and specify the award 
number, but state that such support does not constitute an endorsement 
by DOE of the views expressed in the article.



Sec. 602.19  Records and data.

    (a) In some cases, DOE will require submission of certain project 
records or data to facilitate mission-related activities. Recipients, 
therefore, must take adequate steps to ensure proper management, 
control, and preservation of all project records and data.
    (b) Awardees must ensure that all project data is adequately 
documented. Documentation shall:
    (1) Reference software used to compile, manage, and analyze data;
    (2) Define all technical characteristics necessary for reading or 
processing the records;
    (3) Define file and record content and codes;
    (4) Describe update cycles or conditions and rules for adding or 
deleting information; and
    (5) Detail instrument calibration effects, sampling and analysis, 
space and time coverage, quality control measures, data algorithms and 
reduction methods, and other activities relevant to data collection and 
assembly.
    (c) Recipients agree to comply with designated DOE records and data 
management requirements, including providing electronic data in 
prescribed formats and retention of specified records and data for 
eventual transfer to the Comprehensive Epidemiologic Data Resource or to 
another repository, as directed by DOE. Recipients will provide, as part 
of the final report, a description of records and data compiled during 
the project along with a plan for its preservation or disposition.
    (d) Recipients agree to make project records and data available as 
soon as possible when requested by DOE.



   Sec. Appendix A to Part 602--Schedule of Renewal Applications and 
                                 Reports


------------------------------------------------------------------------
                                                               Number of
                                                                 copies
               Type                          When due             for
                                                                awarding
                                                                 office
------------------------------------------------------------------------
1. Summary: 200 words on scope and  Immediately after a grant          3
 purpose (Notice of Energy R&D       is awarded and with each
 Project).                           application for renewal.
2. Renewal period ends............  6 months before the                8
                                     budget.
3. Progress Report period (or as    90 days prior to the next          3
 part of a renewal application).     budget period.
4. Other progress reports, brief    As deemed appropriate by           3
 topical reports, etc. (Designated   DOE or the recipient.
 when significant results develop
 or when work has direct
 programmatic impact).
5. Reprints, Conference...........  Same as 4. above.........          3
6. Final report of the project....  Within 90 days after               3
                                     completion.
7. Financial Status Report (FSR)..  Within 90 days after              3
                                     completion of the
                                     project period; for
                                     budget periods exceeding
                                     12 months an FSR is also
                                     required within 90 days
                                     after the first 12-month
                                     period.
------------------------------------------------------------------------
Note: Report types 5 and 6 require with submission two copies of DOE
  Form 1332.16, University-Type Contractor and Grantee Recommendations
  for Disposition of Scientific and Technical Document.



PART 603_TECHNOLOGY INVESTMENT AGREEMENTS--Table of Contents



                            Subpart A_General

Sec.
603.100 Purpose.
603.105 Description.
603.110 Use of TIAs.
603.115 Approval requirements.
603.120 Contracting officer warrant requirements.
603.125 Applicability of other parts of the DOE Assistance Regulations.

      Subpart B_Appropriate Use of Technology Investment Agreements

603.200 Contracting officer responsibilities.
603.205 Nature of the project.
603.210 Recipients.
603.215 Recipient's commitment and cost sharing.
603.220 Government participation.
603.225 Benefits of using a TIA.

[[Page 209]]

603.230 Fee or profit.

     Subpart C_Requirements for Expenditure-Based and Fixed-Support 
                    Technology Investment Agreements

603.300 Difference between an expenditure-based and a fixed-support TIA.
603.305 Use of a fixed-support TIA.
603.310 Use of an expenditure-based TIA.
603.315 Advantages of a fixed-support TIA.

                       Subpart D_Competition Phase

603.400 Competitive procedures.
603.405 Announcement format.
603.410 Announcement content.
603.415 Cost sharing.
603.420 Disclosure of information.

                 Subpart E_Pre-Award Business Evaluation

603.500 Pre-award business evaluation.
603.505 Program resources.

                         Recipient Qualification

603.510 Recipient qualifications.
603.515 Qualification of a consortium.

                              Total Funding

603.520 Reasonableness of total project funding.

                              Cost Sharing

603.525 Value and reasonableness of the recipient's cost sharing 
          contribution.
603.530 Acceptable cost sharing.
603.535 Value of proposed real property or equipment.
603.540 Acceptability of fully depreciated real property or equipment.
603.545 Acceptability of costs of prior RD&D.
603.550 Acceptability of intellectual property.
603.555 Value of other contributions.

               Fixed-Support or Expenditure-Based Approach

603.560 Estimate of project expenditures.
603.565 Use of a hybrid instrument.

               Accounting, Payments, and Recovery of Funds

603.570 Determining milestone payment amounts.
603.575 Repayment of Federal cost share.

 Subpart F_Award Terms Affecting Participants' Financial, Property, and 
                           Purchasing Systems

603.600 Administrative matters.
603.605 General policy.
603.610 Flow down requirements.

                            Financial Matters

603.615 Financial management standards for for-profit firms.
603.620 Financial management standards for nonprofit participants.
603.625 Cost principles or standards applicable to for-profit 
          participants.
603.630 Use of Federally-approved indirect cost rates for for-profit 
          firms.
603.635 Cost principles for nonprofit participants.
603.640 Audits of for-profit participants.
603.645 Periodic audits and award-specific audits of for-profit 
          participants.
603.650 Designation of auditor for for-profit participants.
603.655 Frequency of periodic audits of for-profit participants.
603.660 Other audit requirements.
603.665 Periodic audits of nonprofit participants.
603.670 Flow down audit requirements to subrecipients.
603.675 Reporting use of IPA for subawards.

                                Property

603.680 Purchase of real property and equipment by for-profit firms.
603.685 Management of real property and equipment by nonprofit 
          participants.
603.690 Requirements for Federally-owned property.
603.695 Requirements for supplies.

                               Purchasing

603.700 Standards for purchasing systems of for-profit firms.
603.705 Standards for purchasing systems of nonprofit organizations.

      Subpart G_Award Terms Related to Other Administrative Matters

603.800 Scope.

                                Payments

603.805 Payment methods.
603.810 Method and frequency of payment requests.
603.815 Withholding payments.
603.820 Interest on advance payments.

                  Revision of Budget and Program Plans

603.825 Government approval of changes in plans.
603.830 Pre-award costs.

                             Program Income

603.835 Program income requirements.

                          Intellectual Property

603.840 Negotiating data and patent rights.
603.845 Data rights requirements.
603.850 Marking of data.
603.855 Protected data.

[[Page 210]]

603.860 Rights to inventions.
603.865 March-in rights.
603.870 Marking of documents related to inventions.
603.875 Foreign access to technology and U.S. competitiveness 
          provisions.

                  Financial and Programmatic Reporting

603.880 Reports requirements.
603.885 Updated program plans and budgets.
603.890 Final performance report.
603.895 Protection of information in programmatic reports.
603.900 Receipt of final performance report.

                Records Retention and Access Requirements

603.905 Record retention requirements.
603.910 Access to a for-profit participant's records.
603.915 Access to a nonprofit participant's records.

                       Termination and Enforcement

603.920 Termination and enforcement requirements.

                      Subpart H_Executing the Award

603.1000 Contracting officer's responsibilities at time of award.

                           The Award Document

603.1005 General responsibilities.
603.1010 Substantive issues.
603.1015 Execution.

                  Reporting Information About the Award

603.1020 File documents.

                   Subpart I_Post-Award Administration

603.1100 Contracting officer's post-award responsibilities.
603.1105 Advance payments or payable milestones.
603.1110 Other payment responsibilities.
603.1115 Single audits.
603.1120 Award-specific audits.

            Subpart J_Definitions of Terms Used in This Part

603.1200 Definitions.
603.1205 Advance.
603.1210 Articles of collaboration.
603.1215 Assistance.
603.1220 Award-specific audit.
603.1225 Cash contributions.
603.1230 Commercial firm.
603.1235 Consortium.
603.1240 Cooperative agreement.
603.1245 Cost sharing.
603.1250 Data.
603.1255 Equipment.
603.1260 Expenditure-based award.
603.1265 Expenditures or outlays.
603.1270 Grant.
603.1275 In-kind contributions.
603.1280 Institution of higher education.
603.1285 Intellectual property.
603.1290 Participant.
603.1295 Periodic audit.
603.1300 Procurement contract.
603.1305 Program income.
603.1310 Program official.
603.1315 Property.
603.1320 Real property.
603.1325 Recipient.
603.1330 Supplies.
603.1335 Termination.
603.1340 Technology investment agreement.

Appendix A to Part 603--Applicable Federal Statutes, Executive Orders, 
          and Government-wide Regulations
Appendix B to Part 603--Flow Down Requirements for Purchases of Goods 
          and Services

    Authority: 42 U.S.C. 7101 et seq.; 31 U.S.C. 6301-6308; 50 U.S.C. 
2401 et seq., unless otherwise noted.

    Source: 71 FR 27161, May 9, 2006, unless otherwise noted.



                            Subpart A_General



Sec. 603.100  Purpose.

    This part establishes uniform policies and procedures for the 
implementation of DOE's ``other transactions'' authority and for award 
and administration of a technology investment agreement (TIA).



Sec. 603.105  Description.

    (a) A TIA is a special type of assistance instrument used to 
increase involvement of commercial firms in the Department of Energy's 
(DOE) research, development and demonstration (RD&D) programs. A TIA, 
like a cooperative agreement, requires substantial Federal involvement 
in the technical or management aspects of the project. A TIA may be 
either a type of cooperative agreement or a type of assistance 
transaction other than a cooperative agreement, depending on the 
intellectual property provisions. A TIA is either:
    (1) A type of cooperative agreement with more flexible provisions 
tailored for commercial firms (as distinct from a cooperative agreement 
subject to all of the requirements in 10 CFR 600), but with intellectual 
property provisions in

[[Page 211]]

full compliance with the DOE intellectual property statutes (i.e., Bayh-
Dole statute and 42 U.S.C. 2182 and 5908, as implemented in 10 CFR 
600.325). The authority to award this type of TIA is 42 U.S.C. 7256(a), 
as well as any program-specific statute that provides authority to award 
cooperative agreements; or
    (2) An assistance transaction other than a cooperative agreement, if 
its intellectual property provisions vary from the Bayh-Dole statute and 
42 U.S.C. 2182 and 5908, which require the Government to retain certain 
intellectual property rights and require differing treatment between 
large businesses and nonprofit organizations or small businesses. The 
authority to award this type of TIA is 42 U.S.C. 7256(g), as well as any 
program-specific statute that provides authority to award assistance 
agreements.
    (b) The two types of TIAs have similar requirements, except for the 
intellectual property requirements. If the contracting officer 
determines there is a unique, exceptional need to vary from the standard 
intellectual property requirements in 10 CFR 600.325, the TIA becomes an 
assistance transaction other than a cooperative agreement.



Sec. 603.110  Use of TIAs.

    The ultimate goal for using a TIA is to broaden the technology base 
available to meet DOE mission requirements and foster within the 
technology base new relationships and practices to advance the national 
economic and energy security of the United States, to promote scientific 
and technological innovation in support of that mission, and to ensure 
the environmental cleanup of the national nuclear weapons complex. A TIA 
therefore is designed to:
    (a) Reduce barriers to participation in RD&D programs by commercial 
firms that deal primarily in the commercial marketplace. A TIA allows 
contracting officers to tailor Government requirements and lower or 
remove barriers if it can be done with proper stewardship of Federal 
funds.
    (b) Promote new relationships among performers in the technology 
base. Collaborations among commercial firms that deal primarily in the 
commercial marketplace, firms that regularly perform on the DOE RD&D 
programs and nonprofit organizations can enhance overall quality and 
productivity.
    (c) Stimulate performers to develop and use new business practices 
and disseminate best practices throughout the technology base.



Sec. 603.115  Approval requirements.

    An officer of the Department who has been appointed by the President 
by and with the advice and consent of the Senate and who has been 
delegated the authority from the Secretary must approve the award of a 
TIA and may perform other functions of the Secretary as set forth in 42 
U.S.C. 7256(g). This authority may not be re-delegated. The DOE or 
National Nuclear Security Administration (NNSA) Senior Procurement 
Executive also must concur in the award of a TIA.



Sec. 603.120  Contracting officer warrant requirements.

    A contracting officer may award or administer a TIA only if the 
contracting officer's warrant authorizes the award or administration of 
a TIA.



Sec. 603.125  Applicability of other parts of the DOE Assistance Regulations.

    (a) TIAs are explicitly covered in this part and 10 CFR part 600, 
subpart A--General. 10 CFR part 600, subpart A, addresses general 
matters that relate to assistance instruments.
    (b) Three additional parts of the DOE Assistance Regulations apply 
to TIAs, although they do not mention a TIA explicitly. They are:
    (1) 10 CFR part 601--lobbying restrictions apply by law (31 U.S.C. 
1352) to a TIA that is a cooperative agreement and as a matter of DOE 
policy to a TIA that is an assistance transaction other than a 
cooperative agreement.
    (2) 10 CFR part 606--debarment and suspension requirements apply 
because they cover nonprocurement instruments in general; and
    (3) 10 CFR part 607--drug-free work-place (financial assistance) 
requirements apply because they cover all assistance instruments.
    (c) Other portions of 10 CFR part 600 apply to a TIA as referenced 
in part 603.

[[Page 212]]



      Subpart B_Appropriate Use of Technology Investment Agreements



Sec. 603.200  Contracting officer responsibilities.

    Contracting officers may use a TIA only in appropriate situations. 
To do so, the use of a TIA must be justified based on:
    (a) The nature of the project, as discussed in Sec. 603.205;
    (b) The type of recipient, addressed in Sec. 603.210;
    (c) The recipient's commitment and cost sharing, as described in 
Sec. 603.215;
    (d) The degree of involvement of the Government program official, as 
discussed in Sec. 603.220; and
    (e) The contracting officer's judgment that the use of a TIA could 
benefit the RD&D objectives in ways that likely would not happen if 
another type of instrument were used (i.e., a contract, grant or 
cooperative agreement is not feasible or appropriate). Answers to the 
four questions in Sec. 603.225 form the basis for the contracting 
officer's judgment.



Sec. 603.205  Nature of the project.

    Judgments relating to the nature of the project include:
    (a) The principal purpose of the project is to carry out a public 
purpose of support or stimulation of RD&D (i.e., assistance), rather 
than acquiring goods or services for the benefit of the Government 
(i.e., acquisition);
    (b) To the maximum extent practicable, the TIA does not support RD&D 
that duplicates other RD&D being conducted under existing programs 
carried out by the DOE; and
    (c) The use of a standard contract, grant or cooperative agreement 
for the project is not feasible or appropriate (see questions in Sec. 
603.225).



Sec. 603.210  Recipients.

    (a) A TIA requires one or more for-profit firms, not acting in their 
capacity as the contractor of a FFRDC, to be involved either in the:
    (1) Performance of the RD&D project; or
    (2) The commercial application of the results.
    (i) In those cases where there is only a non-profit performer or a 
consortium of non-profit performers or non-profit performers and FFRDC 
contractors, if and as authorized, the performers must have at least a 
tentative agreement with a specific for-profit partner or partners who 
plan on being involved in the commercial application of the results.
    (ii) In consultation with legal counsel, the contracting officer 
should review the agreement between the performers and their for-profit 
partner to ensure that the for-profit partner is committed to being 
involved in the commercial application of the results.
    (b) A TIA may be particularly useful for awards to consortia (a 
consortium may include one or more for-profit firms, as well as State or 
local government agencies, institutions of higher education, other 
nonprofit organizations, or FFRDC contractors, if and as authorized) 
because:
    (1) If multiple performers are participating as a consortium, they 
may be more equal partners in the performance of the project than 
usually is the case with a prime recipient and subrecipients. All of the 
performers are more likely to be directly involved in developing and 
revising plans for the RD&D effort, reviewing technical progress, and 
overseeing financial and other business matters. That feature makes 
consortia well suited to building new relationships among performers in 
the technology base, a principal objective for the use of a TIA.
    (2) In addition, interactions among the participants within a 
consortium potentially provide a self-governance mechanism. The 
potential for additional self-governance is particularly good when a 
consortium includes multiple for-profit participants that normally are 
competitors within an industry.
    (c) A TIA may be used for carrying out RD&D performed by single 
firms or multiple performers (e.g., a teaming arrangement) in prime 
award-subaward relationships. In awarding a TIA in those cases, however, 
consideration should be given to providing for greater involvement of 
the program official or a way to increase self-governance (e.g., a prime 
award with multiple subawards

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arranged so as to give the subrecipients more insight into and authority 
and responsibility for the programmatic and business aspects of the 
overall project than they usually have).



Sec. 603.215  Recipient's commitment and cost sharing.

    (a) The contracting officer should evaluate whether the recipient 
has a strong commitment to and self-interest in the success of the 
project and incorporating the technology into products and processes for 
the commercial marketplace. Evidence of that commitment and interest 
should be found in the proposal, in the recipient's management plan, or 
through other means.
    (b) The contracting officer must seek cost sharing. The purpose of 
cost sharing is to ensure that the recipient incurs real risk that gives 
it a vested interest in the project's success; the willingness to commit 
to meaningful cost sharing is a good indicator of a recipient's self-
interest. The requirements are that:
    (1) To the maximum extent practicable, the non-Federal parties 
carrying out a RD&D project under a TIA are to provide at least half of 
the costs of the project; and
    (2) The parties must provide the cost sharing from non-Federal 
resources unless otherwise provided by law.
    (c) The contracting officer may consider whether cost sharing is 
impracticable in a given case, unless there is a statutory requirement 
for cost sharing that applies to the particular program under which the 
award is to be made. Before deciding that cost sharing is impracticable, 
the contracting officer should carefully consider if there are other 
factors that demonstrate the recipient's self-interest in the success of 
the current project.



Sec. 603.220  Government participation.

    A TIA is used to carry out cooperative relationships between the 
Federal Government and the recipient(s) which require substantial 
involvement of the Government in the execution of the RD&D. For example, 
program officials will participate in recipients' periodic reviews of 
progress and may be substantially involved with the recipients in the 
resulting revisions of plans for future effort.



Sec. 603.225  Benefits of using a TIA.

    Before deciding that a TIA is appropriate, the contracting officer 
also must judge that using a TIA could benefit the RD&D objectives in 
ways that likely would not happen if another type of assistance 
instrument were used (e.g., a cooperative agreement subject to all of 
the requirements of 10 CFR part 600). The contracting officer, in 
conjunction with Government program officials, must consider the 
questions in paragraphs (a) through (d) of this section, to help 
identify the benefits that may justify using a TIA and reducing some of 
the usual requirements. The contracting officer must report the answers 
to these questions to help the DOE measure the benefits of using a TIA. 
Note full concise answers are required only to questions that relate to 
the benefits perceived for using the TIA, rather than another type of 
funding instrument, for the particular project. A simple ``no'' or ``not 
applicable'' is a sufficient response for other questions. The questions 
are:
    (a) Will the use of a TIA permit the involvement of any commercial 
firms or business units of firms that would not otherwise participate in 
the project? If so:
    (1) What are the expected benefits of those firms' or divisions' 
participation (e.g., is there a specific technology that could be 
better, more readily available, or less expensive)?
    (2) Why would they not participate if an instrument other than a TIA 
were used? The contracting officer should identify specific provisions 
of the TIA or features of the TIA award process that enable their 
participation. For example, if the RD&D effort is based substantially on 
a for-profit firm's privately developed technology and the Government 
may be a major user of any commercial product developed as a result of 
the award, a for-profit firm may not participate unless the Government's 
intellectual property rights in the technology are modified.
    (b) Will the use of a TIA allow the creation of new relationships 
among participants in a consortium, at the prime or subtier levels, 
among business

[[Page 214]]

units of the same firm, or between non-Federal participants and the 
Federal Government that will foster better technology? If so:
    (1) Why do these new relationships have the potential for fostering 
technology that is better, more affordable, or more readily available?
    (2) Are there provisions of the TIA or features of the TIA award 
process that enable these relationships to form? If so, the contracting 
officer should be able to identify specifically what they are. If not, 
the contracting officer should be able to explain specifically why the 
relationships could not be created if another type of assistance 
instrument were used. For example, a large business firm may not be 
willing to participate in a consortium or teaming arrangement with small 
business firms and nonprofit firms under a standard cooperative 
agreement because those entities have invention rights under the Bayh-
Dole statute that are not available to large businesses. A large 
business firm may be willing to participate in a consortium or teaming 
arrangement only if all partners are substantially equal with regard to 
the allocation of intellectual property rights.
    (c) Will the use of a TIA allow firms or business units of firms 
that traditionally accept Government awards to use new business 
practices in the execution of the RD&D project that will foster better 
technology, new technology more quickly or less expensively, or 
facilitate partnering with commercial firms? If so:
    (1) What specific benefits result from the use of these new 
practices? The contracting officer should be able to explain 
specifically the potential for those benefits.
    (2) Are there provisions of the TIA or features of the TIA award 
process that enable the use of the new practices? If so, the contracting 
officer should be able to identify those provisions or features and 
explain why the practices could not be used if the award were made using 
another type of assistance instrument.
    (d) Are there any other benefits of the use of a TIA that could help 
DOE meet its objectives in carrying out the project? If so, the 
contracting officer should be able to identify specifically what they 
are, how they can help meet the objectives, what features of the TIA or 
award process enable DOE to realize them, and why the benefits likely 
would not be realized if an assistance instrument other than a TIA were 
used.



Sec. 603.230  Fee or profit.

    The contracting officer may not use a TIA if any participant is to 
receive fee or profit. Note that this policy extends to all performers 
of the project, including any subawards for substantive program 
performance, but it does not preclude participants' or subrecipients' 
payment of reasonable fee or profit when making purchases from suppliers 
of goods (e.g., supplies and equipment) or services needed to carry out 
the RD&D.



     Subpart C_Requirements for Expenditure-Based and Fixed-Support 
                    Technology Investment Agreements



Sec. 603.300  Difference between an expenditure-based and a fixed-support TIA.

    The contracting officer may negotiate expenditure-based or fixed-
support award terms for either types of TIA subject to the requirements 
in this subpart. The fundamental difference between an expenditure-based 
and a fixed-support TIA is:
    (a) For an expenditure-based TIA, the amounts of interim payments or 
the total amount ultimately paid to the recipient are based on the 
amounts the recipient expends on project costs. If a recipient completes 
the project specified at the time of award before it expends all of the 
agreed-upon Federal funding and recipient cost sharing, the Federal 
Government may recover its share of the unexpended balance of funds or, 
by mutual agreement with the recipient, amend the agreement to expand 
the scope of the RD&D project. An expenditure-based TIA, therefore, is 
analogous to a cost-type procurement contract or grant.
    (b) For a fixed-support TIA, the amount of assistance is established 
at the time of award and is not meant to be adjusted later. In that 
sense, a fixed-

[[Page 215]]

support TIA is somewhat analogous to a fixed-price procurement contract.



Sec. 603.305  Use of a fixed-support TIA.

    The contracting officer may use a fixed-support TIA if:
    (a) The agreement is to support or stimulate RD&D with outcomes that 
are well defined, observable, and verifiable;
    (b) The resources required to achieve the outcomes can be estimated 
well enough to ensure the desired level of cost sharing (see example in 
Sec. 603.560(b)); and
    (c) The agreement does not require a specific amount or percentage 
of recipient cost sharing. In cases where the agreement does require a 
specific amount or percentage of cost sharing, a fixed-support TIA is 
not practicable because the agreement has to specify cost principles or 
standards for costs that may be charged to the project; require the 
recipient to track the costs of the project; and provide access for 
audit to allow verification of the recipient's compliance with the 
mandatory cost sharing. A fixed-support TIA may not be used if there is:
    (1) A requirement (e.g., in statute or policy determination) for a 
specific amount or percentage of recipient cost sharing; or
    (2) The contracting officer, in consultation with the program 
official, otherwise elects to include in the TIA a requirement for a 
specific amount or percentage of cost sharing.



Sec. 603.310  Use of an expenditure-based TIA.

    In general, the contracting officer must use an expenditure-based 
TIA under conditions other than those described in Sec. 603.305. 
Reasons for any exceptions to this general rule must be documented in 
the award file and must be consistent with the policy in Sec. 603.230 
that precludes payment of fee or profit to participants.



Sec. 603.315  Advantages of a fixed-support TIA.

    In situations where the use of a fixed-support TIA is permissible 
(see Sec. Sec. 603.305 and 603.310), its use may encourage some 
commercial firms' participation in the RD&D. With a fixed-support TIA, 
the contracting officer can eliminate or reduce some post-award 
requirements that sometimes are cited as disincentives for those firms 
to participate. For example, a fixed-support TIA need not:
    (a) Specify minimum standards for the recipient's financial 
management system;
    (b) Specify cost principles or standards stating the types of costs 
the recipient may charge to the project;
    (c) Provide for financial audits by Federal auditors or independent 
public accountants of the recipient's books and records;
    (d) Set minimum standards for the recipient's purchasing system; or
    (e) Require the recipient to prepare financial reports for 
submission to the Federal Government.



                       Subpart D_Competition Phase



Sec. 603.400  Competitive procedures.

    DOE policy is to award a TIA using competitive procedures and a 
merit-based selection process, as described in 10 CFR 600.6 and 600.13, 
respectively:
    (a) In every case where required by statute; and
    (b) To the maximum extent feasible, in all other cases. If it is not 
feasible to use competitive procedures, the contracting officer must 
comply with the requirements in 10 CFR 600.6(c).



Sec. 603.405  Announcement format.

    If the contracting officer, in consultation with the program 
official, decides that a TIA is among the types of instruments that may 
be awarded, the additional elements described in Sec. Sec. 603.410 
through 603.420 should be included in the announcement.



Sec. 603.410  Announcement content.

    Once the contracting officer, in consultation with the program 
official, considers the factors described in Subpart B of this part and 
decides that a TIA is among the types of instruments that may be awarded 
pursuant to a program announcement, it is important to state that fact 
in the announcement. The announcement also should state that a TIA is 
more flexible than a traditional financial assistance agreement and that 
requirements are negotiable

[[Page 216]]

in areas such as audits and intellectual property rights that may cause 
concern for commercial firms. Doing so should increase the likelihood 
that commercial firms will be willing to submit proposals.



Sec. 603.415  Cost sharing.

    To help ensure a competitive process that is fair and equitable to 
all potential proposers, the announcement should state clearly:
    (a) That, to the maximum extent practicable, the non-Federal parties 
carrying out a RD&D project under a TIA are to provide at least half of 
the costs of the project (see Sec. 603.215(b));
    (b) The types of cost sharing that are acceptable;
    (c) How any in-kind contributions will be valued, in accordance with 
Sec. Sec. 603.530 through 603.555; and
    (d) Whether any consideration will be given to alternative 
approaches a proposer may offer to demonstrate its strong commitment to 
and self-interest in the project's success, in accordance with Sec. 
603.215.



Sec. 603.420  Disclosure of information.

    The announcement should tell potential proposers that:
    (a) For all TIAs, information described in paragraph (b) of this 
section is exempt from disclosure requirements of the Freedom of 
Information Act (FOIA)(codified at 5 U.S.C. 552) for a period of five 
years after the date on which the DOE receives the information from 
them; and
    (b) As provided in 42 U.S.C. 7256(g) incorporating certain 
provisions of 10 U.S.C. 2371, disclosure is not required, and may not be 
compelled, under FOIA during that period if:
    (1) A proposer submits the information in a competitive or 
noncompetitive process that could result in the award of a TIA; and
    (2) The type of information is among the following types that are 
exempt:
    (i) Proposals, proposal abstracts, and supporting documents; and
    (ii) Business plans and technical information submitted on a 
confidential basis.
    (c) If proposers desire to protect business plans and technical 
information for five years from FOIA disclosure requirements, they must 
mark them with a legend identifying them as documents submitted on a 
confidential basis. After the five-year period, information may be 
protected for longer periods if it meets any of the criteria in 5 U.S.C. 
552(b) (as implemented by the DOE in 10 CFR part 1004) for exemption 
from FOIA disclosure requirements.



                 Subpart E_Pre-Award Business Evaluation



Sec. 603.500  Pre-award business evaluation.

    (a) The contracting officer must determine the qualification of the 
recipient, as described in Sec. Sec. 603.510 and 603.515.
    (b) As the business expert working with the program official, the 
contracting officer also must address the financial aspects of the 
proposed agreement. The contracting officer must:
    (1) Determine that the total amount of funding for the proposed 
effort is reasonable, as addressed in Sec. 603.520.
    (2) Assess the value and determine the reasonableness of the 
recipient's proposed cost sharing contribution, as discussed in 
Sec. Sec. 603.525 through 603.555.
    (3) If contemplating the use of a fixed-support rather than 
expenditure-based TIA, ensure that its use is justified, as explained in 
Sec. Sec. 603.560 and 603.565.
    (4) Determine amounts for milestone payments, if used, as discussed 
in Sec. 603.570.



Sec. 603.505  Program resources.

    Program officials can be a source of information for determining the 
reasonableness of proposed funding (e.g., on labor rates, as discussed 
in Sec. 603.520) or establishing observable and verifiable technical 
milestones for payments (see Sec. 603.570).

                         Recipient Qualification



Sec. 603.510  Recipient qualifications.

    Prior to award of a TIA, the contracting officer's responsibilities 
for determining that the recipient is qualified are the same as those 
for awarding a grant or cooperative agreement. If the recipient is a 
consortium that is

[[Page 217]]

not formally incorporated, the contracting officer has the additional 
responsibility described in Sec. 603.515.



Sec. 603.515  Qualification of a consortium.

    (a) A consortium that is not formally incorporated must provide a 
collaboration agreement, commonly referred to as the articles of 
collaboration, which sets out the rights and responsibilities of each 
consortium member. This agreement binds the individual consortium 
members together and should discuss, among other things, the 
consortium's
    (1) Management structure;
    (2) Method of making payments to consortium members;
    (3) Means of ensuring and overseeing members' efforts on the 
project;
    (4) Provisions for members' cost sharing contributions; and
    (5) Provisions for ownership and rights in intellectual property 
developed previously or under the agreement.
    (b) If the prospective recipient of a TIA is a consortium that is 
not formally incorporated, the contracting officer must, in consultation 
with legal counsel, review the management plan in the consortium's 
collaboration agreement to ensure that the management plan is sound and 
that it adequately addresses the elements necessary for an effective 
working relationship among the consortium members. An effective working 
relationship is essential to increase the project's chances of success.

                              Total Funding



Sec. 603.520  Reasonableness of total project funding.

    In cooperation with the program official, the contracting officer 
must assess the reasonableness of the total estimated budget to perform 
the RD&D that will be supported by the agreement.
    (a) Labor. Much of the budget likely will involve direct labor and 
associated indirect costs, which may be represented together as a 
``loaded'' labor rate. The program official is an essential advisor on 
reasonableness of the overall level of effort and its composition by 
labor category. The contracting officer also may rely on experience with 
other awards as the basis for determining reasonableness.
    (b) Real property and equipment. In almost all cases, the project 
costs should normally include only depreciation or use charges for real 
property and equipment of for-profit participants, in accordance with 
Sec. 603.680. Remember that the budget for an expenditure-based TIA may 
not include depreciation of a participant's property as a direct cost of 
the project if that participant's practice is to charge the depreciation 
of that type of property as an indirect cost, as many organizations do.

                              Cost Sharing



Sec. 603.525  Value and reasonableness of the recipient's cost sharing contribution.

    The contracting officer must:
    (a) Determine that the recipient's cost sharing contributions meet 
the criteria for cost sharing and determine values for them, in 
accordance with Sec. Sec. 603.530 through 603.555. In doing so, the 
contracting officer must:
    (1) Ensure that there are affirmative statements from any third 
parties identified as sources of cash contributions, and
    (2) Include in the award file an evaluation that documents how the 
values of the recipient's contributions to the funding of the project 
were determined.
    (b) Judge that the recipient's cost sharing contribution, as a 
percentage of the total budget, is reasonable. To the maximum extent 
practicable, the recipient must provide at least half of the costs of 
the project, in accordance with Sec. 603.215.



Sec. 603.530  Acceptable cost sharing.

    The contracting officer may accept any cash or in-kind contributions 
that meet all of the following criteria.
    (a) In the contracting officer's judgment, they represent meaningful 
cost sharing that demonstrates the recipient's commitment to the success 
of the RD&D project. Cash contributions clearly demonstrate commitment 
and they are strongly preferred over in-kind contributions.

[[Page 218]]

    (b) They are necessary and reasonable for accomplishment of the RD&D 
project's objectives.
    (c) They are costs that may be charged to the project under Sec. 
603.625 and Sec. 603.635, as applicable to the participant making the 
contribution.
    (d) They are verifiable from the recipient's records.
    (e) They are not included as cost sharing contributions for any 
other Federal award.
    (f) They are not paid by the Federal Government under another award, 
except:
    (1) Costs that are authorized by Federal statute to be used for cost 
sharing.
    (2) Independent research and development (IR&D) costs, as described 
in 48 CFR part 31.208-18, that meet all of the criteria in paragraphs 
(a) through (e) of this section. IR&D is acceptable as cost sharing, 
even though it may be reimbursed by the Government through other awards. 
It is standard business practice for all for-profit firms, including 
commercial firms, to recover their IR&D costs through prices charged to 
their customers. Thus, the cost principles at 48 CFR part 31 allow a 
for-profit firm that has expenditure-based, Federal procurement 
contracts to recover through those procurement contracts the allocable 
portion of its research and development costs associated with a 
technology investment agreement. Contracting officers should note that 
in accordance with section 603.545, they may not count participant's 
costs of prior research, including IR&D, as a cost sharing contribution.



Sec. 603.535  Value of proposed real property or equipment.

    The contracting officer rarely should accept values for cost sharing 
contributions of real property or equipment that are in excess of 
depreciation or reasonable use charges, as discussed in Sec. 603.680 
for for-profit participants. The contracting officer may accept the full 
value of a donated capital asset if the real property or equipment is to 
be dedicated to the project and the contracting officer expects that it 
will have a fair market value that is less than $5,000 at the project's 
end. In those cases, the contracting officer should value the donation 
at the lesser of:
    (a) The value of the property as shown in the recipient's accounting 
records (i.e., purchase price less accumulated depreciation); and
    (b) The current fair market value. The contracting officer may 
accept the use of any reasonable basis for determining the fair market 
value of the property. If there is a justification to do so, the 
contracting officer may accept the current fair market value even if it 
exceeds the value in the recipient's records.



Sec. 603.540  Acceptability of fully depreciated real property or equipment.

    The contracting officer should limit the value of any contribution 
of a fully depreciated asset to a reasonable use charge. In determining 
what is reasonable, the contracting officer must consider:
    (a) The original cost of the asset;
    (b) Its estimated remaining useful life at the time of the 
negotiations;
    (c) The effect of any increased maintenance charges or decreased 
performance due to age; and
    (d) The amount of depreciation that the participant previously 
charged to Federal awards.



Sec. 603.545  Acceptability of costs of prior RD&D.

    The contracting officer may not count any participant's costs of 
prior RD&D as a cost sharing contribution. Only the additional resources 
that the recipient will provide to carry out the current project (which 
may include pre-award costs for the current project, as described in 
Sec. 603.830) are to be counted.



Sec. 603.550  Acceptability of intellectual property.

    (a) In most instances, the contracting officer should not count 
costs of patents and other intellectual property (e.g., copyrighted 
material, including software) as cost sharing because:
    (1) It is difficult to assign values to these intangible 
contributions;
    (2) Their value usually is a manifestation of prior research costs, 
which are not allowed as cost share under Sec. 603.545; and

[[Page 219]]

    (3) Contributions of intellectual property rights generally do not 
represent the same cost of lost opportunity to a recipient as 
contributions of cash or tangible assets. The purpose of cost share is 
to ensure that the recipient incurs real risk that gives it a vested 
interest in the project's success.
    (b) The contracting officer may include costs associated with 
intellectual property if the costs are based on sound estimates of 
market value of the contribution. For example, a for-profit firm may 
offer the use of commercially available software for which there is an 
established license fee for use of the product. The costs of the 
development of the software would not be a reasonable basis for valuing 
its use.



Sec. 603.555  Value of other contributions.

    For types of participant contributions other than those addressed in 
Sec. Sec. 603.535 through 603.550, the general rule is that the 
contracting officer is to value each contribution consistently with the 
cost principles or standards in Sec. 603.625 and Sec. 603.635 that 
apply to the participant making the contribution. When valuing services 
and property donated by parties other than the participants, the 
contracting officer may use as guidance the provisions of 10 CFR 
600.313(b)(2) through (b)(5).

               Fixed-Support or Expenditure-Based Approach



Sec. 603.560  Estimate of project expenditures.

    (a) To use a fixed-support TIA, rather than an expenditure-based 
TIA, the contracting officer must have confidence in the estimate of the 
expenditures required to achieve well-defined outcomes. Therefore, the 
contracting officer must work carefully with program officials to select 
outcomes that, when the recipient achieves them, are reliable indicators 
of the amount of effort the recipient expended. However, the estimate of 
the required expenditures need not be a precise dollar amount, as 
illustrated by the example in paragraph (b) of this section, if:
    (1) The recipient is contributing a substantial share of the costs 
of achieving the outcomes, which must meet the criteria in Sec. 
603.305(a); and
    (2) The contracting officer is confident that the costs of achieving 
the outcomes will be at least a minimum amount that can be specified and 
the recipient is willing to accept the possibility that its cost sharing 
percentage ultimately will be higher if the costs exceed that minimum 
amount.
    (b) To illustrate the approach, consider a project for which the 
contracting officer is confident that the recipient will have to expend 
at least $800,000 to achieve the specified outcomes. The contracting 
officer must determine, in conjunction with program officials, the 
minimum level of recipient cost sharing required to demonstrate the 
recipient's commitment to the success of the project. For purposes of 
this illustration, let that minimum recipient cost sharing be 60% of the 
total project costs. In that case, the Federal share should be no more 
than 40% and the contracting officer could set a fixed level of Federal 
support at $320,000 (40% of $800,000). With that fixed level of Federal 
support, the recipient would be responsible for the balance of the costs 
needed to complete the project.
    (c) Note, however, that the level of recipient cost sharing 
negotiated should be based solely on the level needed to demonstrate the 
recipient's commitment. The contracting officer may not use a shortage 
of Federal Government funding for the program as a reason to try to 
persuade a recipient to accept a fixed-support TIA, rather than an 
expenditure-based instrument, or to accept responsibility for a greater 
share of the total project costs than it otherwise is willing to offer. 
If there is insufficient funding to provide an appropriate Federal 
Government share for the entire project, the contracting officer should 
re-scope the effort covered by the agreement to match the available 
funding.



Sec. 603.565  Use of a hybrid instrument.

    For a RD&D project that is to be carried out by a number of 
participants, the contracting officer may award a TIA that provides for 
some participants to perform under fixed-support arrangements and others 
to perform under expenditure-based arrangements.

[[Page 220]]

This approach may be useful, for example, if a commercial firm that is a 
participant will not accept an agreement with all of the post-award 
requirements of an expenditure-based award. Before using a fixed-support 
arrangement for that firm's portion of the project, the agreement must 
meet the criteria in Sec. 603.305.

               Accounting, Payments, and Recovery of Funds



Sec. 603.570  Determining milestone payment amounts.

    (a) If the contracting officer selects the milestone payment method 
(see Sec. 603.805), the contracting officer must assess the 
reasonableness of the estimated amount for reaching each milestone. This 
assessment enables the contracting officer to set the amount of each 
milestone payment to approximate the Federal share of the anticipated 
resource needs for carrying out that phase of the RD&D effort.
    (b) The Federal share at each milestone need not be the same as the 
Federal share of the total project. For example, the contracting officer 
might deliberately set payment amounts with a larger Federal share for 
early milestones if a project involves a start-up company with limited 
resources.
    (c) For an expenditure-based TIA, if the contracting officer 
establishes minimum cost sharing percentages for each milestone, those 
percentages should be indicated in the agreement.
    (d) For a fixed-support TIA, the milestone payments should be 
associated with the well-defined, observable, and verifiable technical 
outcomes (e.g., demonstrations, tests, or data analysis) that are 
established for the project in accordance with Sec. Sec. 603.305(a) and 
603.560(a).



Sec. 603.575  Repayment of Federal cost share.

    In accordance with the Energy Policy Act of 2005 (Public Law 109-
58), section 988(e), the contracting officer may not require repayment 
of the Federal share of a cost-shared TIA as a condition of making an 
award, unless otherwise authorized by statute.



 Subpart F_Award Terms Affecting Participants' Financial, Property, and 
                           Purchasing Systems



Sec. 603.600  Administrative matters.

    This subpart addresses ``systemic'' administrative matters that 
place requirements on the operation of a participant's financial 
management, property management, or purchasing system. Each 
participant's systems are organization-wide and do not vary with each 
agreement. Therefore, a TIA should address systemic requirements in a 
uniform way for each type of participant organization.



Sec. 603.605  General policy.

    The general policy for an expenditure-based TIA is to avoid 
requirements that would force participants to use different financial 
management, property management, and purchasing systems than they 
currently use for:
    (a) Expenditure-based Federal procurement contracts and assistance 
awards in general, if they receive them; or
    (b) Commercial business, if they have no expenditure-based Federal 
procurement contracts and assistance awards.



Sec. 603.610  Flow down requirements.

    If it is an expenditure-based award, the TIA must require 
participants to provide the same financial management, property 
management, and purchasing systems requirements to a subrecipient that 
would apply if the subrecipient were a participant. For example, a for-
profit participant would require a university subrecipient to comply 
with requirements that apply to a university participant and would 
require a GOCO or FFRDC subrecipient to comply with standards that 
conform as much as practicable with the requirements in the GOCO/FFRDC 
procurement contract. Note that this policy applies to subawards for 
substantive performance of portions of the RD&D project supported by the 
TIA and not to participants' purchases of goods or services needed to 
carry out the RD&D.

[[Page 221]]

                            Financial Matters



Sec. 603.615  Financial management standards for-profit firms.

    (a) To avoid causing needless changes in participants' financial 
management systems, an expenditure-based TIA will make for-profit 
participants that currently perform under other expenditure-based 
Federal procurement contracts or assistance awards subject to the same 
standards for financial management systems that apply to those other 
awards. Therefore, if a for-profit participant has expenditure-based DOE 
assistance awards other than a TIA, the TIA must apply the standards in 
10 CFR 600.311. The contracting officer may grant an exception and allow 
a for-profit participant that has other expenditure-based Federal 
Government awards to use an alternative set of standards that meets the 
minimum criteria in paragraph (b) of this section, if there is a 
compelling programmatic or business reason to do so. For each case in 
which an exception is granted, the contracting officer must document the 
reason in the award file.
    (b) For an expenditure-based TIA, the contracting officer is to 
allow and encourage each for-profit participant that does not currently 
perform under expenditure-based Federal procurement contracts or 
assistance awards (other than a TIA) to use its existing financial 
management system as long as the system, as a minimum:
    (1) Complies with Generally Accepted Accounting Principles.
    (2) Effectively controls all project funds, including Federal funds 
and any required cost share. The system must have complete, accurate, 
and current records that document the sources of funds and the purposes 
for which they are disbursed. It also must have procedures for ensuring 
that project funds are used only for purposes permitted by the agreement 
(see Sec. 603.625).
    (3) Includes, if advance payments are authorized under Sec. 
603.805, procedures to minimize the time elapsing between the payment of 
funds by the Government and the firm's disbursement of the funds for 
program purposes.



Sec. 603.620  Financial management standards for nonprofit participants.

    So as not to force system changes for any State, local government, 
institution of higher education, or other nonprofit organization, 
expenditure-based TIA requirements for the financial management system 
of any nonprofit participant are to be the same as those that apply to 
the participant's other Federal assistance awards. Specifically, the 
requirements are those in:
    (a) 10 CFR 600.220 for State and local governments; and
    (b) 10 CFR 600.121(b) for other nonprofit organizations, with the 
exception of nonprofit Government-owned, contractor-operated (GOCO) 
facilities and Federally Funded Research and Development Centers 
(FFRDCs) that are excepted from the definition of ``recipient'' in 10 
CFR 600.101. If a GOCO or FFRDC is a participant, the contracting 
officer must specify appropriate standards that conform as much as 
practicable with requirements in their procurement contract.



Sec. 603.625  Cost principles or standards applicable to for-profit participants.

    (a) So as not to require any firm to needlessly change its cost 
accounting system, an expenditure-based TIA is to apply the Government 
cost principles in 48 CFR part 31 to for-profit participants that 
currently perform under expenditure-based Federal procurement contracts 
or assistance awards (other than a TIA) and therefore have existing 
systems for identifying allowable costs under those principles. If there 
are programmatic or business reasons to do otherwise, the contracting 
officer may grant an exception from this requirement and use alternative 
standards as long as the alternative satisfies the conditions described 
in paragraph (b) of this section; if an exception is granted the reasons 
must be documented in the award file.
    (b) For other for-profit participants, the contracting officer may 
establish alternative standards in the agreement as long as that 
alternative provides, as a minimum, that Federal funds and funds counted 
as recipients' cost sharing will be used only for costs that:
    (1) A reasonable and prudent person would incur in carrying out the 
RD&D

[[Page 222]]

project contemplated by the agreement. Generally, elements of cost that 
appropriately are charged are those identified with RD&D activities 
under the Generally Accepted Accounting Principles (see Statement of 
Financial Accounting Standards Number 2, ``Accounting for Research and 
Development Costs,'' October 1974). Moreover, costs must be allocated to 
DOE and other projects in accordance with the relative benefits the 
projects receive. Costs charged to DOE projects must be given consistent 
treatment with costs allocated to the participants' other RD&D 
activities (e.g., activities supported by the participants themselves or 
by non-Federal sponsors).
    (2) Are consistent with the purposes stated in the governing 
Congressional authorizations and appropriations. The contracting officer 
is responsible for ensuring that provisions in the award document 
address any requirements that result from authorizations and 
appropriations.



Sec. 603.630  Use Federally approved indirect cost rates for for-profit firms.

    In accordance with the general policy in Sec. 603.605, the 
contracting officer must require a for-profit participant that has 
federally approved indirect cost rates for its Federal procurement 
contracts to use those rates to accumulate and report costs under an 
expenditure-based TIA. This includes both provisional and final rates 
that are approved up until the time that the TIA is closed out.



Sec. 603.635  Cost principles for nonprofit participants.

    So as not to force financial system changes for any nonprofit 
participant, an expenditure-based TIA will provide that costs to be 
charged to the RD&D project by any nonprofit participant must be 
determined to be allowable in accordance with:
    (a) OMB Circular A-87, if the participant is a State or local 
governmental organization;
    (b) OMB Circular A-21, if the participant is an institution of 
higher education;
    (c) 45 CFR Part 74, Appendix E, if the participant is a hospital; or
    (d) OMB Circular A-122, if the participant is any other type of 
nonprofit organization (the cost principles in 48 CFR parts 31 and 231 
are to be used by any nonprofit organization that is identified in 
Circular A-122 as being subject to those cost principles).



Sec. 603.640  Audits of for-profit participants.

    If the TIA is an expenditure-based award, the contracting officer 
must include in it an audit provision that addresses, for each for-
profit participant:
    (a) Whether the for-profit participant must have periodic audits, in 
addition to any award-specific audits, as described in Sec. 603.645;
    (b) Whether the Defense Contract Audit Agency (DCAA) or an 
independent public accountant (IPA) will perform required audits, as 
discussed in Sec. 603.650;
    (c) How frequently any periodic audits are to be performed, 
addressed in Sec. 603.655; and
    (d) Other matters described in Sec. 603.660, such as audit 
coverage, allowability of audit costs, auditing standards, and remedies 
for noncompliance.



Sec. 603.645  Periodic audits and award-specific audits of for-profit participants.

    The contracting officer needs to consider requirements for both 
periodic audits and award-specific audits (as defined in Sec. 603.1295 
and Sec. 603.1220, respectively). The way that an expenditure-based TIA 
addresses the two types of audits will vary, depending upon the type of 
for-profit participant.
    (a) For for-profit participants that are audited by the DCAA or 
other Federal auditors, as described in Sec. Sec. 603.650(b) and 
603.655, specific requirements for periodic audits need not be added 
because the Federal audits should be sufficient to address whatever may 
be needed. The inclusion in the TIA of the standard access-to-records 
provision for those for-profit participants, as discussed in Sec. 
603.910(a), gives the necessary access in the event that the contracting 
officer later needs to request audits to address award-specific issues 
that arise.
    (b) For each other for-profit participant, the contracting officer:

[[Page 223]]

    (1) Should require that the participant have an independent auditor 
(i.e., the DCAA or an independent public accountant (IPA)) conduct 
periodic audits of its systems if it expends $500,000 or more per year 
in TIAs and other Federal assistance awards. A prime reason for 
including this requirement is that the Federal Government, for an 
expenditure-based award, necessarily relies on amounts reported by the 
participant's systems when it sets payment amounts or adjusts 
performance outcomes. The periodic audit provides some assurance that 
the reported amounts are reliable.
    (2) Must ensure that the award provides an independent auditor the 
access needed for award-specific audits, to be performed at the request 
of the contracting officer if issues arise that require audit support. 
However, consistent with the government-wide policies on single audits 
that apply to nonprofit participants (see Sec. 603.665), the 
contracting officer should rely on periodic audits to the maximum extent 
possible to resolve any award-specific issues.



Sec. 603.650  Designation of auditor for for-profit participants.

    The auditor identified in an expenditure-based TIA to perform 
periodic and award-specific audits of a for-profit participant depends 
on the circumstances, as follows:
    (a) The Federal cognizant agency or an IPA will be the auditor for a 
for-profit participant that does not meet the criteria in paragraph (b) 
of this section. Note that the allocable portion of the costs of the 
IPA's audit may be reimbursable under the TIA, as described in Sec. 
603.660(b). The IPA should be the one that the participant uses to 
perform other audits (e.g., of its financial statement), to minimize 
added burdens and costs.
    (b) Except as provided in paragraph (c) of this section, the Federal 
cognizant agency (e.g., DCAA) must be identified as the auditor for a 
GOCO or FFRDC and for any for-profit participant that is subject to 
Federal audits because it is currently performing under a Federal award 
that is subject to the:
    (1) Cost principles in 48 CFR part 31 of the Federal Acquisition 
Regulation (FAR); or
    (2) Cost Accounting Standards in 48 CFR Chapter 99.
    (c) If there are programmatic or business reasons that justify the 
use of an auditor other than the Federal cognizant agency for a for-
profit participant that meets the criteria in paragraph (b) of this 
section, the contracting officer may provide that an IPA will be the 
auditor for that participant in which case the reasons for this decision 
must be documented in the award file.



Sec. 603.655  Frequency of periodic audits of for-profit participants.

    If an expenditure-based TIA provides for periodic audits of a for-
profit participant by an IPA, the contracting officer must specify the 
frequency for those audits. The contracting officer should consider 
having an audit performed during the first year of the award, when the 
participant has its IPA do its next financial statement audit, unless 
the participant already had a systems audit due to other Federal awards 
within the past two years. The frequency thereafter may vary depending 
upon the dollars the participant is expending annually under the award, 
but it is not unreasonable to require an updated audit every two to 
three years to verify that the participant's systems continue to be 
reliable (the audit then would cover the two or three-year period 
between audits).



Sec. 603.660  Other audit requirements.

    If an expenditure-based TIA provides for audits of a for-profit 
participant by an IPA, the contracting officer also must specify:
    (a) What periodic audits are to cover. It is important to specify 
audit coverage that is only as broad as needed to provide reasonable 
assurance of the participant's compliance with award terms that have a 
direct and material effect on the RD&D project.
    (b) Who will pay for periodic and award-specific audits. The 
allocable portion of the costs of any audits by IPAs may be reimbursable 
under the TIA. The costs may be direct charges or allocated indirect 
costs, consistent

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with the participant's accounting system and practices.
    (c) The auditing standards that the IPA will use. The contracting 
officer must provide that the IPA will perform the audits in accordance 
with the Generally Accepted Government Auditing Standards.
    (d) The available remedies for noncompliance. The agreement must 
provide that the participant may not charge costs to the award for any 
audit that the contracting officer determines was not performed in 
accordance with the Generally Accepted Government Auditing Standards or 
other terms of the agreement. It also must provide that the Government 
has the right to require the participant to have the IPA take corrective 
action and, if corrective action is not taken, that the agreements 
officer has recourse to any of the remedies for noncompliance identified 
in 10 CFR 600.352(a).
    (e) Where the IPA is to send audit reports. The agreement must 
provide that the IPA is to submit audit reports to the contracting 
officer. It also must require that the IPA report instances of fraud 
directly to the Office of Inspector General (OIG), DOE.
    (f) The retention period for the IPA's working papers. The 
contracting officer must specify that the IPA is to retain working 
papers for a period of at least three years after the final payment, 
unless the working papers relate to an audit whose findings are not 
fully resolved within that period or to an unresolved claim or dispute 
(in which case, the IPA must keep the working papers until the matter is 
resolved and final action taken).
    (g) Who will have access to the IPA's working papers. The agreement 
must provide for Government access to working papers.



Sec. 603.665  Periodic audits of nonprofit participants.

    An expenditure-based TIA is an assistance instrument subject to the 
Single Audit Act (31 U.S.C. 7501-7507), so nonprofit participants are 
subject to the requirements under that Act and OMB Circular A-133. 
Specifically, the requirements are those in:
    (a) 10 CFR 600.226 for State and local governments; and
    (b) 10 CFR 600.126 for other nonprofit organizations.



Sec. 603.670  Flow down audit requirements to subrecipients.

    (a) In accordance with Sec. 603.610, an expenditure-based TIA must 
require participants to flow down the same audit requirements to a 
subrecipient that would apply if the subrecipient were a participant.
    (b) For example, a for-profit participant that is audited by the 
DCAA:
    (1) Would flow down to a university subrecipient the Single Audit 
Act requirements that apply to a university participant;
    (2) Could enter into a subaward allowing a for-profit participant, 
under the circumstances described in Sec. 603.650(a), to use an IPA to 
do its audits.
    (c) This policy applies to subawards for substantive performance of 
portions of the RD&D project supported by the TIA, and not to 
participants' purchases of goods or services needed to carry out the 
RD&D.



Sec. 603.675  Reporting use of IPA for subawards.

    An expenditure-based TIA should require participants to report to 
the contracting officer when they enter into any subaward allowing a 
for-profit subawardee to use an IPA, as described in Sec. 
603.670(b)(2).

                                Property



Sec. 603.680  Purchase of real property and equipment by for-profit firms.

    (a) With the two exceptions described in paragraph (b) of this 
section, the contracting officer must require a for-profit firm to 
purchase real property or equipment with its own funds that are separate 
from the RD&D project. The contracting officer should allow the firm to 
charge to an expenditure-based TIA only depreciation or use charges for 
real property or equipment (and the cost estimate for a fixed-support 
TIA only would include those costs). Note that the firm must charge 
depreciation consistently with its usual accounting practice. Many firms 
treat depreciation as an indirect cost. Any firm that usually charges 
depreciation indirectly

[[Page 225]]

for a particular type of property must not charge depreciation for that 
property as a direct cost to the TIA.
    (b) In two situations, the contracting officer may grant an 
exception and allow a for-profit firm to use project funds, which 
includes both the Federal Government and recipient shares, to purchase 
real property or equipment (i.e., to charge to the project the full 
acquisition cost of the property). The two circumstances, which should 
be infrequent for equipment and extremely rare for real property, are 
those in which either:
    (1) The real property or equipment will be dedicated to the project 
and has a current fair market value that is less than $5,000 by the time 
the project ends; or
    (2) The contracting officer gives prior approval for the firm to 
include the full acquisition cost of the real property or equipment as 
part of the cost of the project (see Sec. 603.535).
    (c) If the contracting officer grants an exception in either of the 
circumstances described in paragraphs (b)(1) and (2) of this section, 
the real property or equipment must be subject to the property 
management standards in 10 CFR 600.321(b) through (e). As provided in 
those standards, the title to the real property or equipment will vest 
conditionally in the for-profit firm upon acquisition. A TIA, whether it 
is a fixed-support or expenditure-based award, must specify that any 
item of equipment that has a fair market value of $5,000 or more at the 
conclusion of the project also will be subject to the disposition 
process in 10 CFR 600.321(f), whereby the Federal Government will 
recover its interest in the property at that time.



Sec. 603.685  Management of real property and equipment by nonprofit participants.

    For nonprofit participants, a TIA's requirements for vesting of 
title, use, management, and disposition of real property or equipment 
acquired under the award are the same as those that apply to the 
participant's other Federal assistance awards. Specifically, the 
requirements are those in:
    (a) 10 CFR 600.231 and 600.232, for participants that are States and 
local governmental organizations; and
    (b) 10 CFR 600.132 and 600.134, for other nonprofit participants, 
with the exception of nonprofit GOCOs and FFRDCs that are exempted from 
the definition of ``recipient'' in 10 CFR 600.101. If a GOCO or FFRDC is 
a participant, the contracting officer must specify appropriate 
standards that conform as much as practicable with the requirements in 
its procurement contract. Note also that:
    (1) If the TIA is a cooperative agreement, 31 U.S.C. 6306 provides 
authority to vest title to tangible personal property in a nonprofit 
institution of higher education or in a nonprofit organization whose 
primary purpose is conducting scientific research, without further 
obligation to the Federal Government; and
    (2) A TIA therefore must specify any conditions on the vesting of 
title to real property or equipment acquired by any such nonprofit 
participant.



Sec. 603.690  Requirements for Federally-owned property.

    If DOE provides Federally-owned property to any participant for the 
performance of RD&D under a TIA, the contracting officer must require 
that participant to account for, use, and dispose of the property in 
accordance with:
    (a) 10 CFR 600.322, if the participant is a for-profit firm.
    (b) 10 CFR 600.232(f), if the participant is a State or local 
governmental organization. Note that 10 CFR 600.232(f) contains 
additional requirements for managing the property.
    (c) 10 CFR 600.133(a) and 600.134(f), if the participant is a 
nonprofit organization other than a GOCO or FFRDC (requirements for 
GOCOs and FFRDCs should conform with the property standards in their 
procurement contracts).



Sec. 603.695  Requirements for supplies.

    An expenditure-based TIA's provisions should permit participants to 
use their existing procedures to account

[[Page 226]]

for and manage supplies. A fixed-support TIA should not include 
requirements to account for or manage supplies.

                               Purchasing



Sec. 603.700  Standards for purchasing systems of for-profit firms.

    (a) If the TIA is an expenditure-based award, it should require for-
profit participants that currently perform under DOE assistance 
instruments subject to the purchasing standards in 10 CFR 600.331 to use 
the same requirements for the TIA, unless there are programmatic or 
business reasons to do otherwise (in which case the reasons must be 
documented in the award file).
    (b) Other for-profit participants under an expenditure-based TIA 
should be allowed to use their existing purchasing systems, as long as 
they flow down the applicable requirements in Federal statutes, 
Executive Orders or Government-wide regulations (see Appendices A and B 
to this part for a list of those requirements).



Sec. 603.705  Standards for purchasing systems of nonprofit organizations.

    So as not to force system changes for any nonprofit participant, an 
expenditure-based TIA should provide that each nonprofit participant's 
purchasing system comply with:
    (a) 10 CFR 600.236, if the participant is a State or local 
governmental organization.
    (b) 10 CFR 600.140 through 10 CFR 600.149, if the participant is a 
nonprofit organization other than a GOCO or FFRDC that is excepted from 
the definition of ``recipient'' in 10 CFR 600.101. If a GOCO or FFRDC is 
a participant, the TIA must specify appropriate standards that conform 
as much as practicable with requirements in its procurement contract.



      Subpart G_Award Terms Related to Other Administrative Matters



Sec. 603.800  Scope.

    This subpart addresses administrative matters that do not impose 
organization-wide requirements on a participant's financial management, 
property management, or purchasing system. Because an organization does 
not have to redesign its systems to accommodate award-to-award 
variations in these requirements, TIAs may differ in the requirements 
that they specify for a given participant, based on the circumstances of 
the particular RD&D project. To eliminate needless administrative 
complexity, the contracting officer should handle some requirements, 
such as the payment method, in a uniform way for the agreement as a 
whole.

                                Payments



Sec. 603.805  Payment methods.

    A TIA may provide for:
    (a) Reimbursement, as described in 10 CFR 600.312(a)(1), if it is an 
expenditure-based award.
    (b) Advance payments, as described in 10 CFR 600.312(a)(2), subject 
to the conditions in 10 CFR 600.312(b)(2)(i) through (iii).
    (c) Payments based on payable milestones. These are payments made 
according to a schedule that is based on predetermined measures of 
technical progress or other payable milestones. This approach relies 
upon the fact that, as the RD&D progresses throughout the term of the 
agreement, observable activity will be taking place. The recipient is 
paid upon the accomplishment of a predetermined measure of progress. A 
fixed-support TIA must use this payment method (this does not preclude 
use of an initial advance payment, if there is no alternative to meeting 
immediate cash needs). Payments based on payable milestones is the 
preferred method of payment for an expenditure-based TIA if well-defined 
outcomes can be identified.



Sec. 603.810  Method and frequency of payment requests.

    The procedure and frequency for payment requests depend upon the 
payment method, as follows:
    (a) For either reimbursements or advance payments, the TIA must 
allow recipients to submit requests for payment at least monthly. The 
contracting officer may authorize the recipients to use the forms or 
formats described in 10 CFR 600.312(d).

[[Page 227]]

    (b) If the payments are based on payable milestones, the recipient 
will submit a report or other evidence of accomplishment to the program 
official at the completion of each predetermined activity. If the award 
is an expenditure-based TIA that includes minimum cost sharing 
percentages for milestones (see 10 CFR 603.570(c)), the recipient must 
certify in the report that the minimum cost sharing requirement has been 
met. The contracting officer may approve payment to the recipient after 
receiving validation from the program manager that the milestone was 
successfully reached.



Sec. 603.815  Withholding payments.

    A TIA must provide that the contracting officer may withhold 
payments in the circumstances described in 10 CFR 600.312(g), but not 
otherwise.



Sec. 603.820  Interest on advance payments.

    If an expenditure-based TIA provides for either advance payments or 
payable milestones, the agreement must require the recipient to:
    (a) Maintain in an interest-bearing account any advance payments or 
milestone payment amounts received in advance of needs to disburse the 
funds for program purposes unless:
    (1) The recipient receives less than $120,000 in Federal grants, 
cooperative agreements, and TIAs per year;
    (2) The best reasonably available interest-bearing account would not 
be expected to earn interest in excess of $1,000 per year on the advance 
or milestone payments; or
    (3) The depository would require an average or minimum balance so 
high that it would not be feasible within the expected Federal and non-
Federal cash resources for the project.
    (b) Remit annually the interest earned to the contracting officer.

                  Revision of Budget and Program Plans



Sec. 603.825  Government approval of changes in plans.

    If it is an expenditure-based award, a TIA must require the 
recipient to obtain the contracting officer's prior approval if there is 
to be a change in plans that may result in a need for additional Federal 
funding (this is unnecessary for a fixed-support TIA because the 
recipient is responsible for additional costs of achieving the 
outcomes). Other than that, the program official's substantial 
involvement in the project should ensure that the Government has advance 
notice of changes in plans.



Sec. 603.830  Pre-award costs.

    Pre-award costs, as long as they are otherwise allowable costs of 
the project, may be charged to an expenditure-based TIA only with the 
specific approval of the contracting officer. All pre-award costs are 
incurred at the recipient's risk (e.g., DOE is not obligated to 
reimburse the costs if, for any reason, the recipient does not receive 
an award, or if the award is less than anticipated and inadequate to 
cover the costs).

                             Program Income



Sec. 603.835  Program income requirements.

    A TIA must apply the standards of 10 CFR 600.314 for program income 
that may be generated. The TIA must also specify if the recipient is to 
have any obligation to the Federal Government with respect to program 
income generated after the end of the project period (i.e., the period, 
as established in the award document, during which Federal support is 
provided).

                          Intellectual Property



Sec. 603.840  Negotiating data and patent rights.

    (a) The contracting officer must confer with program officials and 
assigned intellectual property counsel to develop an overall strategy 
for intellectual property that takes into account inventions and data 
that may result from the project and future needs the Government may 
have for rights in them. The strategy should take into account program 
mission requirements and any special circumstances that would support 
modification of standard patent and data terms, and should include 
considerations such as the extent of the recipient's contribution to the

[[Page 228]]

development of the technology; expected Government or commercial use of 
the technology; the need to provide equitable treatment among consortium 
or team members; and the need for the DOE to engage non-traditional 
Government contractors with unique capabilities.
    (b) Because a TIA entails substantial cost sharing by recipients, 
the contracting officer must use discretion in negotiating Government 
rights to data and patentable inventions resulting from the RD&D under 
the agreements. The considerations in Sec. Sec. 603.845 through 603.875 
are intended to serve as guidelines, within which there is considerable 
latitude to negotiate provisions appropriate to a wide variety of 
circumstances that may arise.



Sec. 603.845  Data rights requirements.

    (a) If the TIA is a cooperative agreement, the requirements at 10 
CFR 600.325(d), Rights in data-general rule, apply. The ``Rights in 
Data--General'' provision in Appendix A to Subpart D of 10 CFR 600 
normally applies. This provision provides the Government with unlimited 
rights in data first produced in the performance of the agreement, 
except as provided in paragraph (c) Copyright. However, in certain 
circumstances, the ``Rights in Data--Programs Covered Under Special 
Protected Data Statutes'' provision in Appendix A may apply.
    (b) If the TIA is an assistance transaction other than a cooperative 
agreement, the requirements at 10 CFR 600.325(e), Rights in data--
programs covered under special protected data statutes, normally apply. 
The ``Rights in Data--Programs Covered Under Special Data Statutes'' 
provision in Appendix A to Subpart D of 10 CFR 600 may be modified to 
accommodate particular circumstances (e.g., access to or expanded use 
rights in protected data among consortium or team members), or to list 
data or categories of data that the recipient must make available to the 
public. In unique cases, the contracting officer may negotiate special 
data rights requirements that vary from those in 10 CFR 600.325. 
Modifications to the standard data provisions must be approved by 
intellectual property counsel.



Sec. 603.850  Marking of data.

    To protect the recipient's interests in data, the TIA should require 
the recipient to mark any particular data that it wishes to protect from 
disclosure with a specific legend specified in the agreement identifying 
the data as data subject to use, release, or disclosure restrictions.



Sec. 603.855  Protected data.

    In accordance with law and regulation, the contracting officer must 
not release or disclose data marked with a restrictive legend (as 
specified in 603.850) to third parties, unless they are parties 
authorized by the award agreement or the terms of the legend to receive 
the data and are subject to a written obligation to treat the data in 
accordance with the marking.



Sec. 603.860  Rights to inventions.

    (a) The contracting officer should negotiate rights in inventions 
that represent an appropriate balance between the Government's interests 
and the recipient's interests.
    (1) The contracting officer has the flexibility to negotiate patent 
rights requirements that vary from that which the Bayh-Dole statute 
(Chapter 18 of Title 35, U.S.C.) and 42 U.S.C. 2182 and 5908 require. A 
TIA becomes an assistance transaction other than a cooperative agreement 
if its patent rights requirements vary from those required by these 
statutes.
    (2) If the TIA is a cooperative agreement, the patent rights 
provision of 10 CFR 600.325(b) or (c) or 10 CFR 600.136 applies, 
depending on the type of recipient. Unless a class waiver has been 
issued under 10 CFR 784.7, it will be necessary for a large, for-profit 
business to request a patent waiver to obtain title to subject 
inventions.
    (b) The contracting officer may negotiate Government rights that 
vary from the statutorily-required patent rights requirements described 
in paragraph (a)(2) of this section when necessary to accomplish program 
objectives and foster the Government's interests. Doing so would make 
the TIA an assistance transaction other than a cooperative agreement. 
The contracting officer must decide, with the

[[Page 229]]

help of the program manager and assigned intellectual property counsel, 
what best represents a reasonable arrangement considering the 
circumstances, including past investments and anticipated future 
investments of the recipient to the development of the technology, 
contributions under the current TIA, and potential commercial and 
Government markets. Any change to the standard patent rights provisions 
must be approved by assigned intellectual property counsel.
    (c) Taking past investments as an example, the contracting officer 
should consider whether the Government or the recipient has contributed 
more substantially to the prior RD&D that provides the foundation for 
the planned effort. If the predominant past contributor to the 
particular technology has been:
    (1) The Government, then the TIA's patent rights provision should be 
the standard provision as set forth in 10 CFR 600.325(b) or (c), or 10 
CFR 600.136, as applicable.
    (2) The recipient, then less restrictive patent requirements may be 
appropriate, which would make the TIA an assistance transaction other 
than a cooperative agreement. The contracting officer normally would, 
with the concurrence of intellectual property counsel, allow the 
recipient to retain title to subject inventions without going through 
the process of obtaining a patent waiver as required by 10 CFR 784. For 
example, with the concurrence of intellectual property counsel, the 
contracting officer also could eliminate or modify the nonexclusive 
paid-up license for practice by or on behalf of the Government to allow 
the recipient to benefit more directly from its investments.
    (d) For subawards under a TIA that is other than a cooperative 
agreement, the TIA should normally specify that subrecipients' invention 
rights are to be negotiated between recipient and subrecipient; that 
subrecipients will get title to inventions they make; or some other 
disposition of invention rights. Factors to be considered by the 
contracting officer in addressing subrecipient's invention rights 
include: the extent of cost sharing by parties at all tiers; a 
subrecipient's status as a small business, nonprofit, or FFRDC; and 
whether an appropriate field of use licensing requirement would meet the 
needs of the parties.
    (e) Consortium members may allocate invention rights in their 
collaboration agreement, subject to the review of the contracting 
officer (See Sec. 603.515). The contracting officer, in performing such 
review, should consider invention rights to be retained by the 
Government and rights that may be obtained by small business, nonprofit 
or FFRDC consortium members.



Sec. 603.865  March-in rights.

    A TIA's patent rights provision should include the Bayh-Dole march-
in rights set out in paragraph (j) of the Patent Rights (Small Business 
Firms and Nonprofit Organization) provision in Appendix A to subpart D 
of 10 CFR 600, or an equivalent clause, concerning actions that the 
Government may take to obtain the right to use subject inventions, if 
the recipient fails to take effective steps to achieve practical 
application of the subject inventions within a reasonable time. The 
march-in provision may be modified to best meet the needs of the 
program. However, only infrequently should the march-in provision be 
entirely removed (e.g., if a recipient is providing most of the funding 
for a RD&D project, with the Government providing a much smaller share).



Sec. 603.870  Marking of documents related to inventions.

    To protect the recipient's interest in inventions, the TIA should 
require the recipient to mark documents disclosing inventions it desires 
to protect by obtaining a patent. The recipient should mark the 
documents with a legend identifying them as intellectual property 
subject to public release or public disclosure restrictions, as provided 
in 35 U.S.C. 205.



Sec. 603.875  Foreign access to technology and U.S. competitiveness provisions.

    (a) Consistent with the objective of enhancing national security and 
United States competitiveness by increasing the public's reliance on the 
United States commercial technology,

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the contracting officer must include provisions in a TIA that addresses 
foreign access to technology developed under the TIA.
    (b) A provision must provide, as a minimum, that any transfer of the 
technology must be consistent with the U.S. export laws, regulations and 
the Department of Commerce Export Regulation at Chapter VII, Subchapter 
C, Title 15 of the CFR (15 CFR parts 730-774), as applicable.
    (c) A provision should also provide that any products embodying, or 
produced through the use of, any created intellectual property, will be 
manufactured substantially in the United States, and that any transfer 
of the right to use or sell the products must, unless the Government 
grants a waiver, require that the products will be manufactured 
substantially in the United States. In individual cases, the contracting 
officer, with the approval of the program official and intellectual 
property counsel, may waive or modify the requirement of substantial 
manufacture in the United States at the time of award, or subsequent 
thereto, upon a showing by the recipient that:
    (1) Alternative benefits are being secured for the United States 
taxpayer (e.g., increased domestic jobs notwithstanding foreign 
manufacture);
    (2) Reasonable but unsuccessful efforts have been made to transfer 
the technology under similar terms to those likely to manufacture 
substantially in the United States; or
    (3) Under the circumstances domestic manufacture is not commercially 
feasible.

                  Financial and Programmatic Reporting



Sec. 603.880  Reports requirements.

    A TIA must include requirements that, as a minimum, provide for 
periodic reports addressing program performance and, if it is an 
expenditure-based award, business/financial status. The contracting 
officer must require submission of the reports at least annually, and 
may require submission as frequently as quarterly (this does not 
preclude a recipient from electing to submit more frequently than 
quarterly the financial information that is required to process payment 
requests if the award is an expenditure-based TIA that uses 
reimbursement or advance payments under Sec. 603.810(a)). The 
requirements for the content of the reports are as follows:
    (a) The program portions of the reports must address progress toward 
achieving performance goals and milestones, including current issues, 
problems, or developments.
    (b) The business/financial portions of the reports, applicable only 
to expenditure-based awards, must provide summarized details on the 
status of resources (federal funds and non-federal cost sharing), 
including an accounting of expenditures for the period covered by the 
report. The report should compare the resource status with any payment 
and expenditure schedules or plans provided in the original award; 
explain any major deviations from those schedules; and discuss actions 
that will be taken to address the deviations. The contracting officer 
may require a recipient to separately identify in these reports the 
expenditures for each participant in a consortium and for each 
programmatic milestone or task, if the contracting officer, after 
consulting with the program official, judges that those additional 
details are needed for good stewardship.



Sec. 603.885  Updated program plans and budgets.

    In addition to reports on progress to date, a TIA may include a 
provision requiring the recipient to annually prepare an updated 
technical plan for future conduct of the research effort and a revised 
budget if there is a significant change from the initial budget.



Sec. 603.890  Final performance report.

    A TIA must require a final performance report that addresses all 
major accomplishments under the TIA.



Sec. 603.895  Protection of information in programmatic reports.

    If a TIA is awarded under the authority of 42 U.S.C. 7256(g) (i.e., 
it is a type of assistance transaction ``other than'' a contract, grant 
or a cooperative agreement), the contracting officer may inform a 
participant that the award is covered by a special protected data

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statute, which provides for the protection from public disclosure, for a 
period of up to 5 years after the date on which the information is 
developed, any information developed pursuant to this transaction that 
would be trade secret, or commercial or financial information that is 
privileged or confidential, if the information had been obtained from a 
non-Federal party.



Sec. 603.900  Receipt of final performance report.

    The TIA should make receipt of the final report a condition for 
final payment. If the payments are based on payable milestones, the 
submission and acceptance of the final report by the Government 
representative will be incorporated as an event that is a prerequisite 
for one of the payable milestones.

                Records Retention and Access Requirements



Sec. 603.905  Record retention requirements.

    A TIA must require participants to keep records related to the TIA 
(for which the agreement provides Government access under Sec. 603.910) 
for a period of three years after submission of the final financial 
status report for an expenditure-based TIA or final program performance 
report for a fixed-support TIA, with the following exceptions:
    (a) The participant must keep records longer than three years after 
submission of the final financial status report if the records relate to 
an audit, claim, or dispute that begins but does not reach its 
conclusion within the 3-year period. In that case, the participant must 
keep the records until the matter is resolved and final action taken.
    (b) Records for any real property or equipment acquired with project 
funds under the TIA must be kept for three years after final 
disposition.



Sec. 603.910  Access to a for-profit participant's records.

    (a) If a for-profit participant currently grants access to its 
records to the DCAA or other Federal Government auditors, the TIA must 
include for that participant the standard access-to-records requirements 
at 10 CFR 600.342(e). If the agreement is a fixed-support TIA, the 
language in 10 CFR 600.342(e) may be modified to provide access to 
records concerning the recipient's technical performance, without 
requiring access to the recipient's financial or other records. Note 
that any need to address access to technical records in this way is in 
addition to, not in lieu of, the need to address rights in data (see 
Sec. 603.845).
    (b) For other for-profit participants that do not currently give the 
Federal Government direct access to their records and are not willing to 
grant full access to records pertinent to the award, the contracting 
officer may negotiate limited access to the recipient's financial 
records. For example, if the audit provision of an expenditure-based TIA 
gives an IPA access to the recipient's financial records for audit 
purposes, the Federal Government must have access to the IPA's reports 
and working papers and the contracting officer need not include a 
provision requiring direct Government access to the recipient's 
financial records. For both fixed-support and expenditure-based TIAs, 
the TIA must include the access-to-records requirements at 10 CFR 
600.342(e) for records relating to technical performance.



Sec. 603.915  Access to a nonprofit participant's records.

    A TIA must include for any nonprofit participant the standard 
access-to-records requirement at:
    (a) 10 CFR 600.242(e), for a participant that is a State or local 
governmental organization;
    (b) 10 CFR 600.153(e), for a participant that is a nonprofit 
organization. The same requirement applies to any GOCO or FFRDC, even 
though nonprofit GOCOs and FFRDCs are exempted from the definition of 
``recipient'' in 10 CFR 600.101.

                       Termination and Enforcement



Sec. 603.920  Termination and enforcement requirements.

    (a) Termination. A TIA must include the following conditions for 
termination:

[[Page 232]]

    (1) An award may be terminated in whole or in part by the 
contracting officer, if a recipient materially fails to comply with the 
terms and conditions of the award.
    (2) Subject to a reasonable determination by either party that the 
project will not produce beneficial results commensurate with the 
expenditure of resources, that party may terminate in whole or in part 
the agreement by providing at least 30 days advance written notice to 
the other party, provided such notice is preceded by consultation 
between the parties. The two parties will negotiate the termination 
conditions, including the effective date and, in the case of partial 
termination, the portion to be terminated. If either party determines in 
the case of partial termination that the reduced or modified portion of 
the award will not accomplish the purpose for which the award was made, 
the award may be terminated in its entirety.
    (3) Unless otherwise negotiated, for terminations of an expenditure 
based TIA, DOE's maximum liability is the lesser of:
    (i) DOE's share of allowable costs incurred up to the date of 
termination, or
    (ii) The amount of DOE funds obligated to the TIA.
    (4) Unless otherwise negotiated, for terminations of a fixed-support 
based TIA, DOE shall pay the recipient a proportionate share of DOE's 
financial commitment to the project based on the percent of project 
completion as of the date of termination.
    (5) Notwithstanding paragraphs (3) and (4) of this section, if the 
award includes milestone payments, the Government has no obligation to 
pay the recipient beyond the last completed and paid milestone if the 
recipient decides to terminate.
    (b) Enforcement. The standards of 10 CFR 600.352 (for enforcement) 
and the procedures in 10 CFR 600.22 (for disputes and appeals) apply.



                      Subpart H_Executing the Award



Sec. 603.1000  Contracting officer's responsibilities at time of award.

    At the time of the award, the contracting officer must:
    (a) Ensure that the award document contains the appropriate terms 
and conditions and is signed by the appropriate parties, in accordance 
with Sec. Sec. 603.1005 through 603.1015.
    (b) Document the analysis of the agreement in the award file, as 
discussed in Sec. 603.1020.
    (c) Provide information about the award to the office responsible 
for reporting on TIAs.

                           The Award Document



Sec. 603.1005  General responsibilities.

    The contracting officer is responsible for ensuring that the award 
document is complete and accurate. The document should:
    (a) Address all issues;
    (b) State requirements directly. It is not helpful to readers to 
incorporate statutes or rules by reference, without sufficient 
explanation of the requirements. The contracting officer generally 
should not incorporate clauses from the Federal Acquisition Regulation 
(48 CFR parts 1-53) or Department of Energy Acquisition Regulation (48 
CFR parts 901-970) because those provisions are designed for procurement 
contracts that are used to acquire goods and services, rather than for a 
TIA or other assistance instruments.
    (c) Be written in clear and concise language, to minimize potential 
ambiguity.



Sec. 603.1010  Substantive issues.

    Each TIA is designed and negotiated individually to meet the 
specific requirements of the particular project, so the list of 
substantive issues that will be addressed in the award document may 
vary. Every award document must address:
    (a) Project scope. The scope is an overall vision statement for the 
project, including a discussion of the project's purpose, objectives, 
and detailed commercial goals. It is a critical provision because it 
provides a context for resolving issues that may arise during post-award 
administration. In a fixed-support TIA, the well-defined outcomes that 
reliably indicate the amount of effort expended and serve as the basis 
for the level of the fixed support must be

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clearly specified (see Sec. Sec. 603.305 and 603.560(a)).
    (b) Project management. The TIA should describe the nature of the 
relationship between the Federal Government and the recipient; the 
relationship among the participants, if the recipient is an 
unincorporated consortium; and the overall technical and administrative 
management of the project. A TIA is used to carry out collaborative 
relationships between the Federal Government and the recipient. 
Consequently, there must be substantial involvement of the DOE program 
official (see Sec. 603.220) and usually the contracting officer. The 
program official provides technical insight, which differs from the 
usual technical oversight of a project. The management provision also 
should discuss how modifications to the TIA are made.
    (c) Termination, enforcement, and disputes. A TIA must provide for 
termination, enforcement remedies, and disputes and appeals procedures, 
in accordance with Sec. 603.920.
    (d) Funding. The TIA must:
    (1) Show the total amount of the agreement and the total period of 
performance.
    (2) If the TIA is an expenditure-based award, state the Government's 
and recipient's agreed-upon cost shares for the project period and for 
each budget period. The award document should identify values for any 
in-kind contributions, determined in accordance with Sec. Sec. 603.530 
through 603.555, to preclude later disagreements about them.
    (3) Specify the amount of Federal funds obligated and the 
performance period for those obligated funds.
    (4) State, if the agreement is to be incrementally funded, that the 
Government's obligation for additional funding is contingent upon the 
availability of funds and that no legal obligation on the part of the 
Government exists until additional funds are made available and the 
agreement is amended. The TIA also must include a prior approval 
requirement for changes in plans requiring additional Government 
funding, in accordance with Sec. 603.825.
    (e) Payment. The TIA must identify the payment method and tell the 
recipient how, when, and where to submit payment requests, as discussed 
in Sec. Sec. 603.805 through 603.815. The payment method must take into 
account sound cash management practices by avoiding unwarranted cash 
advances. For an expenditure-based TIA, the payment provision must 
require the return of interest should excess cash balances occur, in 
accordance with Sec. 603.820. For any TIA using the milestone payment 
method described in Sec. 603.805(c), the TIA must include language 
notifying the recipient that the contracting officer may adjust amounts 
of future milestone payments if a project's expenditures fall too far 
below the projections that were the basis for setting the amounts (see 
Sec. 603.575(c) and Sec. 603.1105(c)).
    (f) Records retention and access to records. The TIA must include 
the records retention requirement at Sec. 603.910. The TIA also must 
provide for access to for-profit and nonprofit participants' records, in 
accordance with Sec. 603.915 and Sec. 603.920.
    (g) Patents and data rights. In designing the patents and data 
rights provision, the TIA must set forth the minimum required Federal 
Government rights in intellectual property generated under the award and 
address related matters, as provided in Sec. Sec. 603.840 through 
603.875. It is important to define all essential terms in the patent 
rights provision.
    (h) Foreign access to technology and U.S. competitiveness. The TIA 
must include provisions, in accordance with Sec. 603.875, concerning 
foreign access and domestic manufacture of products using technology 
generated under the award.
    (i) Title to, management of, and disposition of tangible property. 
The property provisions for for-profit and nonprofit participants must 
be in accordance with Sec. Sec. 603.685 through 603.700.
    (j) Financial management systems. For an expenditure-based award, 
the TIA must specify the minimum standards for financial management 
systems of both for-profit and nonprofit participants, in accordance 
with Sec. Sec. 603.615 and 603.620.
    (k) Allowable costs. If the TIA is an expenditure-based award, it 
must specify the standards that both for-profit and nonprofit 
participants are to use to determine which costs may be charged

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to the project, in accordance with Sec. Sec. 603.625 through 603.635, 
as well as Sec. 603.830.
    (l) Audits. If a TIA is an expenditure-based award, it must include 
an audit provision for both for-profit and nonprofit participants and 
subrecipients, in accordance with Sec. Sec. 603.640 through 603.670 and 
Sec. 603.675.
    (m) Purchasing system standards. The TIA should include a provision 
specifying the standards in Sec. Sec. 603.700 and 603.705 for 
purchasing systems of for-profit and nonprofit participants, 
respectively.
    (n) Program income. The TIA should specify requirements for program 
income, in accordance with Sec. 603.835.
    (o) Financial and programmatic reporting. The TIA must specify the 
reports that the recipient is required to submit and tell the recipient 
when and where to submit them, in accordance with Sec. Sec. 603.880 
through 603.900.
    (p) Assurances for applicable national policy requirements. The TIA 
must incorporate assurances of compliance with applicable requirements 
in Federal statutes, Executive Orders, or regulations (except for 
national policies that require certifications). Appendix A to this part 
contains a list of commonly applicable requirements that should be 
augmented with any specific requirements that apply to a particular TIA 
(e.g., general provisions in the appropriations act for the specific 
funds that are being obligating).
    (q) Other matters. The agreement should address any other issues 
that need clarification, including the name of the contracting officer 
who will be responsible for post-award administration and the statutory 
authority or authorities for entering into the TIA. In addition, the 
agreement must specify that it takes precedence over any inconsistent 
terms and conditions in collateral documents such as attachments to the 
TIA or the recipient's articles of collaboration.



Sec. 603.1015  Execution.

    (a) If the recipient is a consortium that is not formally 
incorporated and the consortium members prefer to have the agreement 
signed by all of them individually, the agreement may be executed in 
that manner.
    (b) If they wish to designate one consortium member to sign the 
agreement on behalf of the consortium as a whole, the determination 
whether to execute the agreement in that way should not be made until 
the contracting officer reviews the consortium's articles of 
collaboration with legal counsel.
    (1) The purposes of the review are to:
    (i) Determine whether the articles properly authorize one 
participant to sign on behalf of the other participants and are binding 
on all consortium members with respect to the RD&D project; and
    (ii) Assess the risk that otherwise could exist when entering into 
an agreement signed by a single member on behalf of a consortium that is 
not a legal entity. For example, the contracting officer should assess 
whether the articles of collaboration adequately address consortium 
members' future liabilities related to the RD&D project (e.g., whether 
they will have joint and severable liability).
    (2) After the review, in consultation with legal counsel, the 
contracting officer should determine whether it is better to have all of 
the consortium members sign the agreement individually or to allow them 
to designate one member to sign on all members' behalf.

                  Reporting Information About the Award



Sec. 603.1020  File documents.

    The award file should include an analysis which:
    (a) Briefly describes the program and details the specific 
commercial benefits that should result from the project supported by the 
TIA. If the recipient is a consortium that is not formally incorporated, 
a copy of the signed articles of collaboration should be attached.
    (b) Describes the process that led to the award of the TIA, 
including how DOE solicited and evaluated proposals and selected the one 
supported through the TIA.
    (c) Explains the basis for the decision that a TIA was the most 
appropriate instrument, in accordance with the factors in Subpart B of 
this part. The explanation must include the answers to

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the relevant questions in Sec. 603.225(a) through (d).
    (d) Explains how the recipient's cost sharing contributions was 
valued in accordance with Sec. Sec. 603.530 through 603.555. For a 
fixed-support TIA, the file must document the analysis required (see 
Sec. 603.560) to set the fixed level of Federal support; the 
documentation must explain how the recipient's minimum cost share was 
determined and how the expenditures required to achieve the project 
outcomes were estimated.
    (e) Documents the results of the negotiation, addressing all 
significant issues in the TIA's provisions.



                   Subpart I_Post-Award Administration



Sec. 603.1100  Contracting officer's post-award responsibilities.

    Generally, the contracting officer's post-award responsibilities are 
the same responsibilities as those for any cooperative agreement. 
Responsibilities for a TIA include:
    (a) Participating as the business partner to the DOE program 
official to ensure the Government's substantial involvement in the RD&D 
project. This may involve attendance with program officials at kickoff 
meetings or post-award conferences with recipients. It also may involve 
attendance at the consortium management's periodic meetings to review 
technical progress, financial status, and future program plans.
    (b) Tracking and processing of reports required by the award terms 
and conditions, including periodic business status reports, programmatic 
progress reports, and patent reports.
    (c) Handling payment requests and related matters. For a TIA using 
advance payments, that includes reviews of progress to verify that there 
is continued justification for advancing funds, as discussed in Sec. 
603.1105(b). For a TIA using milestone payments, it includes making any 
needed adjustments in future milestone payment amounts, as discussed in 
Sec. 603.1105(c).
    (d) Making continuation awards for subsequent budget periods, if the 
agreement includes separate budget periods. See 10 CFR 600.26(b). Any 
continuation award is contingent on availability of funds, satisfactory 
progress towards meeting the performance goals and milestones, submittal 
of required reports, and compliance with the terms and conditions of the 
award.
    (e) Coordinating audit requests and reviewing audit reports for both 
single audits of participants' systems and any award-specific audits 
that may be needed, as discussed in Sec. Sec. 603.1115 and 603.1120.
    (f) Responding, after coordination with program officials and 
intellectual property counsel, to recipient requests for permission to 
assign or license intellectual property to entities that do not agree to 
manufacture substantially in the United States, as described in Sec. 
603.875(b). Before granting approval for any technology, the contracting 
officer must secure assurance that any such assignment is consistent 
with license rights for Government use of the technology, and that other 
conditions for any such transfer are met.



Sec. 603.1105  Advance payments or payable milestones.

    The contracting officer must:
    (a) For any expenditure-based TIA with advance payments or payable 
milestones, forward to the responsible payment office any interest that 
the recipient remits in accordance with Sec. 603.820(b). The payment 
office will return the amounts to the Department of the Treasury's 
miscellaneous receipts account.
    (b) For any expenditure-based TIA with advance payments, consult 
with the program official and consider whether program progress reported 
in periodic reports, in relation to reported expenditures, is sufficient 
to justify the continued authorization of advance payments under Sec. 
603.805(b).
    (c) For any expenditure-based TIA using milestone payments, work 
with the program official at the completion of each payable milestone or 
upon receipt of the next business status report to:
    (1) Compare the total amount of project expenditures, as recorded in 
the payable milestone report or business status report, with the 
projected budget for completing the milestone; and

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    (2) Adjust future payable milestones, as needed, if expenditures lag 
substantially behind what was originally projected and the contracting 
officer judges that the recipient is receiving Federal funds sooner than 
necessary for program purposes. Before making adjustments, the 
contracting officer should consider how large a deviation is acceptable 
at the time of the milestone. For example, suppose that the first 
milestone payment for a TIA is $50,000, and that the awarding official 
set the amount based on a projection that the recipient would have to 
expend $100,000 to reach the milestone (i.e., the original plan was for 
the recipient's share at that milestone to be 50% of project 
expenditures). If the milestone payment report shows $90,000 in 
expenditures, the recipient's share at this point is 44% ($40,000 out of 
the total $90,000 expended, with the balance provided by the $50,000 
milestone payment of Federal funds). For this example, the contracting 
officer should adjust future milestones if a 6% difference in the 
recipient's share at the first milestone is judged to be too large, but 
not otherwise. Remember that milestone payment amounts are not meant to 
track expenditures precisely at each milestone and that a recipient's 
share will increase as it continues to perform RD&D and expend funds, 
until it completes another milestone to trigger the next Federal 
payment.



Sec. 603.1110  Other payment responsibilities.

    Regardless of the payment method, the contracting officer should 
ensure that:
    (a) The request complies with the award terms;
    (b) Available funds are adequate to pay the request;
    (c) The recipient will not have excess cash on hand, based on 
expenditure patterns; and
    (d) Payments are not withheld, except in one of the circumstances 
described in 10 CFR 600.312(g).



Sec. 603.1115  Single audits.

    For audits of for-profit participant's systems, under Sec. Sec. 
603.640 through 603.660, the contracting officer is the focal point for 
ensuring that participants submit audit reports and for resolving any 
findings in those reports. The contracting officer's responsibilities 
regarding single audits of nonprofit participant's systems are 
identified in the DOE ``Guide to Financial Assistance.''



Sec. 603.1120  Award-specific audits.

    Guidance on when and how the contracting officer should request 
additional audits for an expenditure-based TIA is identical to the 
guidance in 10 CFR 600.316(d). If the contracting officer requires an 
award-specific examination or audit of a for-profit participant's 
records related to a TIA, the contracting officer must use the auditor 
specified in the award terms and conditions, which should be the same 
auditor who performs periodic audits of the participant.



            Subpart J_Definitions of Terms Used in this Part



Sec. 603.1200  Definitions.

    The terms defined in 10 CFR 600.3 apply to all DOE financial 
assistance, including a TIA. In addition to those terms, the following 
terms are used in this part.



Sec. 603.1205  Advance.

    A payment made to a recipient before the recipient disburses the 
funds for program purposes. Advance payments may be based upon a 
recipient's request or a predetermined payment schedule.



Sec. 603.1210  Articles of collaboration.

    An agreement among the participants in a consortium that is not 
formally incorporated as a legal entity, by which they establish their 
relative rights and responsibilities (see Sec. 603.515).



Sec. 603.1215  Assistance.

    The transfer of a thing of value to a recipient to carry out a 
public purpose of support or stimulation authorized by a law of the 
United States (see 31 U.S.C. 6101(3)). Grants, cooperative

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agreements, and technology investment agreements are examples of legal 
instruments used to provide assistance.



Sec. 603.1220  Award-specific audit.

    An audit of a single TIA, usually done at the cognizant contracting 
officer's request, to help resolve issues that arise during or after the 
performance of the RD&D project. An award-specific audit of an 
individual award differs from a periodic audit of a participant (as 
defined in Sec. 603.1295).



Sec. 603.1225  Cash contributions.

    A recipient's cash expenditures made as contributions toward cost 
sharing, including expenditures of money that third parties contributed 
to the recipient.



Sec. 603.1230  Commercial firm.

    A for-profit firm or segment of a for-profit firm (e.g., a division 
or other business unit) that does a substantial portion of its business 
in the commercial marketplace.



Sec. 603.1235  Consortium.

    A group of RD&D-performing organizations that either is formally 
incorporated or that otherwise agrees to jointly carry out a RD&D 
project (see definition of ``articles of collaboration,'' in Sec. 
603.1210).



Sec. 603.1240  Cooperative agreement.

    A legal instrument which, consistent with 31 U.S.C. 6305, is used to 
enter into the same kind of relationship as a grant (see definition of 
``grant,'' in Sec. 603.1270), except that substantial involvement is 
expected between the DOE and the recipient when carrying out the 
activity contemplated by the cooperative agreement. The term does not 
include ``cooperative research and development agreements'' as defined 
in 15 U.S.C. 3710a.



Sec. 603.1245  Cost sharing.

    A portion of project costs from non-Federal sources that are borne 
by the recipient or non-Federal third parties on behalf of the 
recipient, rather than by the Federal Government.



Sec. 603.1250  Data.

    Recorded information, regardless of form or the media on which it 
may be recorded. The term includes technical data and computer software. 
It does not include information incidental to administration, such as 
financial, administrative, cost or pricing, or other management 
information related to the administration of a TIA.



Sec. 603.1255  Equipment.

    Tangible property, other than real property, that has a useful life 
of more than one year and an acquisition cost of $5,000 or more per 
unit.



Sec. 603.1260  Expenditure-based award.

    A Federal Government assistance award for which the amounts of 
interim payments or the total amount ultimately paid (i.e., the sum of 
interim payments and final payment) are subject to redetermination or 
adjustment, based on the amounts expended by the recipient in carrying 
out the purposes for which the award was made, as long as the 
redetermination or adjustment does not exceed the total Government funds 
obligated to the award. Most Federal Government grants and cooperative 
agreements are expenditure-based awards.



Sec. 603.1265  Expenditures or outlays.

    Charges made to the project or program. They may be reported either 
on a cash or accrual basis, as shown in the following table:

------------------------------------------------------------------------
If reports are prepared on a . . .
                                      Expenditures are the sum of . . .
------------------------------------------------------------------------
(a) Cash basis....................  (1) Cash disbursements for direct
                                     charges for goods and services;
                                    (2) The amount of indirect expense
                                     charge;
                                    (3) The value of third party in-kind
                                     contributions applied; and
                                    (4) The amount of cash advances and
                                     payments made to any other
                                     organizations for the performance
                                     of a part of the RD&D effort.
(b) Accrual basis.................  (1) Cash disbursements for direct
                                     charges for goods and services;
                                    (2) The amount of indirect expense
                                     incurred;
                                    (3) The value of in-kind
                                     contributions applied; and

[[Page 238]]

 
                                    (4) The net increase (or decrease)
                                     in the amounts owed by the
                                     recipient for goods and other
                                     property received, for services
                                     performed by employees,
                                     contractors, and other payees and
                                     other amounts becoming owed under
                                     programs for which no current
                                     services or performance are
                                     required.
------------------------------------------------------------------------



Sec. 603.1270  Grant.

    A legal instrument which, consistent with 31 U.S.C. 6304, is used to 
enter into a relationship:
    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of support or stimulation 
authorized by a law of the United States, rather than to acquire 
property or services for the Department of Energy's direct benefit or 
use.
    (b) In which substantial involvement is not expected between the DOE 
and the recipient when carrying out the activity contemplated by the 
grant.



Sec. 603.1275  In-kind contributions.

    The value of non-cash contributions made by a recipient or non-
Federal third parties toward cost sharing.



Sec. 603.1280  Institution of higher education.

    An educational institution that:
    (a) Meets the criteria in section 101 of the Higher Education Act of 
1965 (20 U.S.C. 1001); and
    (b) Is subject to the provisions of OMB Circular A-110, 
``Administrative Requirements for Grants and Agreements with 
Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations,'' as implemented by the Department of Energy at 10 CFR 
600, Subpart B.



Sec. 603.1285  Intellectual property.

    Patents, trademarks, copyrights, mask works, protected data, and 
other forms of comparable property protected by Federal law and foreign 
counterparts.



Sec. 603.1290  Participant.

    A consortium member or, in the case of an agreement with a single 
for-profit entity, the recipient. Note that a for-profit participant may 
be a firm or a segment of a firm (e.g., a division or other business 
unit).



Sec. 603.1295  Periodic audit.

    An audit of a participant, performed at an agreed-upon time (usually 
a regular time interval), to determine whether the participant as a 
whole is managing its Federal awards in compliance with the terms of 
those awards. Appendix A to this part describes what such an audit may 
cover. A periodic audit of a participant differs from an award-specific 
audit of an individual award (as defined in Sec. 603.1220).



Sec. 603.1300  Procurement contract.

    A Federal Government procurement contract. It is a legal instrument 
which, consistent with 31 U.S.C. 6303, reflects a relationship between 
the Federal Government and a State, a local government, or other non-
government entity when the principal purpose of the instrument is to 
acquire property or services for the direct benefit or use of the 
Federal Government. See the more detailed definition of the term 
``contract'' at 48 CFR 2.101.



Sec. 603.1305  Program income.

    Gross income earned by the recipient or a participant that is 
generated by a supported activity or earned as a direct result of a TIA. 
Program income includes but is not limited to: income from fees for 
performing services; the use or rental of real property, equipment, or 
supplies acquired under a TIA; the sale of commodities or items 
fabricated under a TIA; and license fees and royalties on patents and 
copyrights. Interest earned on advances of Federal funds is not program 
income.



Sec. 603.1310  Program official.

    A Federal Government program manager, project officer, scientific 
officer, or other individual who is responsible for managing the 
technical program

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being carried out through the use of a TIA.



Sec. 603.1315  Property.

    Real property, equipment, supplies, and intellectual property, 
unless stated otherwise.



Sec. 603.1320  Real property.

    Land, including land improvements, structures and appurtenances 
thereto, but excluding movable machinery and equipment.



Sec. 603.1325  Recipient.

    An organization or other entity that receives a TIA from DOE. Note 
that a for-profit recipient may be a firm or a segment of a firm (e.g., 
a division or other business unit).



Sec. 603.1330  Supplies.

    Tangible property other than real property and equipment. Supplies 
have a useful life of less than one year or an acquisition cost of less 
than $5,000 per unit.



Sec. 603.1335  Termination.

    The cancellation of a TIA, in whole or in part, at any time prior to 
either:
    (a) The date on which all work under the TIA is completed; or
    (b) The date on which Federal sponsorship ends, as given in the 
award document or any supplement or amendment thereto.



Sec. 603.1340  Technology investment agreement.

    A TIA is a special type of assistance instrument used to increase 
involvement of commercial firms in the DOE research, development and 
demonstration (RD&D) programs. A TIA, like a cooperative agreement, 
requires substantial Federal involvement in the technical or management 
aspects of the project. A TIA may be either a type of cooperative 
agreement or a type of assistance transaction other than a cooperative 
agreement, depending on the intellectual property provisions. A TIA is 
either:
    (a) A type of cooperative agreement with more flexible provisions 
tailored for involving commercial firms (as distinct from a cooperative 
agreement subject to all of the requirements in 10 CFR Part 600), but 
with intellectual property provisions in full compliance with the DOE 
intellectual property statutes (i.e., Bayh-Dole statute and 42 U.S.C. 
Sec. Sec. 2182 and 5908, as implemented in 10 CFR 600.325); or
    (b) An assistance transaction other than a cooperative agreement, if 
its intellectual property provisions vary from the Bayh-Dole statute and 
42 U.S.C. Sec. Sec. 2182 and 5908, which require the Government to 
retain certain intellectual property rights, and require differing 
treatment between large businesses and nonprofit organizations or small 
businesses.



  Sec. Appendix A to Part 603--Applicable Federal Statutes, Executive 
                 Orders, and Government-wide Regulations

    Whether the TIA is a cooperative agreement or a type of assistance 
transaction other than a cooperative agreement, the terms and conditions 
of the agreement must provide for recipients' compliance with applicable 
Federal statutes, Executive Orders and Government-wide regulations. This 
appendix lists some of the more common requirements to aid in 
identifying ones that apply to a specific TIA. The list is not intended 
to be all-inclusive, however; the contracting officer may need to 
consult legal counsel to verify whether there are others that apply 
(e.g., due to a provision in the appropriations act for the specific 
funds in use or due to a statute or rule that applies to a particular 
program or type of activity).

                            A. Certifications

    All financial assistance applicants, including applicants requesting 
a TIA must comply with the prohibitions concerning lobbying in a 
Government-wide common rule that the DOE has codified at 10 CFR part 
601. The ``List of Certifications and Assurances for SF 424(R&R)'' on 
the DOE Applicant and Recipient page at http://grants.pr.doe.gov 
includes the Government-wide certification that must be provided with a 
proposal for a financial assistance award, including a TIA.

                    B. Assurances That Apply to a TIA

    Currently the DOE approach to communicating Federal statutes, 
Executive Orders and Government-wide regulations is to provide potential 
applicants a list of ``National Policies Assurances to be Incorporated 
as Award Terms'' in the program announcement (This list is available on 
the Applicant and Recipient Page at http://grants.pr.doe.gov under Award 
Terms). The contracting officer

[[Page 240]]

should follow this approach for announcements that allow for the award 
of a TIA. The contracting officer should normally incorporate by 
reference or attach the list of national policy assurances to a TIA 
award. Of these requirements, the following four assurances apply to all 
TIA:
    1. Prohibitions on discrimination on the basis of race, color, or 
national origin in Title VI of the Civil Rights Act of 1964 (42 U.S.C. 
2000d, et seq.) as implemented by DOE regulations at 10 CFR part 1040. 
These apply to all financial assistance. They require recipients to flow 
down the prohibitions to any subrecipients performing a part of the 
substantive RD&D program (as opposed to suppliers from whom recipients 
purchase goods or services).
    2. Prohibitions on discrimination on the basis of age, in the Age 
Discrimination Act of 1975 (42 U.S.C. 6101, et seq.) as implemented by 
DOE regulations at 10 CFR part 1040. They apply to all financial 
assistance and require flow down to subrecipients.
    3. Prohibitions on discrimination on the basis of handicap, in 
section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) as 
implemented by DOE regulations at 10 CFR part 1041. They apply to all 
financial assistance and require flow down to subrecipients.
    4. Preferences for use of U.S.-flag air carriers in the 
International Air Transportation Fair Competitive Practices Act of 1974 
(49 U.S.C. 40118), which apply to uses of U.S. Government funds.

                           C. Other Assurances

    Additional assurance requirements may apply in certain 
circumstances, as follows:
    1. If construction work is to be done under a TIA or its subawards, 
it is subject to the prohibitions in Executive Order 11246 on 
discrimination on the basis of race, color, religion, sex, or national 
origin.
    2. If the RD&D involves human subjects or animals, it is subject to 
the requirements codified by the Department of Health and Human Services 
at 45 CFR part 46 and implemented by DOE at 10 CFR part 745 and rules on 
animal acquisition, transport, care, handling and use in 9 CFR parts 1 
through 4, Department of Agriculture rules and rules of the Department 
of Interior at 50 CFR parts 10 through 24 and Commerce at 50 CFR parts 
217 through 277, respectively. See item a. or b., respectively, under 
the heading ``Live organisms'' included on the DOE ``National Policy 
Assurances To Be Incorporated As Award Terms'' on the Applicant and 
Recipient Page.
    3. If the RD&D involves actions that may affect the environment, it 
is subject to the National Environmental Policy Act, and may also be 
subject to national policy requirements for flood-prone areas, coastal 
zones, coastal barriers, wild and scenic rivers, and underground sources 
of drinking water.
    4. If the project may impact a historic property, it is subject to 
the National Historic Preservation Act of 1966 (16 U.S.C. 470, et seq.).



  Sec. Appendix B to Part 603--Flow Down Requirements for Purchases of 
                           Goods and Services

    A. As discussed in Sec. 603.705, the contracting officer must 
inform recipients of any requirements that flow down to their purchases 
of goods or services (e.g., supplies or equipment) under their TIA. Note 
that purchases of goods or services differ from subawards, which are for 
substantive RD&D program performance.
    B. Appendix A to 10 CFR part 600, subpart D lists eight requirements 
that commonly apply to firms' purchases under grants or cooperative 
agreements. Of those eight, two that apply to all recipients' purchases 
under a TIA are:
    1. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352). A contractor 
submitting a bid to the recipient for a contract award of $100,000 or 
more must file a certification with the recipient that it has not and 
will not use Federal appropriations for certain lobbying purposes. The 
contractor also must disclose any lobbying with non-Federal funds that 
takes place in connection with obtaining any Federal award. For further 
details, see 10 CFR part 601, the DOE's codification of the Government-
wide common rule implementing this amendment.
    2. Debarment and suspension. Recipients may not make contract awards 
that exceed the simplified acquisition threshold (currently $100,000) 
and certain other contract awards may not be made to parties listed on 
the General Services Administration (GSA) ``List of Parties Excluded 
from Federal Procurement and Nonprocurement Programs.'' The GSA list 
contains the names of parties debarred, suspended, or otherwise excluded 
by agencies, and parties declared ineligible under statutory or 
regulatory authority other than Executive Orders 12549 (3 CFR, 1986 
Comp., p. 189) and 12689 (3 CFR, 1989 Comp., p. 235). For further 
details, see subparts A through E of 10 CFR part 606, which is the DOE's 
codification of the Government-wide common rule implementing Executive 
Orders 12549 and 12689.
    C. One other requirement applies only in cases where construction 
work is to be performed under the TIA with Federal funds or recipient 
funds counted toward required cost sharing:
    1. Equal Employment Opportunity. If the TIA includes construction 
work, the contracting officer should inform the recipient that 
Department of Labor regulations at 41 CFR 60-

[[Page 241]]

1.4(b) prescribe a clause that must be incorporated into construction 
awards and subawards. Further details are provided in Appendix B to 10 
CFR 600 subpart D, item 1.



PART 605_THE OFFICE OF ENERGY RESEARCH FINANCIAL ASSISTANCE PROGRAM--Table of Contents



Sec.
605.1 Purpose and scope.
605.2 Applicability.
605.3 Definitions.
605.4 Deviations.
605.5 The Office of Energy Research Financial Assistance Program.
605.6 Eligibility.
605.7 [Reserved]
605.8 Solicitation.
605.9 Application requirements.
605.10 Application evaluation and selection.
605.11 Additional requirements.
605.12 Funding.
605.13 Cost sharing.
605.14 Limitation of DOE liability.
605.15 Fee.
605.16 Indirect cost limitations.
605.17 [Reserved]
605.18 National security.
605.19 Continuation funding and reporting requirements.
605.20 Dissemination of results.

Appendix A to Part 605--Energy Research Program Office Descriptions

    Authority: Section 31 of the Atomic Energy Act, as amended, Pub. L. 
83-703, 68 Stat. 919 (42 U.S.C. 2051); sec. 107 of the Energy 
Reorganization Act of 1974, Pub. L. 93-438, 88 Stat. 1240 (42 U.S.C. 
5817); Federal Nonnuclear Energy Research and Development Act of 1974, 
Pub. L. 93-577, 88 Stat. 1878 (42 U.S.C. 5901 et seq.); secs. 644 and 
646 of the Department of Energy Organization Act, Pub. L. 95-91, 91 
Stat. 599 (42 U.S.C. 7254 and 7256); Federal Grant and Cooperative 
Agreement Act, as amended (31 U.S.C. 6301 et seq.).

    Source: 57 FR 40583, Sept. 3, 1992, unless otherwise noted.



Sec. 605.1  Purpose and scope.

    This part sets forth the policies and procedures applicable to the 
award and administration of grants and cooperative agreements by the DOE 
Office of Energy Research (ER) and the Science and Technology Advisor 
(STA) Organization for basic and applied research, educational and/or 
training activities, conferences and related activities.



Sec. 605.2  Applicability.

    (a) This part applies to all grants and cooperative agreements 
awarded after the effective date of this amended rule.
    (b) Except as otherwise provided by this part, the award and 
administration of grants and cooperative agreements shall be governed by 
10 CFR part 600 (DOE Financial Assistance Rules).



Sec. 605.3  Definitions.

    In addition to the definitions provided in 10 CFR part 600, the 
following definitions are provided for purposes of this part--
    Basic and applied research means basic and applied research and that 
part of development not related to the development of specific systems 
or products. The primary aim of research is scientific study and 
experimentation directed toward advancing the state of the art or 
increasing knowledge or understanding rather than focusing on a specific 
system or product.
    Educational/Training means support for education or related 
activities for an individual or organization that will enhance education 
levels and skills in particular scientific or technical areas of 
interest to DOE.
    Principal investigator means the scientist or other individual 
designated by the recipient to direct the project.
    Recipient obligation means the amounts of orders placed, contracts 
and subawards issued, services received, and similar transactions during 
a given period that will require payment by the recipient during the 
same or a future period.
    Related conference means scientific or technical conferences, 
symposia, workshops or seminars for the purpose of communicating or 
exchanging information or views pertinent to ER/STA.
    Special purpose equipment means equipment which is used only for 
research, medical, scientific, educational, or other related project 
activity.



Sec. 605.4  Deviations.

    Single-case deviations from this part may be authorized in writing 
by the Director or Deputy Director of ER or the Head of a Contracting 
Activity upon the written request of DOE staff,

[[Page 242]]

an applicant for an award, or a recipient. A request from an applicant 
or a recipient must be submitted to or through the cognizant contracting 
officer. Whenever a proposed deviation from this part would be a 
deviation from 10 CFR part 600, the deviation must also be authorized in 
accordance with the procedures prescribed in that part.



Sec. 605.5  The Office of Energy Research Financial Assistance Program.

    (a) DOE may issue, under the Office of Energy Research Financial 
Assistance Program, 10 CFR part 605, awards for basic and applied 
research, educational/training activities, conferences, and other 
related activities under the ER program areas set forth in paragraph (b) 
of this section and described in appendix A of this part.
    (b) The Program areas are:
    (1) Basic Energy Sciences
    (2) Field Operations Management
    (3) Fusion Energy
    (4) Health and Environmental Research
    (5) High Energy and Nuclear Physics
    (6) Scientific Computing Staff
    (7) Superconducting Super Collider
    (8) University and Science Education Programs
    (9) Program Analysis; and
    (10) Other program areas of interest as may be described in a notice 
of availability published in the Federal Register.



Sec. 605.6  Eligibility.

    Any university or other institution of higher education or other 
non-profit or for-profit organization, non-Federal agency, or entity is 
eligible for a grant or cooperative agreement. An unaffiliated 
individual also is eligible for a grant or cooperative agreement.



Sec. 605.7  [Reserved]



Sec. 605.8  Solicitation.

    (a) The Catalog of Federal Domestic Assistance number for this 
program is 81.049, and its solicitation control number is ERFAP 10 CFR 
part 605.
    (b) An application for a new or renewal award under this 
solicitation may be submitted at any time to DOE at the address 
specified in paragraph (c) of this section. New or renewal applications 
shall receive consideration for funding generally within 6 months but, 
in any event, no later than 12 months from the date of receipt by DOE.
    (c) Applicants may obtain application forms, described in Sec. 
605.9(b), and additional information from the Acquisition and Assistance 
Management Division, Office of Energy Research, ER-64, Department of 
Energy, Washington, DC 20585, (301) 903-5544, and shall submit 
applications to the same address.
    (d) DOE shall publish annually, in the Federal Register, a notice of 
the availability of the Office of Energy Research Financial Assistance 
Program. DOE shall also publish notices or abbreviated notices of 
availability in trade and professional journals, and news media, and use 
other means of communication, as appropriate.
    (1) Each notice of availability shall cite this part and shall 
include:
    (i) The Catalog of Federal Domestic Assistance number and 
solicitation control number of the program;
    (ii) The amount of money available or estimated to be available for 
award;
    (iii) The name of the responsible DOE program official to contact 
for additional information, and an address where application forms may 
be obtained;
    (iv) The address for submission of applications; and
    (v) Any evaluation criteria in addition to those set forth in Sec. 
605.10.
    (2) The notice of availability may also include any other relevant 
information helpful to applicants such as:
    (i) Program objectives,
    (ii) A project agenda or potential areas for project initiatives,
    (iii) Problem areas requiring additional effort, and
    (iv) Any other information which identifies areas in which grants or 
cooperative agreements may be made.
    (e) DOE is under no obligation to pay for any costs associated with 
the preparation or submission of applications.
    (f) DOE reserves the right to fund, in whole or in part, any, all, 
or none of the applications submitted.
    (g) To be considered for a renewal award under this part, an 
incumbent

[[Page 243]]

recipient shall submit a renewal application as provided in Sec. 605.9 
(c) and (h).



Sec. 605.9  Application requirements.

    (a) An original and seven copies of the application for initial 
support must be submitted except that State governments, local 
governments, or Indian tribal governments shall not be required to 
submit more than the original and two copies of the application.
    (b) Each new or renewal application in response to this part must 
include:
    (1) An application face page, DOE Form 4650.2 (approved by OMB under 
OMB Control No. 1910-1400). However, the facesheet of the application 
for State and local governments and Indian tribal government applicants 
shall be the facesheet of Standard Form (SF) 424 (approved by OMB under 
OMB Control Number 0348-0043).
    (2) A detailed description of the proposed project, including the 
objectives of the project, in relationship to DOE's program and the 
applicant's plan for carrying it out;
    (3) Detailed information about the background and experience of the 
principal investigator(s) (including references to publications), the 
facilities and experience of the applicant, and the cost-sharing 
arrangements, if any.
    (4) A detailed budget for the entire proposed period of support with 
written justification sufficient to evaluate the itemized list of costs 
provided on the entire project.
    (i) Numerical details on items of cost provided by State and local 
government and Indian tribal government applicants shall be on Standard 
Form 424A, Budget Information for Non-Construction Programs (approved 
under OMB Control No. 0348-0044). All other applicants shall use budget 
form ERF 4620.1 (approved by OMB under Control No. 1910-1400).
    (ii) DOE may, subsequent to receipt of an application, request 
additional budgetary information from an applicant when necessary for 
clarification or to make informed preaward determinations under 10 CFR 
part 600.
    (5) Any preaward assurances required pursuant to 10 CFR parts 600 
and 605.
    (c) Applications for a renewal award must be submitted in an 
original and seven copies, except that State governments, local 
governments, or Indian tribes are required to submit only an original 
and two copies. (Approved by OMB under OMB Control Numbers 0348-0005--
0348-0009)
    (d) The application must be signed by an official who is authorized 
to act for the applicant organization and to commit the applicant to 
comply with the terms and conditions of the award, if one is issued, or 
if unaffiliated, by the individual applicant. (See Sec. 605.19(a)(1) 
for requirements on continuation awards.)
    (e) All applications which involve research, development, or 
demonstration activities when such activities:
    (1) Have a unique geographic focus and are directly relevant to the 
governmental responsibilities of a State or local government within the 
geographic area;
    (2) Necessitate the preparation of an Environmental Impact Statement 
under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq. (1976)); or
    (3) Are to be initiated at a particular site or location and require 
unusual measures to limit the possibility of adverse exposure or hazard 
to the general public, are subject to the provisions of Executive Order 
12372 and 10 CFR part 1005.

Anyone planning to submit such applications should contact ER for 
further information about compliance requirements.
    (f) DOE may return an application which does not include all 
information and documentation required by statute, this part, 10 CFR 
part 600 or the notice of availability, when the nature of the omission 
precludes review of the application.
    (g) During the review of the complete application, DOE may request 
the submission of additional information only if the information is 
essential to evaluate the application.
    (h) In addition to including the information described in paragraphs 
(b), (c), and (d) of this section, an application for a renewal award 
must be submitted no later than six months prior to the scheduled 
expiration of the project period and must be on the same forms

[[Page 244]]

and include the same type of information as that required for initial 
applications. The renewal application must outline and justify a program 
and budget for the proposed project period, showing in detail the 
estimated cost of the proposed project, together with an indication of 
the amount of funds needed and the amount of cost sharing, if any. The 
application also shall describe and explain the reasons for any change 
in the scope or objectives of the proposed project, and shall compare 
and explain any difference between the estimates in the proposed budget 
and actual costs experienced as of the date of the application.
    (i) DOE is not required to return to the applicant an application 
which is not selected or funded.
    (j) Renewal applications must include a separate section that 
describes the results of work accomplished through the date of the 
renewal application and how such results relate to the activities 
proposed to be undertaken in the renewal period.



Sec. 605.10  Application evaluation and selection.

    (a) Applications shall be evaluated for funding generally within 6 
months but, in any event, no later than 12 months from the date of 
receipt by DOE. After DOE has held an application for 6 months, the 
applicant may, in response to DOE's request, be required to revalidate 
the terms of the original application.
    (b) DOE staff shall perform an initial evaluation of all 
applications to ensure that the information required by this part is 
provided, that the proposed effort is technically sound and feasible, 
and that the effort is consistent with program funding priorities. For 
applications which pass the initial evaluation, DOE shall review and 
evaluate each application received based on the criteria set forth below 
and in accordance with the Merit Review System developed as required 
under DOE Financial Assistance Regulations, 10 CFR part 600.
    (c) DOE shall select evaluators on the basis of their professional 
qualifications and expertise. Evaluators shall be required to comply 
with all applicable DOE rules or directives concerning the use of 
outside evaluators.
    (d) DOE shall evaluate new and renewal applications based on the 
following criteria which are listed in descending order of importance:
    (1) Scientific and/or technical merit or the educational benefits of 
the project;
    (2) Appropriateness of the proposed method or approach;
    (3) Competency of applicant's personnel and adequacy of proposed 
resources;
    (4) Reasonableness and appropriateness of the proposed budget; and
    (5) Other appropriate factors established and set forth by ER in a 
notice of availability or in a specific solicitation.
    (e) Also, DOE shall consider, as part of the evaluation, other 
available advice or information as well as program policy factors such 
as ensuring an appropriate balance among the program areas listed in 
Sec. 605.5(b) of this part.
    (f) In addition to the evaluation criteria set forth in paragraphs 
(d) and (e) of this section, DOE shall consider the recipient's 
performance under the existing award during the evaluation of a renewal 
application.
    (g) Selection of applications for award will be based upon the 
findings of the technical evaluations, the importance and relevance of 
the proposed application to ER's mission, and fund availability. Cost 
reasonableness and realism will also be considered to the extent 
appropriate.
    (h) After the selection of an application, DOE may, if necessary, 
enter into negotiation with an applicant. Such negotiations are not a 
commitment that DOE will make an award.



Sec. 605.11  Additional requirements.

    (a) A recipient performing research, development, or related 
activities involving the use of human subjects must comply with DOE 
regulations in 10 CFR part 745, ``Protection of Human Subjects,'' and 
any additional provisions which may be included in the Special Terms and 
Conditions of an award.
    (b) A recipient performing research involving recombinant DNA 
molecules

[[Page 245]]

and/or organisms and viruses containing recombinant DNA molecules shall 
comply with the National Institutes of Health ``Guidelines for Research 
Involving Recombinant DNA Molecules'' (51 FR 16958, May 7, 1986), or 
such later revision of those guidelines as may be published in the 
Federal Register. (The guidelines are available from the Office of 
Recombinant DNA Activities, National Institutes of Health, Building 31, 
room 4B11, Bethesda, Maryland 20892.)
    (c) Any recipient performing research on warm-blooded animals shall 
comply with the Federal Laboratory Animal Welfare Act of 1966, as 
amended (7 U.S.C. 2131 et seq.) and the regulations promulgated 
thereunder by the Secretary of Agriculture at 9 CFR chapter I, 
subchapter A, pertaining to the care, handling, and treatment of warm 
blooded animals held or used for research, teaching, or other activities 
supported by Federal awards. The recipient shall comply with the 
guidelines described in DHHS Publication No. [NIH] 86-23, ``Guide for 
the Care and Use of Laboratory Animals,'' or succeeding revised 
editions. (This guide is available from the Office for Protection from 
Research Risks, Office of the Director, National Institutes of Health, 
Building 31, room 4B09, Bethesda, Maryland 20205.)



Sec. 605.12  Funding.

    (a) The project period during which DOE expects to provide support 
for an approved project under this part shall generally not exceed 3 
years and may exceed 5 years only if DOE makes a renewal award or 
otherwise extends the award. The project period shall be specified on 
the Notice of Financial Assistance Award (DOE Form 4600.1).
    (b) Each budget period, of an award under this part, shall generally 
be 12 months and may be as much as 24 months as determined appropriate 
by ER.



Sec. 605.13  Cost sharing.

    Cost sharing is not required nor will it be considered as a 
criterion in the evaluation and selection process unless otherwise 
provided under Sec. 605.10(d)(5).



Sec. 605.14  Limitation of DOE liability.

    Awards under this part are subject to the requirement that the 
maximum DOE obligation to the recipient is the amount shown in the 
Notice of Financial Assistance Award as the amount of DOE funds 
obligated. DOE shall not be obligated to make any additional, 
supplemental, continuation, renewal or other awards for the same or any 
other purpose.



Sec. 605.15  Fee.

    (a) Notwithstanding 10 CFR part 600, a fee may be paid, in 
appropriate circumstances, to a recipient which is a small business 
concern as qualified under the criteria and size standards of 13 CFR 
part 121 in order to permit the concern to participate in the ER 
Financial Assistance Program. Whether or not it is appropriate to pay a 
fee shall be determined by the Contracting Officer who shall, at a 
minimum, apply the following guidelines:
    (1) Whether the acceptance of an award will displace other work the 
small business is currently engaged in or committed to assume in the 
near future; or
    (2) Whether the acceptance of an award will, in the absence of 
paying a fee, cause substantial financial distress to the business. In 
evaluating financial distress, the Contracting Officer shall balance 
current displacement against reasonable future benefit to the company. 
(If the award will result in the beneficial expansion of the existing 
business base of the company, then no fee would generally be 
appropriate.) Fees shall not be paid to other entities except as a 
deviation from 10 CFR part 600, nor shall fees be paid under awards in 
support of conferences.
    (b) To request a fee, a small business concern shall submit with its 
application a written self certification that it is a small business 
concern qualified under the criteria and size standards in 13 CFR part 
121. In addition, the application must state the amount of fee requested 
for the entire project period and the basis for requesting the amount, 
and must also state why payment of a fee by DOE would be appropriate.

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    (c) If the Contracting Officer determines that payment of a fee is 
appropriate under paragraph (a) of this section, the amount of fee shall 
be that determined to be reasonable by the Contracting Officer. The 
Contracting Officer shall, at a minimum, apply the following guidelines 
in determining the fee amount:
    (1) The fee base shall include the estimated allowable cost of 
direct salaries and wages and allocable fringe benefits. This fee base 
shall exclude all other direct and indirect costs.
    (2) The fee amount expressed as a percentage of the appropriate fee 
base pursuant to paragraph (c)(1) of this section, shall not exceed the 
percentage rate of fee that would result if a Federal agency contracted 
for the same amount of salaries, wages, and allocable fringe benefits 
under a cost reimbursement contract.
    (3) Fee amounts, determined pursuant to paragraphs (c)(1) and (c)(2) 
of this section, shall be appropriately reduced when:
    (i) Advance payments are provided; and/or
    (ii) Title to property acquired with DOE funds vests in the 
recipient (10 CFR part 600).
    (d) Notwithstanding 10 CFR part 600, any fee awarded shall be a 
fixed fee and shall be payable on an annual basis in proportion to the 
work completed, as determined by the Contracting Officer, upon 
satisfactory submission and acceptance by DOE of the progress report. If 
the project period is shortened due to termination, or the project 
period is not fully funded, the fee shall be reduced by an appropriate 
amount.



Sec. 605.16  Indirect cost limitations.

    Awards issued under this part for conferences and scientific/
technical meetings will not include payment for indirect costs.



Sec. 605.17  [Reserved]



Sec. 605.18  National security.

    Activities under ER's Financial Assistance Program shall not involve 
classified information (i.e., Restricted Data, formerly Restricted Data, 
National Security Information). However, if in the opinion of the 
recipient or DOE such involvement becomes expected prior to the closeout 
of the award, the recipient or DOE shall notify the other in writing 
immediately. If the recipient believes any information developed or 
acquired may be classifiable, the recipient shall not provide the 
potentially classifiable information to anyone, including the DOE 
officials with whom the recipient normally communicates, except the 
Director of Classification, and shall protect such information as if it 
were classified until notified by DOE that a determination has been made 
that it does not require such handling. Correspondence which includes 
the specific information in question shall be sent by registered mail to 
U.S. Department of Energy, Attn: Director of Classification, DP-32, 
Washington, DC 20585. If the information is determined to be classified, 
the recipient may wish to discontinue the project in which case the 
recipient and DOE shall terminate the award by mutual agreement. If the 
award is to be terminated, all material deemed by DOE to be classified 
shall be forwarded to DOE, in a manner specified by DOE, for proper 
disposition. If the recipient and DOE wish to continue the award, even 
though classified information is involved, the recipient shall be 
required to obtain both personnel and facility security clearances 
through the Office of Safeguards and Security for Headquarters awards, 
or from the cognizant field office Division of Safeguards and Security 
for awards obtained through DOE field organizations. Costs associated 
with handling and protecting any such classified information shall be 
negotiated at the time that the determination to proceed is made.



Sec. 605.19  Continuation funding and reporting requirements.

    (a) A recipient shall periodically report to DOE on the project's 
progress in meeting the project objectives of the award. The following 
types of reports shall be used:
    (1) Progress reports. After issuance of an initial award and if 
future support is recommended, recipients must submit a satisfactory 
progress report in order to receive continuation awards for the 
remainder of the project period.

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The original and two copies of the required report (generally not to 
exceed two pages per project or task) must be submitted to the ER 
program manager 90 days prior to the anticipated continuation funding 
date and contain the following information: on the first page, provide 
the project title, principal investigator/project director name, period 
of time report covers, name and address of recipient organization, DOE 
award number, the amount of unexpended funds, if any, that are 
anticipated to be left at the end of the current budget period, and if 
the amount exceeds 10 percent of the funds available for the budget 
period, provide information as to why the excess funds are anticipated 
to be available and how they will be used in the next budget period. 
Report should state whether aims have changed from original application 
and if they have, provided revised aims. Include results of work to 
date. Emphasize findings and their significance to the field, and any 
real or anticipated problems. A completed budget page must be submitted 
with the continuation progress report when a change to anticipated 
future costs will exceed 25 percent of the original recommended future 
budget.
    (2) Notice of Energy R&D Project. A Notice of Energy R&D Project, 
DOE Form 1430.22, which summarizes the purpose and scope of the project, 
must be submitted in accordance with the Distribution and Schedule of 
Documents set forth at the end of this section. Copies of the form may 
be obtained from a DOE Contracting Office.
    (3) Special reports. The recipient shall report the following events 
to DOE as soon after they occur as possible:
    (i) Problems, delays, or adverse conditions which will materially 
affect the ability to attain project objectives, or prevent the meeting 
of time schedules and goals. The report must describe the remedial 
action the recipient has taken or plans to take and any action DOE 
should take to alleviate the problems.
    (ii) Favorable developments or events which enable meeting time 
schedules and goals sooner or at less cost than anticipated or producing 
more beneficial results than originally projected.
    (4) Final report. A final report summarizing the entire 
investigation must be submitted by the recipient within 90 days after 
the final project period ends or the award is terminated. Satisfactory 
completion of an award will be contingent upon the receipt of this 
report. The final report shall follow the same outline as a progress 
report. Manuscripts prepared for publication should be appended.
    (5) Financial status report (FSR) (OMB No. 0348-0039). The FSR is 
required within 90 days after completion of each budget period; for 
budget periods exceeding 12 months, an FSR is also required within 90 
days after this first 12 months unless waived by the Contracting 
Officer.
    (b) DOE may extend the deadline date for any report if the recipient 
submits a written request before the deadline which adequately justifies 
an extension.
    (c) A table summarizing the various types of reports, time for 
submission, number of copies is set forth below. The schedule of reports 
shall be as prescribed in this table, unless the award document 
specifies otherwise.
    (d) DOE review of performance. DOE or its authorized representatives 
may make site visits, at any reasonable time, to review the project. DOE 
may provide such technical assistance as may be requested.
    (e) Subrecipient progress reporting. Recipients may place progress 
reporting requirements on a subrecipient consistent with the provisions 
of this section.

                 Distribution and Schedule of Documents
------------------------------------------------------------------------
                                                               Number of
                                                               copies to
                Type                          When due             be
                                                               submitted
------------------------------------------------------------------------
1. Summary: 200 words on scope and    Immediately after award         3
 purpose (Notice of Energy R&D         and with each
 Project).                             application for
                                       renewal.
2. Renewal..........................  6 months before the             8
                                       project period ends.
3. Progress Report..................  90 days prior to the            3
                                       next budget period (or
                                       as part of a renewal
                                       application).

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4. Other progress reports, brief      As deemed appropriate           3
 topical reports, etc. (Designated     by the recipient.
 when significant results develop or
 when work has direct programmatic
 impact).
5. Reprints, Conference papers......  Same as 4 above........         3
6. Final Report.....................  Within 90 days after            3
                                       termination of the
                                       project.
7. Financial Status Report. (FSR)...  Within 90 days after            3
                                       completion of the
                                       project period; for
                                       budget periods
                                       exceeding 12 months an
                                       FSR is also required
                                       within 90 days after
                                       the first 12-month
                                       period.
------------------------------------------------------------------------
Note: Report types 5 and 6 require with submission two copies of DOE
  Form 1332.16, University-Type Contractor and Grantee Recommendations
  for Disposition of Scientific and Technical Document.



Sec. 605.20  Dissemination of results.

    (a) Recipients are encouraged to disseminate project results 
promptly. DOE reserves the right to utilize, and have others utilize, to 
the extent it deems appropriate, the reports resulting from awards.
    (b) DOE may waive progress reporting requirements set forth in Sec. 
605.19, if the recipient submits to DOE a copy of its own report which 
is published or accepted for publication in a recognized scientific or 
technical journal and which satisfies the information requirements of 
the program.
    (c) Recipients are urged to publish results through normal 
publication channels in accordance with the applicable provisions of 10 
CFR part 600.
    (d) The article shall include an acknowledgment that the project was 
supported, in whole or in part, by a DOE award, and specify the award 
number, but state that such support does not constitute an endorsement 
by DOE of the views expressed in the article.



    Sec. Appendix A to Part 605--The Energy Research Program Office 
                              Descriptions

                        1. Basic Energy Sciences

    This program supports basic science research efforts in a variety of 
disciplines to broaden the energy supply and technological base 
knowledge. The major science division and its objectives are as follows:

                         (a) Energy Biosciences

    The primary objective of this program is to generate a basis of 
understanding of fundamental biological mechanisms in the areas of 
botanical and microbiological sciences that will support biotechnology 
development related to energy. The research serves as the basic 
information foundation with respect to renewable resource productivity 
for fuels and chemicals, microbial conversions or renewable materials 
and biological systems for the conservation of energy. This office has 
special requirements on the submission of preapplications, when to 
submit, and the length of the preapplication/application; applicants are 
encouraged to contact the office regarding these requirements.

                          (b) Chemical Sciences

    This program sponsors experimental and theoretical research on 
liquids, gases, plasmas, and solids. The focus is on their chemical 
properties and the interactions of their component molecules, atoms, 
ions, and electrons. The subprogram objective is to expand, through 
support of basic research, our knowledge in the various areas of 
chemistry; the long-term goal is to contribute to new or improved 
processes for developing and using domestic energy resources in an 
efficient and environmentally sound manner. Disciplinary areas covered 
include physical, organic, and inorganic chemistry; chemical physics; 
atomic physics; photochemistry; radiation chemistry; thermodynamics; 
thermophysics; separations science; analytical chemistry; and actinide 
chemistry.

                             (c) Geosciences

    The goal of this program is to develop a quantitative and predictive 
understanding of the energy-related aspects of processes within the 
earth and at the solar-terrestrial interface. The emphasis is on the 
upper levels of the earth's crust and the focus is on geophysics and 
geochemistry of rock-fluid systems and interactions. Specific topical 
areas receiving emphasis include: High resolution geophysical imaging; 
fundamental properties of rocks, minerals, and fluids; scientific 
drilling; and sedimentary basin systems. The resulting improved 
understanding

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and knowledge base are needed to assist efforts in the utilization of 
the Nation's energy resources in an environmentally acceptable fashion.

                        (d) Engineering Research

    This program's objectives are: (1) To extend the body of knowledge 
underlying current engineering practice in order to open new ways for 
enhancing energy savings and production, prolonging useful equipment 
life, and reducing costs while maintaining output and performance 
quality; and (2) to broaden the technical and conceptual base for 
solving future engineering problems in the energy technologies. Long-
term research topics of current interest include: foundations of 
bioprocessing of fuels and energy related wastes, fracture mechanics, 
experimental and theoretical studies of multiphase flows, intelligent 
machines, and diagnostics and control for plasma processing of 
materials.

                         (e) Materials Sciences

    The objective of this program is to increase the understanding of 
phenomena and properties important to materials behavior that will 
contribute to meeting the needs of present and future energy 
technologies. It is comprised of the subfields metallurgy, ceramics, 
solid state physics, materials chemistry, and related disciplines where 
the emphasis is on the science of materials.

                      (f) Advanced Energy Projects

    The objective of this program is to support exploratory research on 
novel concepts related to energy. The concepts may be in any field 
related to energy but must not fall into an area of programmatic 
responsibility of an existing ER technical program. The research is 
usually aimed at establishing the scientific feasibility of a concept 
and, where appropriate, at estimating its economic viability.

                     2. Field Operations Management

    This office administers special purpose support programs that cut 
across DOE program areas. In conjunction with this activity, it supports 
related conferences, research, and training initiatives that further 
these areas of interest.

               (a) Laboratory Technology Transfer Program

    The ER Laboratory Technology Transfer (LTT) Program has dedicated 
funding which fulfills the legislative mandate to more effectively 
transfer research and technology from Energy Research laboratories to 
industry. By design, this program provides only partial funding for 
technology research projects and personnel exchanges with industry and 
universities. Mandatory cost-sharing by industry and other partners 
ensures that cooperative projects will focus on those that generate real 
interest in the private sector and facilitate the transfer of 
technology. The program supports laboratory-industry personnel 
exchanges; comprehensive program evaluation; and cost-shared technology 
research, especially CRADAs to advance precompetitive research projects 
to a point where they can be evaluated for commercial applications. 
Other activities of the ER Laboratory Technology Transfer Program 
include coordinating technology transfer operations throughout the ER 
laboratory system; coordinating technology transfer elements of the 
institutional planning process; contributing to Departmental technology 
transfer policy development; and implementing appropriate outreach 
activities.

                            3. Fusion Energy

    The magnetic fusion energy program is an applied research and 
development program whose goal is to develop the scientific and 
technological information required to design and construct magnetic 
fusion energy systems. This goal is pursued by three divisions, whose 
major functions are listed below.

                    (a) Applied Plasma Physics (APP)

    This Division seeks to develop that body of physics knowledge which 
permits advancement of the fusion program on a sound basis. APP research 
programs provide: (1) The theoretical understanding of fusion plasmas 
necessary for interpreting results from present experiments, and the 
planning and design of future confinement devices; (2) the data on 
plasma properties, atomic physics and new diagnostic techniques for 
operational support of confinement experiments; research and development 
of Heavy Ion Fusion Accelerator (HIFAR) and reactor studies in support 
of the development of Inertial Fusion Energy (IFE).

                         (b) Confinement Systems

    This Division has as its primary objective the conduct of research 
efforts to investigate and resolve basic physics issues associated with 
medium- to large-scale confinement devices. These devices are used to 
experimentally explore the limits of specific confinement concepts as 
well as to study associated physical phenomena. Specific areas of 
interest include: the production of increased plasma densities and 
temperatures; the understanding of the physical laws governing plasma 
energy transport and confinement scaling; equilibrium and stability of 
high plasma pressure; the investigation of plasma interaction with 
radio-frequency waves; and the study and control of particle transport 
in the plasma.

[[Page 250]]

                     (c) Development and Technology

    This Division supports research and development of the technology 
necessary for fabrication and operation of present and future plasma and 
fusion devices. The program also pursues R&D and system studies 
pertaining to critical feasibility issues of fusion technology and 
development.

                  4. Health and Environmental Research

    The goals of this research program are as follows: (1) To provide, 
through basic and applied research, the scientific information required 
to identify, understand and anticipate the long-term health and 
environmental consequences of energy use and development; and (2) to 
utilize the Department's unique resources to solve major scientific 
problems in medicine, biology and the environment. The goals of the 
program are accomplished through the effort of its divisions, which are:

              (a) Health Effects and Life Sciences Research

    This is a broad program of basic and applied biological research. 
The objectives are: (1) To develop experimental information from 
biological systems for estimating or predicting risks of carcinogenesis, 
mutagenesis, and delayed toxicological effects associated with low level 
human exposures to energy-related radiations and chemicals; (2) to 
define mechanisms involved in the induction of biological damage 
following exposure to low levels of energy-related agents; (3) to 
develop new technologies for detecting and quantifying latent health 
effects associated with such agents; (4) to support fundamental research 
in structural biology user facilities at DOE laboratories; and (5) to 
create and apply new technologies and resources for characterizing the 
molecular nature of the human genome.
    Increasing emphasis will be placed on: Understanding of mechanisms 
by which low level exposures to radiation and/or energy-related 
chemicals produce long-term health impacts; development of new 
technologies for estimating human health risks from low level exposures; 
development and application of technologies and approaches for cost-
effective characterization of the human genome.

            (b) Medical Applications and Biophysical Research

    The objectives of this program comprise several areas: (1) To 
develop new concepts and techniques for detecting and measuring 
hazardous physical and chemical agents related to energy production; (2) 
to evaluate chemical and radiation exposures and dosimetry for health 
protection application; (3) to determine the physical and chemical 
mechanisms of radiation action in biological systems; and (4) to develop 
new instrumentation and technology for biological and biomedical 
research. In addition, Medical Application research is aimed at 
enhancing the beneficial applications of radiation, and radionuclides, 
in the diagnosis, study, and treatment of human diseases. This includes 
the development of new techniques for radioactive isotope production, 
labeled pharmaceuticals, imaging devices, and radiation beam 
applications for the improved diagnosis and therapy of human diseases or 
the study of human physiological processes. A new area of interest 
involves the integration of Nuclear Medicine and Molecular Biology. This 
includes development of radioisotopes and new molecular 
radiopharmaceutical probes specific to disease-associated targets for 
improved diagnosis and therapy.

                       (c) Environmental Sciences

    The objectives of the program relate to environmental processes 
affected by energy production and use. For example, the program develops 
information on the physical, chemical and biological processes that 
cycle and transport energy related material and nutrients through the 
atmosphere, and the ocean margin. Specific emphasis is placed on 
hydrological transport, mobility and degradation of energy-related 
contaminants by microorganisms in subsurface systems.
    This program also addresses global environmental change from 
increases in atmospheric carbon dioxide and other greenhouse gases. The 
scope of the global change program encompasses the carbon cycle, climate 
modeling and diagnostics, ecosystem responses, the role of the ocean in 
global change and experiments to quantify the links between greenhouse 
gas increases and climate change. A new dimension of this program 
addresses the role of molecular biology in understanding the ecosystem 
response to global change.

                   5. High Energy and Nuclear Physics

    This program supports 90 percent of the U.S. efforts in high energy 
and nuclear physics. The objectives of these programs are indicated 
below:

          (a) Nuclear Physics (Including Nuclear Data Program)

    The primary objectives of this program are an understanding of the 
interactions and structures of atomic nuclei and nuclear matter at the 
most elementary level possible, and an understanding of the fundamental 
forces of nature as manifested in nuclear matter.

                         (b) High Energy Physics

    The primary objectives of this program are to understand the nature 
and relationships among fundamental forces of nature and to understand 
the ultimate structure of matter

[[Page 251]]

in terms of the properties and interrelations of its basic constituents.

                      6. Scientific Computing Staff

    The goal of this program is to advance the understanding of the 
fundamental concepts of mathematics, statistics, and computer science 
underlying the complex mathematical models of the key physical processes 
involved in the research and development programs of DOE. Broad emphasis 
is given in three major categories: analytical and numerical methods, 
information analysis techniques, and advanced concepts.

                 7. Superconducting Super Collider (SSC)

    The goals of the Superconducting Super Collider are to build a 
proton-proton collider with an energy of 20 TeV per proton, to construct 
and operate experimental systems to study the interactions of these 
protons, to establish the premier international laboratory for high 
energy physics reasearch, and to create a major resource for science 
education. The Office of the Superconducting Super Collider administers 
research grants associated with the SSC Laboratory's physics, 
accelerator, and associated technology research and development 
programs.

                   8. University and Science Education

    The Office of University and Science Education supports a variety of 
science, mathematics and engineering education precollege through 
postgraduate programs aimed at strengthening the Nation's science 
education and research infrastructure. DOE's education mission has been 
expanded to include increasing emphasis on the precollege and general 
public literacy areas. Much of the support involves the use of the 
unique resources (scientists, facilities and equipment) at DOE's 
national laboratories and research facilities, and includes research 
and/or other ``hands-on'' opportunities for precollege and postsecondary 
students, teachers, and faculty members. In addition to programs 
centered in DOE facilities, a number of other educational activities are 
supported, including:

               (a) Pre-Freshman Enrichment Program (PREP)

    PREP supports projects at colleges and universities aimed at seeking 
out gindividuals, typically under-represented in science-based careers, 
during junior high school and early high school years (sixth through 
tenth grades) and providing these individuals with pre-freshman 
enrichment activities to identify, motivate and prepare them for 
science-based careers. Projects must include concentrated, integrated 
activities that enhance the student's understanding of science and 
mathematics, must have a summer component at least four weeks in length, 
and may also include a pre-summer or post-summer component.

                  (b) Museum Science Education Program

    This program funds museum projects that support the development of 
the media of informal energy-related science education. The media of 
informal science education include, but are not limited to: Interactive 
exhibits, demonstrations, hands-on activities, teacher-student 
curriculum and film/video/software productions. Examples of energy-
related subjects include, but are not limited to: high energy and 
nuclear physics, nuclear science and technologies, global warming, waste 
management, energy efficiency, new materials development, fossil energy 
resources, renewable technologies, risk assessment, energy/environment 
and other timely topics. The purpose of the program is the development 
and use of creative informal science education media which focus on 
energy-related science and technology.

             (c) University Research Instrumentation Program

    The University Research Instrumentation Program has been developed 
as part of an interagency effort under the coordination of the Office of 
Science and Technology Policy to help alleviate the overall shortage of 
sophisticated state-of-the-art instruments required for advanced 
scientific and technical research at universities. The overall program 
objective is to assist university and college scientists in 
strengthening their capabilities to conduct long-range experimental/
scientific research in specific energy areas of direct interest to DOE 
through the acquisition of large scientific/technical pieces of 
equipment. Only those colleges and universities that currently have DOE 
funded research projects, which require the requested equipment, 
totalling at least $150,000 in the specific area will be selected (more 
complete eligibility guidelines and principal research areas of 
particular DOE interest in any given year are available from the program 
office). Smaller research instruments (less than $100,000 each) are not 
eligible for consideration in this program. No specific fraction of cost 
sharing is required but the level of non-Federal funds to be provided 
will be considered in final selection of awards under the program.

       (d) Experimental Program To Stimulate Competitive Research

    The purpose of the DOE Experimental Program to Stimulate Competitive 
Research is to enhance the capabilities of the eligible designated 
States to develop science and engineering manpower in energy-related 
areas and to conduct nationally competitive energy-related research. 
Planning committees

[[Page 252]]

within eligible States may apply for planning, implementation and/or 
training efforts (list of eligible States and activities to be supported 
in any given year as well as cost-sharing requirements are available 
from the program office). Separate applications for planning/
implementation and graduate traineeships are required. Planning/
implementation applications must contain information that details 
development of a State-wide improvement plan for energy-related research 
and human resources, while training grant applications must detail the 
need for energy-related specific and technical educational disciplines.

                    (e) Nuclear Engineering Research

    The objective of this program is to support research efforts aimed 
at strengthening University-based nuclear engineering programs. Specific 
areas of basic and applied research of interest include, but are not 
limited to: (1) Material behavior in a radiation environment typical of 
advanced nuclear power plants; (2) real-time instrumentation that 
identifies and applies innovative measurements technologies in nuclear-
related fields; (3) advanced nuclear reactor concepts; (4) applied 
nuclear sciences that address improvements in the applications of 
radiation and the understanding of the interaction of radiation with 
matter; (5) engineering science research applicable to advanced nuclear 
reactor concepts, industry safety and reliability concerns; (6) 
neutronics that address improvements in reactor computational 
methodologies and knowledge of the basic fission processes; and (7) 
nuclear thermal hydraulics that address improvements of models and 
analysis of thermal hydraulic behavior in an advanced nuclear reactor 
system.

       (f) Used Energy-Related Laboratory Equipment (ERIE) Program

    In accordance with DOE's responsibility to encourage research and 
development in the energy area, grants of used energy-related laboratory 
equipment for use in energy-oriented educational programs in the life, 
physical and environmental sciences, and engineering are available to 
universities, colleges and other non-profit educational institutions of 
higher learning in the United States. An institution is not required to 
have a current DOE grant or contract in order to participate in this 
program. The program office should be contacted for specific information 
on how to access the list of eligible equipment under this program. The 
cost of care and handling incident to the grant must be borne by the 
institution.

                           9. Program Analysis

    The Office of Program Analysis conducts assessments to identify 
research opportunities in specific areas of interest to DOE programs.



PART 609_LOAN GUARANTEES FOR PROJECTS THAT EMPLOY INNOVATIVE TECHNOLOGIES--Table of Contents



Sec.
609.1 Purpose and scope.
609.2 Definitions.
609.3 Solicitations.
609.4 Submission of Pre-Applications.
609.5 Evaluation of Pre-Applications.
609.6 Submission of Applications.
609.7 Programmatic, technical and financial evaluation of Applications.
609.8 Term sheets and conditional commitments.
609.9 Closing on the Loan Guarantee Agreement.
609.10 Loan Guarantee Agreement.
609.11 Lender eligibility and servicing requirements.
609.12 Project Costs.
609.13 Principal and interest assistance contract.
609.14 Full faith and credit and incontestability.
609.15 Default, demand, payment, and collateral liquidation.
609.16 Perfection of liens and preservation of collateral.
609.17 Audit and access to records.
609.18 Deviations.

    Authority: 42 U.S.C. 7254, 16511-16514.

    Source: 74 FR 63549, Dec. 4, 2009, unless otherwise noted.



Sec. 609.1  Purpose and scope.

    (a) This part sets forth the policies and procedures that DOE uses 
for receiving, evaluating, and, after consultation with the Department 
of the Treasury, approving applications for loan guarantees to support 
Eligible Projects under Section 1703 of Title XVII of the Energy Policy 
Act of 2005, as amended.
    (b) Except as set forth in paragraph (c) of this section, this part 
applies to all Pre-Applications, Applications, Conditional Commitments 
and Loan Guarantee Agreements to support Eligible Projects under Section 
1703 of Title XVII of the Energy Policy Act of 2005, as amended.
    (c) Sections 609.3, 609.4 and 609.5 of this part shall not apply to 
any Pre-Applications, Applications, Conditional Commitments or Loan 
Guarantee Agreements submitted, or entered into,

[[Page 253]]

as applicable, on or before December 31, 2007; provided, that DOE 
accepted the Pre-Application and invited an Application pursuant to such 
Pre-Application.
    (d) Part 1024 of chapter X of title 10 of the Code of Federal 
Regulations shall not apply to actions taken under this part.



Sec. 609.2  Definitions.

    Act means Title XVII of the Energy Policy Act of 2005 (42 U.S.C. 
16511-16514), as amended.
    Administrative Cost of Issuing a Loan Guarantee means the total of 
all administrative expenses that DOE incurs during:
    (1) The evaluation of a Pre-Application, if a Pre-Application is 
requested in a solicitation, and an Application for a loan guarantee;
    (2) The offering of a Term Sheet, executing the Conditional 
Commitment, negotiation, and closing of a Loan Guarantee Agreement; and
    (3) The servicing and monitoring of a Loan Guarantee Agreement, 
including during the construction, startup, commissioning, shakedown, 
and operational phases of an Eligible Project.
    Applicant means any person, firm, corporation, company, partnership, 
association, society, trust, joint venture, joint stock company, or 
other business entity or governmental non-Federal entity that has 
submitted an Application to DOE and has the authority to enter into a 
Loan Guarantee Agreement with DOE under the Act.
    Application means a comprehensive written submission in response to 
a solicitation or a written invitation from DOE to apply for a loan 
guarantee pursuant to Sec. 609.6 of this part.
    Borrower means any Applicant who enters into a Loan Guarantee 
Agreement with DOE and issues Guaranteed Obligations.
    Commercial Technology means a technology in general use in the 
commercial marketplace in the United States at the time the Term Sheet 
is issued by DOE. A technology is in general use if it has been 
installed in and is being used in three or more commercial projects in 
the United States in the same general application as in the proposed 
project, and has been in operation in each such commercial project for a 
period of at least five years. The five-year period shall be measured, 
for each project, starting on the in service date of the project or 
facility employing that particular technology. For purposes of this 
section, commercial projects include projects that have been the 
recipients of a loan guarantee from DOE under this part.
    Conditional Commitment means a Term Sheet offered by DOE and 
accepted by the Applicant, with the understanding of the parties that if 
the Applicant thereafter satisfies all specified and precedent funding 
obligations and all other contractual, statutory and regulatory 
requirements, or other requirements, DOE and the Applicant will execute 
a Loan Guarantee Agreement: Provided that the Secretary may terminate a 
Conditional Commitment for any reason at any time prior to the execution 
of the Loan Guarantee Agreement; and Provided further that the Secretary 
may not delegate this authority to terminate a Conditional Commitment.
    Contracting Officer means the Secretary of Energy or a DOE official 
authorized by the Secretary to enter into, administer and/or terminate 
DOE Loan Guarantee Agreements and related contracts on behalf of DOE.
    Credit Subsidy Cost has the same meaning as ``cost of a loan 
guarantee'' in section 502(5)(C) of the Federal Credit Reform Act of 
1990 (2 U.S.C. 661a(5)(C)), which is the net present value, at the time 
the Loan Guarantee Agreement is executed, of the following estimated 
cash flows, discounted to the point of disbursement:
    (1) Payments by the Government to cover defaults and delinquencies, 
interest subsidies, or other payments; less
    (2) Payments to the Government including origination and other fees, 
penalties, and recoveries; including the effects of changes in loan or 
debt terms resulting from the exercise by the Borrower, Eligible Lender 
or other Holder of an option included in the Loan Guarantee Agreement.
    DOE means the United States Department of Energy.
    Eligible lender means:
    (1) Any person or legal entity formed for the purpose of, or engaged 
in the

[[Page 254]]

business of, lending money, including, but not limited to, commercial 
banks, savings and loan institutions, insurance companies, factoring 
companies, investment banks, institutional investors, venture capital 
investment companies, trusts, or other entities designated as trustees 
or agents acting on behalf of bondholders or other lenders; and
    (2) Any person or legal entity that meets the requirements of Sec. 
609.11 of this part, as determined by DOE; or
    (3) The Federal Financing Bank.
    Eligible project means a project located in the United States that 
employs a New or Significantly Improved Technology that is not a 
Commercial Technology, and that meets all applicable requirements of 
section 1703 of the Act (42 U.S.C. 16513), the applicable solicitation 
and this part.
    Equity means cash contributed by the Borrowers and other principals. 
Equity does not include proceeds from the non-guaranteed portion of 
Title XVII loans, proceeds from any other non-guaranteed loans, or the 
value of any form of government assistance or support.
    Federal Financing Bank means an instrumentality of the United States 
government created by the Federal Financing Bank Act of 1973 (12 U.S.C. 
2281 et seq). The Bank is under the general supervision of the Secretary 
of the Treasury.
    Guaranteed Obligation means any loan or other debt obligation of the 
Borrower for an Eligible Project for which DOE guarantees all or any 
part of the payment of principal and interest under a Loan Guarantee 
Agreement entered into pursuant to the Act.
    Holder means any person or legal entity that owns a Guaranteed 
Obligation or has lawfully succeeded in due course to all or part of the 
rights, title, and interest in a Guaranteed Obligation, including any 
nominee or trustee empowered to act for the Holder or Holders.
    Intercreditor Agreement means any agreement or instrument among DOE 
and one or more other persons providing financing or other credit 
arrangements or that otherwise provides for rights of DOE, in each case, 
in form and substance satisfactory to DOE and entered into or accepted 
by DOE in connection with a DOE loan guarantee upon a determination by 
DOE that such agreement or instrument is reasonable and necessary to 
protect the interests of the United States, and addressing such matters 
as collateral sharing, priorities (subject always to Section 1702(d)(3) 
of Title XVII) and voting rights among creditors and other intercreditor 
arrangements, as such agreement or instrument may be amended or modified 
from time to time with the consent of DOE.
    Loan Agreement means a written agreement between a Borrower and an 
Eligible Lender or other Holder containing the terms and conditions 
under which the Eligible Lender or other Holder will make loans to the 
Borrower to start and complete an Eligible Project.
    Loan Guarantee Agreement means a written agreement that, when 
entered into by DOE and a Borrower, an Eligible Lender or other Holder, 
pursuant to the Act, establishes the obligation of DOE to guarantee the 
payment of all or a portion of the principal and interest on specified 
Guaranteed Obligations of a Borrower to Eligible Lenders or other 
Holders subject to the terms and conditions specified in the Loan 
Guarantee Agreement.
    New or Significantly Improved Technology means a technology 
concerned with the production, consumption or transportation of energy 
and that is not a Commercial Technology, and that has either:
    (1) Only recently been developed, discovered or learned; or
    (2) Involves or constitutes one or more meaningful and important 
improvements in productivity or value, in comparison to Commercial 
Technologies in use in the United States at the time the Term Sheet is 
issued.
    OMB means the Office of Management and Budget in the Executive 
Office of the President.
    Pre-Application means a written submission in response to a DOE 
solicitation that broadly describes the project proposal, including the 
proposed role of a DOE loan guarantee in the project,

[[Page 255]]

and the eligibility of the project to receive a loan guarantee under the 
applicable solicitation, the Act and this part.
    Project costs means those costs, including escalation and 
contingencies, that are to be expended or accrued by Borrower and are 
necessary, reasonable, customary and directly related to the design, 
engineering, financing, construction, startup, commissioning and 
shakedown of an Eligible Project, as specified in Sec. 609.12 of this 
part. Project costs do not include costs for the items set forth in 
Sec. 609.12(c) of this part.
    Project Sponsor means any person, firm, corporation, company, 
partnership, association, society, trust, joint venture, joint stock 
company or other business entity that assumes substantial responsibility 
for the development, financing, and structuring of a project eligible 
for a loan guarantee and, if not the Applicant, owns or controls, by 
itself and/or through individuals in common or affiliated business 
entities, a five percent or greater interest in the proposed Eligible 
Project, or the Applicant.
    Secretary means the Secretary of Energy or a duly authorized 
designee or successor in interest.
    Term Sheet means an offering document issued by DOE that specifies 
the detailed terms and conditions under which DOE may enter into a 
Conditional Commitment with the Applicant. A Term Sheet imposes no 
obligation on the Secretary to enter into a Conditional Commitment.
    United States means the several States, the District of Columbia, 
the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American 
Samoa or any territory or possession of the United States of America.



Sec. 609.3  Solicitations.

    (a) DOE may issue solicitations to invite the submission of Pre-
Applications or Applications for loan guarantees for Eligible Projects. 
DOE must issue a solicitation before proceeding with other steps in the 
loan guarantee process including issuance of a loan guarantee. A Project 
Sponsor or Applicant may only submit one Pre-Application or Application 
for one project using a particular technology. A Project Sponsor or 
Applicant, in other words, may not submit a Pre-Application or 
Application for multiple projects using the same technology.
    (b) Each solicitation must include, at a minimum, the following 
information:
    (1) The dollar amount of loan guarantee authority potentially being 
made available by DOE in that solicitation;
    (2) The place and time for response submission;
    (3) The name and address of the DOE representative whom a potential 
Project Sponsor may contact to receive further information and a copy of 
the solicitation;
    (4) The form, format, and page limits applicable to the response 
submission;
    (5) The amount of the application fee (First Fee), if any, that will 
be required;
    (6) The programmatic, technical, financial and other factors the 
Secretary will use to evaluate response submissions, including the loan 
guarantee percentage requested by the Applicant and the relative 
weightings that DOE will use when evaluating those factors; and
    (7) Such other information as DOE may deem appropriate.



Sec. 609.4  Submission of Pre-Applications.

    In response to a solicitation requesting the submission of Pre-
Applications, either Project Sponsors or Applicants may submit Pre-
Applications to DOE. Pre-Applications must meet all requirements 
specified in the solicitation and this part. At a minimum, each Pre-
Application must contain all of the following:
    (a) A cover page signed by an individual with full authority to bind 
the Project Sponsor or Applicant that attests to the accuracy of the 
information in the Pre-Application, and that binds the Project 
Sponsor(s) or Applicant to the commitments made in the Pre-Application. 
In addition, the information requested in paragraphs (b) and (c) of this 
section should be submitted in a volume one and the information 
requested in paragraphs (d) through (h) of this section should be 
submitted in a volume two, to expedite the DOE review process.
    (b) An executive summary briefly encapsulating the key project 
features

[[Page 256]]

and attributes of the proposed project (for clarity, with respect to any 
project in which project assets or facilities are jointly owned by the 
Applicant and one or more other persons, each of whom owns an undivided 
ownership interest in such project assets or facilities, the Applicant 
may submit a project proposal with respect to its undivided ownership 
interest in such project assets or facilities);
    (c) A business plan which includes an overview of the proposed 
project, including:
    (1) A description of the Project Sponsor, including all entities 
involved, and its experience in project investment, development, 
construction, operation and maintenance;
    (2) A description of the new or significantly improved technology to 
be employed in the project, including:
    (i) A report detailing its successes and failures during the pilot 
and demonstration phases;
    (ii) The technology's commercial applications;
    (iii) The significance of the technology to energy use or emission 
control;
    (iv) How and why the technology is ``new'' or ``significantly 
improved'' compared to technology already in general use in the 
commercial marketplace in the United States;
    (v) Why the technology to be employed in the project is not in 
``general use;''
    (vi) The owners or controllers of the intellectual property 
incorporated in and utilized by such technologies; and
    (vii) The manufacturer(s) and licensee(s), if any, authorized to 
make the technology available in the United States, the potential for 
replication of commercial use of the technology in the United States, 
and whether and how the technology is or will be made available in the 
United States for further commercial use;
    (3) The estimated amount, in reasonable detail, of the total Project 
Costs;
    (4) The timeframe required for construction and commissioning of the 
project;
    (5) A description of any primary off-take or other revenue-
generating agreements that will provide the primary sources of revenues 
for the project, including repayment of the debt obligations for which a 
guarantee is sought.
    (6) An overview of how the project complies with the eligibility 
requirements in section 1703 of the Act (42 U.S.C. 16513);
    (7) An outline of the potential environmental impacts of the project 
and how these impacts will be mitigated;
    (8) A description of the anticipated air pollution and/or 
anthropogenic greenhouse gas reduction benefits and how these benefits 
will be measured and validated; and
    (9) A list of all of the requirements contained in this part and the 
solicitation and where in the Pre-Application these requirements are 
addressed;
    (d) A financing plan overview describing:
    (1) The amount of equity to be invested and the sources of such 
equity;
    (2) The amount of the total debt obligations to be incurred and the 
funding sources of all such debt if available;
    (3) The amount of the Guaranteed Obligation as a percentage of total 
project debt; and as a percentage of total project cost; and
    (4) A financial model detailing the investments in and the cash 
flows generated and anticipated from the project over the project's 
expected life-cycle, including a complete explanation of the facts, 
assumptions, and methodologies in the financial model;
    (e) An explanation of what estimated impact the loan guarantee will 
have on the interest rate, debt term, and overall financial structure of 
the project;
    (f) Where the Federal Financing Bank is not the lender, a copy of a 
letter from an Eligible Lender or other Holder(s) expressing its 
commitment to provide, or interest in providing, the required debt 
financing necessary to construct and fully commission the project;
    (g) A copy of the equity commitment letter(s) from each of the 
Project Sponsors and a description of the sources for such equity; and
    (h) A commitment to pay the Application fee (First Fee), if invited 
to submit an Application.

[[Page 257]]



Sec. 609.5  Evaluation of Pre-Applications.

    (a) Where Pre-Applications are requested in a solicitation, DOE will 
conduct an initial review of the Pre-Application to determine whether:
    (1) The proposal is for an Eligible Project;
    (2) The submission contains the information required by Sec. 609.4 
of this part; and
    (3) The submission meets all other requirements of the applicable 
solicitation.
    (b) If a Pre-Application fails to meet the requirements of paragraph 
(a) of this section, DOE may deem it non-responsive and eliminate it 
from further review.
    (c) If DOE deems a Pre-Application responsive, DOE will evaluate:
    (1) The commercial viability of the proposed project;
    (2) The technology to be employed in the project;
    (3) The relevant experience of the principal(s); and
    (4) The financial capability of the Project Sponsor (including 
personal and/or business credit information of the principal(s)).
    (d) After the evaluation described in subsection (c) of this 
section, DOE will determine if there is sufficient information in the 
Pre-Application to assess the technical and commercial viability of the 
proposed project and/or the financial capability of the Project Sponsor 
and to assess other aspects of the Pre-Application. DOE may ask for 
additional information from the Project Sponsor during the review 
process and may request one or more meetings with the Project Sponsor.
    (e) After reviewing a Pre-Application and other information acquired 
under paragraph (c) of this section, DOE may provide a written response 
to the Project Sponsor or Applicant either inviting the Applicant to 
submit an Application for a loan guarantee and specifying the amount of 
the Application filing fee (First Fee) or advising the Project Sponsor 
that the project proposal will not receive further consideration. 
Neither the Pre-Application nor any written or other feedback that DOE 
may provide in response to the Pre-Application eliminates the 
requirement for an Application.
    (f) No response by DOE to, or communication by DOE with, a Project 
Sponsor, or an Applicant submitting a Pre-Application or subsequent 
Application shall impose any obligation on DOE to enter into a Loan 
Guarantee Agreement.



Sec. 609.6  Submission of Applications.

    (a) In response to a solicitation or written invitation to submit an 
Application, an Applicant submitting an Application must meet all 
requirements and provide all information specified in the solicitation 
and/or invitation and this part.
    (b) An Application must include, at a minimum, the following 
information and materials:
    (1) A completed Application form signed by an individual with full 
authority to bind the Applicant and the Project Sponsors;
    (2) Payment of the Application filing fee (First Fee) for the Pre-
Application, if any, and Application phase;
    (3) A detailed description of all material amendments, 
modifications, and additions made to the information and documentation 
provided in the Pre-Application, if a Pre-Application was requested in 
the solicitation, including any changes in the proposed project's 
financing structure or other terms;
    (4) A description of how and to what measurable extent the project 
avoids, reduces, or sequesters air pollutants and/or anthropogenic 
emissions of greenhouse gases, including how to measure and verify those 
benefits;
    (5) A description of the nature and scope of the proposed project, 
including:
    (i) Key milestones;
    (ii) Location of the project;
    (iii) Identification and commercial feasibility of the new or 
significantly improved technology(ies) to be employed in the project;
    (iv) How the Applicant intends to employ such technology(ies) in the 
project; and
    (v) How the Applicant intends to assure, to the extent possible, the 
further commercial availability of the technology(ies) in the United 
States;

[[Page 258]]

    (vi) For clarity, with respect to any project in which project 
assets or facilities are jointly owned by the Applicant and one or more 
other persons, each of whom owns an undivided ownership interest in such 
project assets or facilities, the Applicant may submit a project 
proposal with respect to its undivided ownership interest in such 
project assets or facilities.
    (6) A detailed explanation of how the proposed project qualifies as 
an Eligible Project;
    (7) A detailed estimate of the total Project Costs together with a 
description of the methodology and assumptions used;
    (8) A detailed description of the engineering and design 
contractor(s), construction contractor(s), equipment supplier(s), and 
construction schedules for the project, including major activity and 
cost milestones as well as the performance guarantees, performance 
bonds, liquidated damages provisions, and equipment warranties to be 
provided;
    (9) A detailed description of the operations and maintenance 
provider(s), the plant operating plan, estimated staffing requirements, 
parts inventory, major maintenance schedule, estimated annual downtime, 
and performance guarantees and related liquidated damage provisions, if 
any;
    (10) A description of the management plan of operations to be 
employed in carrying out the project, and information concerning the 
management experience of each officer or key person associated with the 
project;
    (11) A detailed description of the project decommissioning, 
deconstruction, and disposal plan, and the anticipated costs associated 
therewith;
    (12) An analysis of the market for any product to be produced by the 
project, including relevant economics justifying the analysis, and 
copies of any contractual agreements for the sale of these products or 
assurance of the revenues to be generated from sale of these products;
    (13) A detailed description of the overall financial plan for the 
proposed project, including all sources and uses of funding, equity and 
debt, and the liability of parties associated with the project over the 
term of the Loan Guarantee Agreement;
    (14) A copy of all material agreements, whether entered into or 
proposed, relevant to the investment, design, engineering, financing, 
construction, startup commissioning, shakedown, operations and 
maintenance of the project;
    (15) A copy of the financial closing checklist for the equity and 
debt to the extent available;
    (16) Applicant's business plan on which the project is based and 
Applicant's financial model presenting project pro forma statements for 
the proposed term of the Guaranteed Obligations including income 
statements, balance sheets, and cash flows. All such information and 
data must include assumptions made in their preparation and the range of 
revenue, operating cost, and credit assumptions considered;
    (17) Financial statements for the past three years, or less if the 
Applicant has been in operation less than three years, that have been 
audited by an independent certified public accountant, including all 
associated notes, as well as interim financial statements and notes for 
the current fiscal year, of Applicant and parties providing Applicant's 
financial backing, together with business and financial interests of 
controlling or commonly controlled organizations or persons, including 
parent, subsidiary and other affiliated corporations or partners of the 
Applicant;
    (18) A copy of all legal opinions, and other material reports, 
analyses, and reviews related to the project;
    (19) An independent engineering report prepared by an engineer with 
experience in the industry and familiarity with similar projects. The 
report should address: the project's siting and permitting, engineering 
and design, contractual requirements, environmental compliance, testing 
and commissioning and operations and maintenance;
    (20) Credit history of the Applicant and, if appropriate, any party 
who owns or controls, by itself and/or through individuals in common or 
affiliated business entities, a five percent or greater interest in the 
project or the Applicant;

[[Page 259]]

    (21) A preliminary credit assessment for the project without a loan 
guarantee from a nationally recognized rating agency for projects where 
the estimated total Project Costs exceed $25 million. For projects where 
the total estimated Project Costs are $25 million or less and where 
conditions justify, in the sole discretion of the Secretary, DOE may 
require such an assessment;
    (22) A list showing the status of and estimated completion date of 
Applicant's required project-related applications or approvals for 
Federal, State, and local permits and authorizations to site, construct, 
and operate the project;
    (23) A report containing an analysis of the potential environmental 
impacts of the project that will enable DOE to assess whether the 
project will comply with all applicable environmental requirements, and 
that will enable DOE to undertake and complete any necessary reviews 
under the National Environmental Policy Act of 1969;
    (24) A listing and description of assets associated, or to be 
associated, with the project and any other asset that will serve as 
collateral for the Guaranteed Obligations, including appropriate data as 
to the value of the assets and the useful life of any physical assets. 
With respect to real property assets listed, an appraisal that is 
consistent with the ``Uniform Standards of Professional Appraisal 
Practice,'' promulgated by the Appraisal Standards Board of the 
Appraisal Foundation, and performed by licensed or certified appraisers, 
is required;
    (25) An analysis demonstrating that, at the time of the Application, 
there is a reasonable prospect that Borrower will be able to repay the 
Guaranteed Obligations (including interest) according to their terms, 
and a complete description of the operational and financial assumptions 
and methodologies on which this demonstration is based;
    (26) Written affirmation from an officer of the Eligible Lender or 
other Holder confirming that it is in good standing with DOE's and other 
Federal agencies' loan guarantee programs;
    (27) A list of all of the requirements contained in this part and 
the solicitation and where in the Application these requirements are 
addressed;
    (28) A statement from the Applicant that it believes that there is 
``reasonable prospect'' that the Guaranteed Obligations will be fully 
paid from project revenue; and
    (29) Any other information requested in the invitation to submit an 
Application or requests from DOE in order to clarify an Application;
    (c) DOE will not consider any Application complete unless the 
Applicant has paid the First Fee and the Application is signed by the 
appropriate entity or entities with the authority to bind the Applicant 
to the commitments and representations made in the Application.



Sec. 609.7  Programmatic, technical and financial evaluation of Applications.

    (a) In reviewing completed Applications, and in prioritizing and 
selecting those to whom a Term Sheet should be offered, DOE will apply 
the criteria set forth in the Act, the applicable solicitation, and this 
part. Applications will be considered in a competitive process, i.e. 
each Application will be evaluated against other Applications responsive 
to the Solicitation. Greater weight will be given to applications that 
rely upon a smaller guarantee percentage, all else being equal. 
Concurrent with its review process, DOE will consult with the Secretary 
of the Treasury regarding the terms and conditions of the potential loan 
guarantee. Applications will be denied if:
    (1) The project will be built or operated outside the United States;
    (2) The project is not ready to be employed commercially in the 
United States, cannot yield a commercially viable product or service in 
the use proposed in the project, does not have the potential to be 
employed in other commercial projects in the United States, and is not 
or will not be available for further commercial use in the United 
States;
    (3) The entity or person issuing the loan or other debt obligations 
subject to the loan guarantee is not an Eligible Lender or other Holder, 
as defined in Sec. 609.11 of this part;
    (4) The project is for demonstration, research, or development.

[[Page 260]]

    (5) The project does not avoid, reduce or sequester air pollutants 
or anthropogenic emissions of greenhouse gases; or
    (6) The Applicant will not provide an equity contribution.
    (b) In evaluating Applications, DOE will consider the following 
factors:
    (1) To what measurable extent the project avoids, reduces, or 
sequesters air pollutants or anthropogenic emissions of greenhouses 
gases;
    (2) To what extent the new or significantly improved technology to 
be employed in the project, as compared to Commercial Technology in 
general use in the United States, is ready to be employed commercially 
in the United States, can be replicated, yields a commercially viable 
project or service in the use proposed in the project, has potential to 
be employed in other commercial projects in the United States, and is or 
will be available for further commercial use in the United States;
    (3) To what extent the new or significantly improved technology used 
in the project constitutes an important improvement in technology, as 
compared to Commercial Technology, used to avoid, reduce or sequester 
air pollutants or anthropogenic emissions of greenhouse gases, and the 
Applicant has a plan to advance or assist in the advancement of that 
technology into the commercial marketplace;
    (4) The extent to which the requested amount of the loan guarantee, 
the requested amount of Guaranteed Obligations and, if applicable, the 
expected amount of any other financing or credit arrangements are 
reasonable relative to the nature and scope of the project;
    (5) The total amount and nature of the Eligible Project Costs and 
the extent to which Project Costs are funded by Guaranteed Obligations;
    (6) The likelihood that the project will be ready for full 
commercial operations in the time frame stated in the Application;
    (7) The amount of equity commitment to the project by the Applicant 
and other principals involved in the project;
    (8) Whether there is sufficient evidence that the Applicant will 
diligently pursue the project, including initiating and completing the 
project in a timely manner;
    (9) Whether and to what extent the Applicant will rely upon other 
Federal and non-Federal governmental assistance such as grants, tax 
credits, or other loan guarantees to support the financing, 
construction, and operation of the project and how such assistance will 
impact the project;
    (10) The feasibility of the project and likelihood that the project 
will produce sufficient revenues to service the project's debt 
obligations over the life of the loan guarantee and assure timely 
repayment of Guaranteed Obligations;
    (11) The levels of safeguards provided to the Federal government in 
the event of default through collateral, warranties, and other assurance 
of repayment described in the Application, including the nature of any 
anticipated intercreditor arrangements;
    (12) The Applicant's capacity and expertise to successfully operate 
the project, based on factors such as financial soundness, management 
organization, and the nature and extent of corporate and personal 
experience;
    (13) The ability of the applicant to ensure that the project will 
comply with all applicable laws and regulations, including all 
applicable environmental statutes and regulations;
    (14) The levels of market, regulatory, legal, financial, 
technological, and other risks associated with the project and their 
appropriateness for a loan guarantee provided by DOE;
    (15) Whether the Application contains sufficient information, 
including a detailed description of the nature and scope of the project 
and the nature, scope, and risk coverage of the loan guarantee sought to 
enable DOE to perform a thorough assessment of the project; and
    (16) Such other criteria that DOE deems relevant in evaluating the 
merits of an Application.
    (c) During the Application review process DOE may raise issues or 
concerns that were not raised during the Pre-Application review process 
where a Pre-Application was requested in the applicable solicitation.
    (d) If DOE determines that a project may be suitable for a loan 
guarantee,

[[Page 261]]

DOE will notify the Applicant and Eligible Lender or other Holder in 
writing and provide them with a Term Sheet. If DOE reviews an 
Application and decides not to proceed further with the issuance of a 
Term Sheet, DOE will inform the Applicant in writing of the reason(s) 
for denial.



Sec. 609.8  Term sheets and conditional commitments.

    (a) DOE, after review and evaluation of the Application, additional 
information requested and received by DOE, potentially including a 
preliminary credit rating or credit assessment, and information obtained 
as the result of meeting with the Applicant and the Eligible Lender or 
other Holder, may offer to an Applicant and the Eligible Lender or other 
Holder detailed terms and conditions that must be met, including terms 
and conditions that must be met by the Applicant and the Eligible Lender 
or other Holder.
    (b) The terms and conditions required by DOE will be expressed in a 
written Term Sheet signed by a Contracting Officer and addressed to the 
Applicant and the Eligible Lender or other Holder, where appropriate. 
The Term Sheet will request that the Project Sponsor and the Eligible 
Lender or other Holder express agreement with the terms and conditions 
contained in the Term Sheet by signing the Term Sheet in the designated 
place. Each person signing the Term Sheet must be a duly authorized 
official or officer of the Applicant and Eligible Lender or other 
Holder. The Term Sheet will include an expiration date on which the 
terms offered will expire unless the Contracting Officer agrees in 
writing to extend the expiration date.
    (c) The Applicant and/or the Eligible Lender or other Holder may 
respond to the Term Sheet offer in writing or may request discussions or 
meetings on the terms and conditions contained in the Term Sheet, 
including requests for clarifications or revisions. When DOE, the 
Applicant, and the Eligible Lender or other Holder agree on all of the 
final terms and conditions and all parties sign the Term Sheet, the Term 
Sheet becomes a Conditional Commitment. When and if all of the terms and 
conditions specified in the Conditional Commitment have been met, DOE 
and the Applicant may enter into a Loan Guarantee Agreement.
    (d) DOE's obligations under each Conditional Commitment are 
conditional upon statutory authority having been provided in advance of 
the execution of the Loan Guarantee Agreement sufficient under FCRA and 
Title XVII for DOE to execute the Loan Guarantee Agreement, and either 
an appropriation has been made or a borrower has paid into the Treasury 
sufficient funds to cover the full Credit Subsidy Cost for the loan 
guarantee that is the subject of the Conditional Commitment.
    (e) The Applicant is required to pay fees to DOE to cover the 
Administrative Cost of Issuing a Loan Guarantee for the period of the 
Term Sheet through the closing of the Loan Guarantee Agreement (Second 
Fee).



Sec. 609.9  Closing on the Loan Guarantee Agreement.

    (a) Subsequent to entering into a Conditional Commitment with an 
Applicant, DOE, after consultation with the Applicant, will set a 
closing date for execution of a Loan Guarantee Agreement.
    (b) By the closing date, the Applicant and the Eligible Lender or 
other Holder must have satisfied all of the detailed terms and 
conditions contained in the Conditional Commitment and other related 
documents and all other contractual, statutory, and regulatory 
requirements. If the Applicant and the Eligible Lender or other Holder 
has not satisfied all such terms and conditions by the closing date, the 
Secretary may, in his/her sole discretion, set a new closing date or 
terminate the Conditional Commitment.
    (c) In order to enter into a Loan Guarantee Agreement at closing:
    (1) DOE must have received authority in an appropriations act for 
the loan guarantee; and
    (2) All other applicable statutory, regulatory, or other 
requirements must be fulfilled.
    (d) Prior to, or on, the closing date, DOE will ensure that:
    (1) Pursuant to section 1702(b) of the Act, DOE has received payment 
of the Credit Subsidy Cost of the loan guarantee, as defined in Sec. 
609.2 of this part

[[Page 262]]

from either (but not from a combination) of the following:
    (i) A Congressional appropriation of funds; or
    (ii) A payment from the Borrower.
    (2) Pursuant to section 1702(h) of the Act, DOE has received from 
the Borrower the First and Second Fees and, if applicable, the Third 
fee, or portions thereof, for the Administrative Cost of Issuing the 
Loan Guarantee, as specified in the Loan Guarantee Agreement;
    (3) OMB has reviewed and approved DOE's calculation of the Credit 
Subsidy Cost of the loan guarantee;
    (4) The Department of the Treasury has been consulted as to the 
terms and conditions of the Loan Guarantee Agreement;
    (5) The Loan Guarantee Agreement and related documents contain all 
terms and conditions DOE deems reasonable and necessary to protect the 
interest of the United States; and
    (6) All conditions precedent specified in the Conditional Commitment 
are either satisfied or waived by a Contracting Officer and all other 
applicable contractual, statutory, and regulatory requirements are 
satisfied.
    (e) Not later than the period approved in writing by the Contracting 
Officer, which may not be less than 30 days prior to the closing date, 
the Applicant must provide in writing updated project financing 
information if the terms and conditions of the financing arrangements 
changed between execution of the Conditional Commitment and that date. 
The Conditional Commitment must be updated to reflect the revised terms 
and conditions.
    (f) Where the total Project Costs for an Eligible Project are 
projected to exceed $25 million, the Applicant must provide a credit 
rating from a nationally recognized rating agency reflecting the revised 
Conditional Commitment for the project without a Federal guarantee. 
Where total Project Costs are projected to be $25 million or less than 
$25 million, the Secretary may, on a case-by-case basis, require a 
credit rating. If a rating is required, an updated rating must be 
provided to the Secretary not later than 30 days prior to closing.
    (g) Changes in the terms and conditions of the financing 
arrangements will affect the Credit Subsidy Cost for the Loan Guarantee 
Agreement. DOE may postpone the expected closing date pursuant to any 
changes submitted under paragraph (e) and (f) of this section. In 
addition, DOE may choose to terminate the Conditional Commitment.



Sec. 609.10  Loan Guarantee Agreement.

    (a) Only a Loan Guarantee Agreement executed by a duly authorized 
DOE Contracting Officer can contractually obligate DOE to guarantee 
loans or other debt obligations.
    (b) DOE is not bound by oral representations made during the Pre-
Application stage, if Pre-Applications were solicited, or Application 
stage, or during any negotiation process.
    (c) Except if explicitly authorized by an Act of Congress, no funds 
obtained from the Federal Government, or from a loan or other instrument 
guaranteed by the Federal Government, may be used to pay for Credit 
Subsidy Costs, administrative fees, or other fees charged by or paid to 
DOE relating to the Title XVII program or any loan guarantee there 
under.
    (d) Prior to the execution by DOE of a Loan Guarantee Agreement, DOE 
must ensure that the following requirements and conditions are 
satisfied:
    (1) The project qualifies as an Eligible Project under the Act and 
is not a research, development, or demonstration project or a project 
that employs Commercial Technologies in service in the United States;
    (2) The project will be constructed and operated in the United 
States, the employment of the new or significantly improved technology 
in the project has the potential to be replicated in other commercial 
projects in the United States, and this technology is or is likely to be 
available in the United States for further commercial application;
    (3) The face value of the debt guaranteed by DOE is limited to no 
more than 80 percent of total Project Costs;
    (4)(i) Where DOE guarantees 100 percent of the Guaranteed 
Obligation, the loan shall be funded by the Federal Financing Bank;

[[Page 263]]

    (ii) Where DOE guarantees more than 90 percent of the Guaranteed 
Obligation, the guaranteed portion cannot be separated from or 
``stripped'' from the non-guaranteed portion of the Guaranteed 
Obligation if the loan is participated, syndicated or otherwise resold 
in the secondary market;
    (iii) Where DOE guarantees 90 percent or less of the Guaranteed 
Obligation, the guaranteed portion may be separated from or ``stripped'' 
from the non-guaranteed portion of the Guaranteed Obligation, if the 
loan is participated, syndicated or otherwise resold in the secondary 
debt market;
    (5) The Borrower and other principals involved in the project have 
made or will make a significant equity investment in the project;
    (6) The Borrower is obligated to make full repayment of the 
principal and interest on the Guaranteed Obligation and other project 
debt over a period of up to the lesser of 30 years or 90 percent of the 
projected useful life of the project's major physical assets, as 
calculated in accordance with generally accepted accounting principles 
and practices. The non-guaranteed portion (if any) of any Guaranteed 
Obligation must be repaid on a pro-rata basis, and may not be repaid on 
a shorter or faster amortization schedule than the guaranteed portion. 
Any project-related financing or credit arrangement (other than the 
Guaranteed Obligation) may have a shorter or faster amortization 
schedule than the Guaranteed Obligation if DOE determines that the 
resulting financing structure of the project--
    (i) Allocates to DOE a reasonably proportionate share of the default 
risk, in light of--
    (A) DOE's share of the total project financing,
    (B) Risk allocation among the credit providers, and
    (C) Internal and external credit enhancements; and
    (ii) Is appropriate to assure reasonable prospect of repayment of 
the principal of and interest on the DOE Guaranteed Obligation and to 
protect the interests of the United States in the case of default;
    (7) The loan guarantee does not finance, either directly or 
indirectly, tax-exempt debt obligations, consistent with the 
requirements of section 149(b) of the Internal Revenue Code;
    (8) The amount of the loan guaranteed, when combined with other 
funds committed to the project, will be sufficient to carry out the 
project, including adequate contingency funds;
    (9) There is a reasonable prospect of repayment by Borrower of the 
principal of and interest on the Guaranteed Obligations and other 
project debt;
    (10) The Borrower has pledged project assets and other collateral or 
surety, including non project-related assets, determined by DOE to be 
necessary to secure the repayment of the Guaranteed Obligations;
    (11) The Loan Guarantee Agreement and related documents include 
detailed terms and conditions necessary and appropriate to protect the 
interest of the United States in the case of default, including ensuring 
availability of all the intellectual property rights, technical data 
including software, and technology necessary for any person or entity 
selected, including DOE, to complete, operate, convey, and dispose of 
the defaulted project;
    (12) The interest rate on any Guaranteed Obligation is determined by 
DOE, after consultation with the Treasury Department, to be reasonable, 
taking into account the range of interest rates prevailing in the 
private sector for similar obligations of comparable risk guaranteed by 
the Federal government;
    (13) Any Guaranteed Obligation is not subordinate to any loan or 
other debt obligation;
    (14) There is satisfactory evidence that Borrower and Eligible 
Lenders or other Holders are willing, competent, and capable of 
performing the terms and conditions of the Guaranteed Obligations and 
other debt obligation and the Loan Guarantee Agreement, and will 
diligently pursue the project;
    (15) The Borrower has made the initial (or total) payment of fees 
for the Administrative Cost of Issuing a Loan Guarantee for the 
construction and operational phases of the project (Third Fee), as 
specified in the Conditional Commitment;
    (16) The Eligible Lender, other Holder or servicer has taken and is 
obligated

[[Page 264]]

to continue to take those actions necessary to perfect and maintain 
liens on assets which are pledged as collateral for the Guaranteed 
Obligation;
    (17) If Borrower is to make payment in full for the Credit Subsidy 
Cost of the loan guarantee pursuant to section 1702(b)(2) of the Act, 
such payment must be received by DOE prior to, or at the time of, 
closing;
    (18) DOE or its representatives have access to the project site at 
all reasonable times in order to monitor the performance of the project;
    (19) DOE, the Eligible Lender, or other Holder and Borrower have 
reached an agreement as to the information that will be made available 
to DOE and the information that will be made publicly available;
    (20) The prospective Borrower has filed applications for or obtained 
any required regulatory approvals for the project and is in compliance, 
or promptly will be in compliance, where appropriate, with all Federal, 
State, and local regulatory requirements;
    (21) The Borrower has no delinquent Federal debt, including tax 
liabilities, unless the delinquency has been resolved with the 
appropriate Federal agency in accordance with the standards of the Debt 
Collection Improvement Act of 1996;
    (22) The Loan Guarantee Agreement and related agreements contain 
such other terms and conditions as DOE deems reasonable and necessary to 
protect the interests of the United States, including without limitation 
provisions for (i) such collateral and other credit support for the 
Guaranteed Obligation, and (ii) such collateral sharing, priorities 
(subject always to Section 1702(d)(3) of Title XVII) and voting rights 
among creditors and other intercreditor arrangements as, in each case, 
DOE deems reasonable and necessary to protect the interests of the 
United States; and
    (23)(i) The Lender is an Eligible Lender, as defined in Sec. 609.2 
of this part, and meets DOE's lender eligibility and performance 
requirement contained in Sec. Sec. 609.11 (a) and (b) of this part; and
    (ii) The servicer meets the servicing performance requirements of 
Sec. 609.11(c) of this part.
    (e) The Loan Guarantee Agreement must provide that, in the event of 
a default by the Borrower:
    (1) Interest accrues on the Guaranteed Obligations at the rate 
stated in the Loan Guarantee Agreement or Loan Agreement, until DOE 
makes full payment of the defaulted Guaranteed Obligations and, except 
when debt is funded through the Federal Financing Bank, DOE is not 
required to pay any premium, default penalties, or prepayment penalties;
    (2) Upon payment of the Guaranteed Obligations by DOE, DOE is 
subrogated to the rights of the Holders of the debt, including all 
related liens, security, and collateral rights;
    (3) The Eligible Lender or other servicer acting on DOE's behalf is 
obligated to take those actions necessary to perfect and maintain liens 
on assets which are pledged as collateral for the Guaranteed 
Obligations;
    (4) The holder of pledged collateral is obligated to take such 
actions as DOE may reasonably require to provide for the care, 
preservation, protection, and maintenance of such collateral so as to 
enable the United States to achieve maximum recovery upon default by the 
Borrower on the Guaranteed Obligations;
    (f) The Loan Guarantee Agreement must contain audit provisions which 
provide, in substance, as follows:
    (1) The Eligible Lender or other Holder or other party servicing the 
Guaranteed Obligations, as applicable, and the Borrower, must keep such 
records concerning the project as are necessary to facilitate an 
effective and accurate audit and performance evaluation of the project 
as required in Sec. 609.17 of this part; and
    (2) DOE and the Comptroller General, or their duly authorized 
representatives, must have access, for the purpose of audit and 
examination, to any pertinent books, documents, papers, and records of 
the Borrower, Eligible Lender or other Holder, or other party servicing 
the Guaranteed Obligations, as applicable. Examination of records may be 
made during the regular business hours of the Borrower, Eligible Lender 
or other Holder, or other party servicing the Guaranteed Obligations,

[[Page 265]]

or at any other time mutually convenient as required in Sec. 609.17 of 
this part.
    (g)(1) An Eligible Lender or other Holder may sell, assign or 
transfer a Guaranteed Obligation to another Eligible Lender that meets 
the requirements of Sec. 609.11 of this part. Such Eligible Lender to 
which a Guaranteed Obligation is assigned or transferred, is required to 
fulfill all servicing, monitoring, and reporting requirements contained 
in the Loan Guarantee Agreement and these regulations if the 
transferring Eligible Lender was performing these functions and transfer 
such functions to the new Eligible Lender. Any assignment or transfer, 
however, of the servicing, monitoring, and reporting functions must be 
approved by DOE in writing in advance of such assignment.
    (2) The Secretary, or the Secretary's designee or contractual agent, 
for the purpose of identifying Holders with the right to receive payment 
under the guarantees shall include in the Loan Guarantee Agreement or 
related documents a procedure for tracking and identifying Holders of 
Guarantee Obligations. These duties usually will be performed by the 
servicer. Any contractual agent approved by the Secretary to perform 
this function cannot transfer or assign this responsibility without the 
prior written consent of the Secretary.



Sec. 609.11  Lender eligibility and servicing requirements.

    (a) An Eligible Lender shall meet the following requirements:
    (1) Not be debarred or suspended from participation in a Federal 
government contract (under 48 CFR part 9.4) or participation in a non-
procurement activity (under a set of uniform regulations implemented for 
numerous agencies, such as DOE, at 2 CFR part 180);
    (2) Not be delinquent on any Federal debt or loan;
    (3) Be legally authorized to enter into loan guarantee transactions 
authorized by the Act and these regulations and is in good standing with 
DOE and other Federal agency loan guarantee programs;
    (4) Be able to demonstrate, or has access to, experience in 
originating and servicing loans for commercial projects similar in size 
and scope to the project under consideration; and
    (5) Be able to demonstrate experience or capability as the lead 
lender or underwriter by presenting evidence of its participation in 
large commercial projects or energy-related projects or other relevant 
experience; or
    (6) Be the Federal Financing Bank.
    (b) When performing its duties to review and evaluate a proposed 
Eligible Project prior to the submission of a Pre-Application or 
Application, as appropriate, by the Project Sponsor through the 
execution of a Loan Guarantee Agreement, the Eligible Lender or DOE if 
loans are funded by the Federal Financing Bank, shall exercise the level 
of care and diligence that a reasonable and prudent lender would 
exercise when reviewing, evaluating and disbursing a loan made by it 
without a Federal guarantee.
    (c) The servicing duties shall be performed by the Eligible Lender, 
DOE or other servicer if approved by the Secretary. When performing the 
servicing duties the Eligible Lender, DOE or other servicer shall 
exercise the level of care and diligence that a reasonable and prudent 
lender would exercise when servicing a loan made without a Federal 
guarantee, including:
    (1) During the construction period, enforcing all of the conditions 
precedent to all loan disbursements, as provided in the Loan Guarantee 
Agreement, Loan Agreement and related documents;
    (2) During the operational phase, monitoring and servicing the Debt 
Obligations and collection of the outstanding principal and accrued 
interest as well as ensuring that the collateral package securing the 
Guaranteed Obligations remains uncompromised; and
    (3) As specified by DOE, providing annual or more frequent financial 
and other reports on the status and condition of the Guaranteed 
Obligations and the Eligible Project, and promptly notifying DOE if it 
becomes aware of any problems or irregularities concerning the Eligible 
Project or the ability of the Borrower to make payment on the Guaranteed 
Obligations or other debt obligations.
    (d) With regard to partial guarantees, even though DOE may in part 
rely on

[[Page 266]]

the Eligible Lender or other servicer to service and monitor the 
Guaranteed Obligation, DOE will also conduct its own independent 
monitoring and review of the Eligible Project.



Sec. 609.12  Project Costs.

    (a) Before entering into a Loan Guarantee Agreement, DOE shall 
determine the estimated Project Costs for the project that is the 
subject of the agreement. To assist the Department in making that 
determination, the Applicant must estimate, calculate and record all 
such costs incurred in the design, engineering, financing, construction, 
startup, commissioning and shakedown of the project in accordance with 
generally accepted accounting principles and practices. Among other 
things, the Applicant must calculate the sum of necessary, reasonable 
and customary costs that it has paid and expects to pay, which are 
directly related to the project, including costs for escalation and 
contingencies, to estimate the total Project Costs.
    (b) Project Costs include:
    (1) Costs of acquisition, lease, or rental of real property, 
including engineering fees, surveys, title insurance, recording fees, 
and legal fees incurred in connection with land acquisition, lease or 
rental, site improvements, site restoration, access roads, and fencing;
    (2) Costs of engineering, architectural, legal and bond fees, and 
insurance paid in connection with construction of the facility; and 
materials, labor, services, travel and transportation for facility 
design, construction, startup, commissioning and shakedown;
    (3) Costs of equipment purchases;
    (4) Costs to provide equipment, facilities, and services related to 
safety and environmental protection;
    (5) Financial and legal services costs, including other professional 
services and fees necessary to obtain required licenses and permits and 
to prepare environmental reports and data;
    (6) The cost of issuing project debt, such as fees, transaction and 
legal costs and other normal charges imposed by Eligible Lenders and 
other Holders;
    (7) Costs of necessary and appropriate insurance and bonds of all 
types;
    (8) Costs of design, engineering, startup, commissioning and 
shakedown;
    (9) Costs of obtaining licenses to intellectual property necessary 
to design, construct, and operate the project;
    (10) A reasonable contingency reserve for cost overruns during 
construction; and
    (11) Capitalized interest necessary to meet market requirements, 
reasonably required reserve funds and other carrying costs during 
construction; and
    (12) Other necessary and reasonable costs.
    (c) Project Costs do not include:
    (1) Fees and commissions charged to Borrower, including finder's 
fees, for obtaining Federal or other funds;
    (2) Parent corporation or other affiliated entity's general and 
administrative expenses, and non-project related parent corporation or 
affiliated entity assessments, including organizational expenses;
    (3) Goodwill, franchise, trade, or brand name costs;
    (4) Dividends and profit sharing to stockholders, employees, and 
officers;
    (5) Research, development, and demonstration costs of readying the 
innovative energy or environmental technology for employment in a 
commercial project;
    (6) Costs that are excessive or are not directly required to carry 
out the project, as determined by DOE, including but not limited to the 
cost of hedging instruments;
    (7) Expenses incurred after startup, commissioning, and shakedown 
before the facility has been placed in service;
    (8) Borrower-paid Credit Subsidy Costs and Administrative Costs of 
Issuing a Loan Guarantee; and
    (9) Operating costs.



Sec. 609.13  Principal and interest assistance contract.

    With respect to the guaranteed portion of any Guaranteed Obligation, 
and subject to the availability of appropriations, DOE may enter into a 
contract to pay Holders, for and on behalf of Borrower, from funds 
appropriated for that purpose, the principal and interest charges that 
become due and payable on the unpaid balance of the

[[Page 267]]

guaranteed portion of the Guaranteed Obligation, if DOE finds that:
    (a) The Borrower:
    (1) Is unable to make the payments and is not in default; and
    (2) Will, and is financially able to, continue to make the scheduled 
payments on the remaining portion of the principal and interest due 
under the non-guaranteed portion of the debt obligation, if any, and 
other debt obligations of the project, or an agreement, approved by DOE, 
has otherwise been reached in order to avoid a payment default on non-
guaranteed debt.
    (b) It is in the public interest to permit Borrower to continue to 
pursue the purposes of the project;
    (c) In paying the principal and interest, the Federal government 
expects a probable net benefit to the Government will be greater than 
that which would result in the event of a default;
    (d) The payment authorized is no greater than the amount of 
principal and interest that Borrower is obligated to pay under the terms 
of the Loan Guarantee Agreement; and
    (e) Borrower agrees to reimburse DOE for the payment (including 
interest) on terms and conditions that are satisfactory to DOE and 
executes all written contracts required by DOE for such purpose.



Sec. 609.14  Full faith and credit and incontestability.

    The full faith and credit of the United States is pledged to the 
payment of all Guaranteed Obligations issued in accordance with this 
part with respect to principal and interest. Such guarantee shall be 
conclusive evidence that it has been properly obtained; that the 
underlying loan qualified for such guarantee; and that, but for fraud or 
material misrepresentation by the Holder, such guarantee will be 
presumed to be valid, legal, and enforceable.



Sec. 609.15  Default, demand, payment, and collateral liquidation.

    (a) In the event that the Borrower has defaulted in the making of 
required payments of principal or interest on any portion of a 
Guaranteed Obligation, and such default has not been cured within the 
period of grace provided in the Loan Guarantee Agreement and/or the Loan 
Agreement, the Eligible Lender or other Holder, or nominee or trustee 
empowered to act for the Eligible Lender or other Holder (referred to in 
this section collectively as ``Holder''), may make written demand upon 
the Secretary for payment pursuant to the provisions of the Loan 
Guarantee Agreement.
    (b) In the event that the Borrower is in default as a result of a 
breach of one or more of the terms and conditions of the Loan Guarantee 
Agreement, note, mortgage, Loan Agreement, or other contractual 
obligations related to the transaction, other than the Borrower's 
obligation to pay principal or interest on the Guaranteed Obligation, as 
provided in paragraph (a) of this section, the Holder will not be 
entitled to make demand for payment pursuant to the Loan Guarantee 
Agreement, unless the Secretary agrees in writing that such default has 
materially affected the rights of the parties, and finds that the Holder 
should be entitled to receive payment pursuant to the Loan Guarantee 
Agreement.
    (c) In the event that the Borrower has defaulted as described in 
paragraph (a) of this section and such default is not cured during the 
grace period provided in the Loan Guarantee Agreement, the Secretary 
shall notify the U.S. Attorney General and, subject to the terms of any 
applicable Intercreditor Agreement, may cause the principal amount of 
all Guaranteed Obligations, together with accrued interest thereon, and 
all amounts owed to the United States by Borrower pursuant to the Loan 
Guarantee Agreement, to become immediately due and payable by giving the 
Borrower written notice to such effect (without the need for consent or 
other action on the part of the Holders of the Guaranteed Obligations) 
and may exercise any other remedies available under the applicable 
agreements. In the event the Borrower is in default as described in 
paragraph (b) of this section, where the Secretary determines in writing 
that such a default has materially affected the rights of the parties, 
the Borrower shall be given the period of grace provided in the Loan 
Guarantee Agreement to cure such default. If the default is not cured

[[Page 268]]

during the period of grace, the Secretary may, subject to the terms of 
any applicable Intercreditor Agreement, cause the principal amount of 
all Guaranteed Obligations, together with accrued interest thereon, and 
all amounts owed to the United States by Borrower pursuant to the Loan 
Guarantee Agreement, to become immediately due and payable by giving the 
Borrower written notice to such effect (without any need for consent or 
other action on the part of the Holders of the Guaranteed Obligations) 
and may exercise any other remedies available under the applicable 
agreements.
    (d) No provision of this regulation shall be construed to preclude 
forbearance by any Holder with the consent of the Secretary for the 
benefit of the Borrower.
    (e) Upon the making of demand for payment as provided in paragraph 
(a) or (b) of this section, the Holder shall provide, in conjunction 
with such demand or immediately thereafter, at the request of the 
Secretary, the supporting documentation specified in the Loan Guarantee 
Agreement and any other supporting documentation as may reasonably be 
required to justify such demand.
    (f) Payment as required by the Loan Guarantee Agreement of the 
Guaranteed Obligation shall be made 60 days after receipt by the 
Secretary of written demand for payment, provided that the demand 
complies with the terms of the Loan Guarantee Agreement. The Loan 
Guarantee Agreement shall provide that interest shall accrue to the 
Holder at the rate stated in the Loan Guarantee Agreement until the 
Guaranteed Obligation has been fully paid by the Federal government.
    (g) The Loan Guarantee Agreement shall provide that, upon payment of 
the Guaranteed Obligations, the Secretary shall be subrogated to the 
rights of the Holders. The Holder shall transfer and assign to the 
Secretary all rights held by the Holder of the Guaranteed Obligation. 
Such assignment shall include all related liens, security, and 
collateral rights to the extent held by the Holder.
    (h) Where the Loan Guarantee Agreement or any applicable 
Intercreditor Agreement so provides, the Eligible Lender or other 
Holder, or other agent or servicer, as appropriate, and the Secretary 
may jointly agree to a work-out strategy and/or a plan of liquidation of 
the assets pledged to secure the Guaranteed Obligation and other 
applicable debt.
    (i) Where payment of the Guaranteed Obligation has been made (or at 
any such earlier time as may be permitted by applicable agreements), the 
Secretary, acting through the U.S. Attorney General, in accordance with 
the rights received through subrogation or other applicable agreements, 
subject to any applicable Intercreditor Agreement, may seek to foreclose 
on the collateral assets and/or take such other legal action as 
necessary for the protection of the Government.
    (j) If the Secretary (or an agent acting for the benefit of the 
Secretary) is awarded title to collateral assets pursuant to a 
foreclosure proceeding, the Secretary may take action to complete, 
maintain, operate, or lease such assets, or otherwise dispose of any 
such assets or take any other necessary action which the Secretary deems 
appropriate (and consistent with any applicable Intercreditor 
Agreement), in order that the original goals and objectives of the 
project will, to the extent possible, be realized.
    (k) In addition to foreclosure and sale of collateral pursuant 
thereto, the U.S. Attorney General shall take appropriate action in 
accordance with rights contained in the Loan Guarantee Agreement and any 
applicable Intercreditor Agreement to recover costs incurred by, and 
other amounts owed to, the Government as a result of the defaulted loan 
or other defaulted obligation. Any recovery so received by the U.S. 
Attorney General on behalf of the Government shall be applied in the 
following manner: First to the expenses incurred by the U.S. Attorney 
General, DOE and any agent acting for the benefit of DOE in effecting 
such recovery; second, to reimbursement of any amounts paid by DOE, and 
to pay any other amounts owed to DOE, as a result of the defaulted 
obligation; third, to any amounts owed to DOE under related principal 
and interest assistance contracts; and fourth, to any other lawful 
claims held by the Government

[[Page 269]]

on such process. Any sums remaining after full payment of the foregoing 
shall be available for the benefit of other parties lawfully entitled to 
claim them.
    (l) If there was a partial guarantee by DOE of the Guaranteed 
Obligation or if any other creditors are secured by a lien on collateral 
pledged to secure the Guaranteed Obligation, the proceeds received by 
the collateral agent or other responsible party as a result of any 
liquidation or sale of, collection from or other realization on any such 
collateral may, if so agreed in advance or unless otherwise agreed in 
the applicable agreements, be applied as follows (with any money 
distributed to the Federal Government to be further distributed 
according to Sec. 609.15(k)):
    (1) First, to the payment of reasonable and customary fees and 
expenses incurred in the liquidation or sale, collection or other 
realization (including without limitation any fees and expenses that the 
Attorney General of the United States is lawfully entitled to claim in 
connection with such action);
    (2) Second, distributed among the Holders of the Guaranteed 
Obligation (including DOE, as subrogee) and the other creditors entitled 
to share in such proceeds on no greater than a pro rata share basis; and
    (3) Third, as otherwise provided in the applicable agreement or 
agreements.
    (m) No action taken by the Eligible Lender or other Holder or other 
agent or servicer in respect of any pledged assets will affect the 
rights of any party, including the Secretary, having an interest in the 
loan or other debt obligations, to pursue, jointly or severally, to the 
extent provided in the Loan Guarantee Agreement or other applicable 
agreement, legal action against the Borrower or other liable parties, 
for any deficiencies owing on the balance of the Guaranteed Obligations 
or other debt obligations after application of the proceeds received 
upon liquidation.
    (n) In the event that the Secretary considers it necessary or 
desirable to protect or further the interest of the United States in 
connection with the liquidation or sale of, collection from or other 
realization on the collateral or recovery of deficiencies due under the 
loan, the Secretary will take such action as may be appropriate under 
the circumstances.
    (o) Nothing in this part precludes the Secretary from purchasing any 
Holder's or other person's interest in the project upon liquidation or 
sale of, collection from or other realization on the collateral.



Sec. 609.16  Perfection of liens and preservation of collateral.

    (a) The Loan Guarantee Agreement and other documents related thereto 
shall provide that:
    (1) The Eligible Lender, or DOE in conjunction with the Federal 
Financing Bank where the loan is funded by the Federal Financing Bank, 
or other Holder or other agent or servicer will take those actions 
necessary or appropriate to perfect and maintain liens, as applicable, 
on assets which are pledged as collateral for the Guaranteed Obligation; 
and
    (2) Upon default by the Borrower, the holder of pledged collateral 
shall take such actions as the Secretary (subject to any applicable 
Intercreditor Agreement) may reasonably require to provide for the care, 
preservation, protection, and maintenance of such collateral so as to 
enable the United States to achieve maximum recovery from the pledged 
assets. The Secretary shall reimburse the holder of collateral for 
reasonable and appropriate expenses incurred in taking actions required 
by the Secretary (unless otherwise provided in applicable agreements). 
Except as provided in Sec. 609.15, no party may waive or relinquish, 
without the consent of the Secretary, any collateral securing the 
Guaranteed Obligation to which the United States would be subrogated 
upon payment under the Loan Guarantee Agreement.
    (b) In the event of a default, the Secretary may enter into such 
contracts as the Secretary (subject to any applicable Intercreditor 
Agreement) determines are required or appropriate to care for, preserve, 
protect or maintain the collateral. The cost of such contracts may be 
charged to the Borrower.

[[Page 270]]



Sec. 609.17  Audit and access to records.

    (a) The Loan Guarantee Agreement and related documents shall provide 
that:
    (1) The Eligible Lender, or DOE in conjunction with the Federal 
Financing Bank where loans are funded by the Federal Financing Bank or 
other Holder or other party servicing the Guaranteed Obligations, as 
applicable, and the Borrower, shall keep such records concerning the 
project as is necessary, including the Pre-Application, Application, 
Term Sheet, Conditional Commitment, Loan Guarantee Agreement, Credit 
Agreement, mortgage, note, disbursement requests and supporting 
documentation, financial statements, audit reports of independent 
accounting firms, lists of all project assets and non-project assets 
pledged as security for the Guaranteed Obligations, all off-take and 
other revenue producing agreements, documentation for all project 
indebtedness, income tax returns, technology agreements, documentation 
for all permits and regulatory approvals and all other documents and 
records relating to the Eligible Project, as determined by the 
Secretary, to facilitate an effective audit and performance evaluation 
of the project; and
    (2) The Secretary and the Comptroller General, or their duly 
authorized representatives, shall have access, for the purpose of audit 
and examination, to any pertinent books, documents, papers and records 
of the Borrower, Eligible Lender or DOE or other Holder or other party 
servicing the Guaranteed Obligation, as applicable. Such inspection may 
be made during regular office hours of the Borrower, Eligible Lender or 
DOE or other Holder, or other party servicing the Eligible Project and 
the Guaranteed Obligations, as applicable, or at any other time mutually 
convenient.
    (b) The Secretary may from time to time audit any or all items of 
costs included as Project Costs in statements or certificates submitted 
to the Secretary or the servicer or otherwise, and may exclude or reduce 
the amount of any item which the Secretary determines to be unnecessary 
or excessive, or otherwise not to be an item of Project Costs. The 
Borrower will make available to the Secretary all books and records and 
other data available to the Borrower in order to permit the Secretary to 
carry out such audits. The Borrower will represent that it has within 
its rights access to all financial and operational records and data 
relating to Project Costs, and agrees that it will, upon request by the 
Secretary, exercise such rights in order to make such financial and 
operational records and data available to the Secretary. In exercising 
its rights hereunder, the Secretary may utilize employees of other 
Federal agencies, independent accountants, or other persons.



Sec. 609.18  Deviations.

    To the extent that such requirements are not specified by the Act or 
other applicable statutes, DOE may authorize deviations on an individual 
request basis from the requirements of this part upon a finding that 
such deviation is essential to program objectives and the special 
circumstances stated in the request make such deviation clearly in the 
best interest of the Government. DOE will consult with OMB and the 
Secretary of the Treasury before DOE grants any deviation that would 
constitute a substantial change in the financial terms of the Loan 
Guarantee Agreement and related documents. Any deviation, however, that 
was not captured in the Credit Subsidy Cost will require either 
additional fees or discretionary appropriations. A recommendation for 
any deviation shall be submitted in writing to DOE. Such recommendation 
must include a supporting statement, which indicates briefly the nature 
of the deviation requested and the reasons in support thereof.



PART 611_ADVANCED TECHNOLOGY VEHICLES MANUFACTURER ASSISTANCE PROGRAM--Table of Contents



                            Subpart A_General

Sec.
611.1 Purpose.
611.2 Definitions.
611.3 Advanced technology vehicle.

                      Subpart B_Direct Loan Program

611.100 Eligible applicant.

[[Page 271]]

611.101 Application.
611.102 Eligible project costs.
611.103 Application evaluation.
611.104 [Reserved]
611.105 Agreement.
611.106 Environmental requirements.
611.107 Loan terms.
611.108 Perfection of liens and preservation of collateral.
611.109 Audit and access to records.
611.110 Assignment or transfer of loans.
611.111 Default, demand, payment, and collateral liquidation.
611.112 Termination of obligations.

                    Subpart C_Facility Funding Awards

611.200 Purpose and scope.
611.201 Applicability.
611.202 Advanced Technology Vehicle Manufacturing Facility Award 
          Program.
611.203 Eligibility.
611.204 Awards.
611.205 Period of award availability.
611.206 Existing facilities.
611.207 Small automobile and component manufacturers.
611.208-611.209 [Reserved]

    Authority: Pub. L. 110-140 (42 U.S.C. 17013), Pub. L. 110-329.

    Source: 73 FR 66731, Nov. 12, 2008, unless otherwise noted.



                            Subpart A_General



Sec. 611.1  Purpose.

    This part is issued by the Department of Energy (DOE) pursuant to 
section 136 of the Energy Independence and Security Act of 2007, Public 
Law 110-140, as amended by section 129 of Public Law 110-329. 
Specifically, section 136(e) directs DOE to promulgate an interim final 
rule establishing regulations that specify eligibility criteria and that 
contain other provisions that the Secretary deems necessary to 
administer this section and any loans made by the Secretary pursuant to 
this section.



Sec. 611.2  Definitions.

    The definitions contained in this section apply to provisions 
contained in both subpart A and subpart B.
    Adjusted average fuel economy means a harmonic production weighted 
average of the combined fuel economy of all vehicles in a fleet, which 
were subject to CAFE.
    Advanced technology vehicle means a passenger automobile or light 
truck that meets--
    (1) The Bin 5 Tier II emission standard established in regulations 
issued by the Administrator of the Environmental Protection Agency under 
section 202(i) of the Clean Air Act (42 U.S.C. 7521(i)), as of the date 
of application, or a lower-numbered Bin emission standard;
    (2) Any new emission standard in effect for fine particulate matter 
prescribed by the Administrator under that Act (42 U.S.C. 7401 et seq.), 
as of the date of application; and
    (3) At least 125 percent of the harmonic production weighted average 
combined fuel economy, for vehicles with substantially similar 
attributes in model year 2005.
    Agreement means the contractual loan arrangement between DOE and a 
Borrower for a loan made by and through the Federal Financing Bank with 
the full faith and credit of the United States government on the 
principal and interest.
    Applicant means a party that submits a substantially complete 
application pursuant to this part.
    Application means the compilation of the materials required by this 
part to be submitted to DOE by an Applicant. One Application can include 
requests for one or more loans and one or more projects. However, an 
Application covering more than one project must contain complete and 
separable information with respect to each project.
    Automobile is used as that term is defined in 49 CFR part 523.
    Borrower means an Applicant that receives a loan under this Program.
    CAFE means the Corporate Average Fuel Economy program of the Energy 
Policy and Conservation Act, 49 U.S.C. 32901 et seq.
    Combined fuel economy means the combined city/highway miles per 
gallon values, as are reported in accordance with section 32904 of title 
49, United States Code. If CAFE compliance data is not available, the 
combined average fuel economy of a vehicle must be demonstrated through 
the use of a peer-reviewed model.
    DOE or Department means the United States Department of Energy.

[[Page 272]]

    Eligible Facility means a manufacturing facility in the United 
States that produces qualifying advanced technology vehicles, or 
qualifying components.
    Eligible Project means:
    (1) Reequipping, expanding, or establishing a manufacturing facility 
in the United States to produce qualifying advanced technology vehicles, 
or qualifying components; or
    (2) Engineering integration performed in the United States for 
qualifying advanced technology vehicles and qualifying components.
    Engineering integration costs are the costs of engineering tasks 
relating to--
    (1) Incorporating qualifying components into the design of advanced 
technology vehicles; and
    (2) Designing tooling and equipment and developing manufacturing 
processes and material suppliers for production facilities that produce 
qualifying components or advanced technology vehicles.
    Equivalent vehicle means a light-duty vehicle of the same vehicle 
classification as specified in 10 CFR part 523.
    Financially viable means a reasonable prospect that the Applicant 
will be able to make payments of principal and interest on the loan as 
and when such payments become due under the terms of the loan documents, 
and that the applicant has a net present value that is positive, taking 
all costs, existing and future, into account.
    Grantee means an entity awarded a grant made pursuant to section 136 
and this Part.
    Light-duty vehicle means passenger automobiles and light trucks.
    Light truck is used as that term is defined in 49 CFR part 523.
    Loan Documents mean the Agreement and all other instruments, and all 
documentation among DOE, the borrower, and the Federal Financing Bank 
evidencing the making, disbursing, securing, collecting, or otherwise 
administering the loan [references to loan documents also include 
comparable agreements, instruments, and documentation for other 
financial obligations for which a loan is requested or issued].
    Model year is defined as that term is defined in 49 U.S.C. 32901.
    Passenger automobile is used as that term is defined in 49 CFR part 
523.
    Qualifying components means components that the DOE determines are
    (1) Designed for advanced technology vehicles; and
    (2) Installed for the purpose of meeting the performance 
requirements of advanced technology vehicles.
    Secretary means the United States Secretary of Energy.
    Security means all property, real or personal, tangible or 
intangible, required by the provisions of the Loan Documents to secure 
repayment of any indebtedness of the Borrower under the Loan Documents.



Sec. 611.3  Advanced technology vehicle.

    In order to demonstrate that a vehicle is an ``advanced technology 
vehicle'', an automobile manufacturer must provide the following:
    (a) Emissions certification. An automobile manufacturer must written 
certify that the vehicle meets, or will meet, the emissions requirements 
specified in the definition of ``advanced technology vehicle''; and
    (b) Demonstration of fuel economy performance. An automobile 
manufacturer must demonstrate that the vehicle has a combined average 
fuel economy of at least 125 percent of the average combined fuel 
economy for vehicles with substantially similar attributes for model 
year 2005.
    (1) A combined average fuel economy calculation required under this 
paragraph for a vehicle that is a dual fueled automobile for the purpose 
of CAFE is calculated as if the vehicle were not a dual fueled 
automobile.
    (2) The average combined fuel economy for vehicles with 
substantially similar attributes is a harmonic production weighted 
average of the combined average fuel economy of all vehicles with 
substantially similar attributes in model year 2005, as published by 
DOE.
    (3) In the case of an electric drive vehicle with the ability to 
recharge from an off-board source, an automobile manufacturer must 
provide DOE with a test procedure and sufficient data to demonstrate 
that the vehicle meets or

[[Page 273]]

exceeds the applicable average combined fuel economy of vehicles with 
substantially similar attributes.



                      Subpart B_Direct Loan Program



Sec. 611.100  Eligible applicant.

    (a) In order to be eligible to receive a loan under this part, an 
applicant
    (1) Must be either--
    (i) An automobile manufacturer that can demonstrate an improved fuel 
economy as specified in paragraph (b) of this section, or
    (ii) A manufacturer of a qualifying component; and
    (2) Must be financially viable without receipt of additional Federal 
funding associated with the proposed eligible project.
    (b) Improved fuel economy. (1) If the applicant is an automobile 
manufacturer that manufactured in model year 2005, vehicles subject to 
the CAFE requirements, the applicant must demonstrate that its adjusted 
average fuel economy for its light-duty vehicle fleet produced in the 
most recent year for which final CAFE compliance data is available, at 
the time of application, is greater than or equal to the adjusted 
average fuel economy of the applicant's fleet for MY 2005, based on the 
MY 2005 final CAFE compliance data.
    (2) If the applicant is an automobile manufacturer that did not 
manufacture in model year 2005, vehicles subject to the CAFE 
requirements, the applicant must demonstrate that the projected combined 
fuel economy for the relevant the advanced technology vehicle that is 
the subject of the application is greater than or equal to the industry 
adjusted average fuel economy for model year 2005 of equivalent 
vehicles, based on final CAFE compliance data.
    (3) The CAFE values under this paragraph are to be calculated using 
the CAFE procedures applicable to the model year being evaluated.
    (4) An applicant must provide fuel economy data, at the model level, 
relied upon to make the demonstration required by this section.
    (5) An applicant that is a manufacturer of a qualifying component 
under paragraph (a)(1)(ii) of this section does not need to make a 
showing of improved fuel economy under this paragraph.
    (c) In determining under paragraph (a)(2) of this section whether an 
applicant is financially viable, the Department will consider a number 
of factors, including, but not limited to:
    (1) The applicant's debt-to-equity ratio as of the date of the loan 
application;
    (2) The applicant's earnings before interest, taxes, depreciation, 
and amortization (EBITDA) for the applicant's most recent fiscal year 
prior to the date of the loan application;
    (3) The applicant's debt to EBITDA ratio as of the date of the loan 
application;
    (4) The applicant's interest coverage ratio (calculated as EBITDA 
divided by interest expenses) for the applicant's most recent fiscal 
year prior to the date of the loan application;
    (5) The applicant's fixed charge coverage ratio (calculated as 
EBITDA plus fixed charges divided by fixed charges plus interest 
expenses) for the applicant's most recent fiscal year prior to the date 
of the loan application;
    (6) The applicant's liquidity as of the date of the loan 
application;
    (7) Statements from applicant's lenders that the applicant is 
current with all payments due under loans made by those lenders at the 
time of the loan application; and
    (8) Financial projections demonstrating the applicant's solvency 
through the period of time that the loan is outstanding.
    (d). For purposes of making a determination under paragraph (a)(2) 
of this section, additional Federal funding includes any loan, grant, 
guarantee, insurance, payment, rebate, subsidy, credit, tax benefit, or 
any other form of direct or indirect assistance from the Federal 
government, or any agency or instrumentality thereof, other than the 
proceeds of a loan approved under this Part, that is, or is expected to 
be made available with respect to, the project for which the loan is 
sought under this Part.



Sec. 611.101  Application.

    An application must include, at a minimum, the following information 
and materials:

[[Page 274]]

    (a) A certification by the applicant that it meets each of the 
requirements of the program as set forth in statute, the regulations in 
this part, and any supplemental requirements issued by DOE;
    (b) A description of the nature and scope of the proposed project 
for which a loan or award is sought under this part, including key 
milestones and location of the project;
    (c) A detailed explanation of how the proposed project qualifies 
under applicable law to receive a loan or award under this part, 
including vehicle simulations using industry standard model (need to add 
name and location of this open source model) to show projected fuel 
economy;
    (d) A detailed estimate of the total project costs together with a 
description of the methodology and assumptions used to produce that 
estimate;
    (e) A detailed description of the overall financial plan for the 
proposed project, including all sources and uses of funding, equity, and 
debt, and the liability of parties associated with the project;
    (f) Applicant's business plan on which the project is based and 
applicant's financial model presenting project pro forma statements for 
the proposed term of the obligations including income statements, 
balance sheets, and cash flows. All such information and data must 
include assumptions made in their preparation and the range of revenue, 
operating cost, and credit assumptions considered;
    (g) An analysis of projected market use for any product (vehicle or 
component) to be produced by or through the project, including relevant 
data and assumptions justifying the analysis, and copies of any 
contractual agreements for the sale of these products or assurance of 
the revenues to be generated from sale of these products;
    (h) Financial statements for the past three years, or less if the 
applicant has been in operation less than three years, that have been 
audited by an independent certified public accountant, including all 
associated notes, as well as interim financial statements and notes for 
the current fiscal year, of the applicant and parties providing the 
applicant's financial backing, together with business and financial 
interests of controlling or commonly controlled organizations or 
persons, including parent, subsidiary and other affiliated corporations 
or partners of the applicant;
    (i) A list showing the status of and estimated completion date of 
applicant's required project-related applications or approvals for 
Federal, state, and local permits and authorizations to site, construct, 
and operate the project, a period of 5 years preceding the submission of 
an application under this Part;
    (j) Information sufficient to enable DOE to comply with the National 
Environmental Policy Act of 1969, as required by Sec. 611.106 of this 
part;
    (k) A listing and description of assets associated, or to be 
associated, with the project and any other asset that will serve as 
collateral for the Loan, including appropriate data as to the value of 
the assets and the useful life of any physical assets. With respect to 
real property assets listed, an appraisal that is consistent with the 
``Uniform Standards of Professional Appraisal Practice,'' promulgated by 
the Appraisal Standards Board of the Appraisal Foundation, and performed 
by licensed or certified appraisers, is required;
    (l) An analysis demonstrating that, at the time of the application, 
the applicant is financially viable without receipt of additional 
Federal funding associated with the proposed project, and that there is 
a reasonable prospect that the Applicant will be able to make payments 
of principal and interest on the loan as and when such payments become 
due under the terms of the loan documents, and that the applicant has a 
net present value which is positive, taking all costs, existing and 
future, into account. This information must include, from publicly 
traded companies, relevant filings with the Securities and Exchange 
Commission;
    (m) Written assurance that all laborers and mechanics employed by 
contractors or subcontractors during construction, alteration, or repair 
that is financed, in whole or in part, by a loan under this Part shall 
be paid wages at rates not less than those prevailing on similar 
construction in the locality, as determined by the Secretary of Labor

[[Page 275]]

in accordance with 40 U.S.C. sections 3141-3144, 3146, and 3147;
    (n) Completed Form SF-LLL, as required by 10 CFR Part 601; and
    (o) Other information, as determined necessary by DOE.



Sec. 611.102  Eligible project costs.

    (a) Eligible costs are:
    (1) Those costs that are reasonably related to the reequipping, 
expanding, or establishing a manufacturing facility in the United States 
to produce qualifying advanced technology vehicles or qualifying 
components;
    (2) Costs of engineering integration performed in the United States 
for qualifying vehicles or qualifying components;
    (3) Costs for payment with loan proceeds that are incurred, but not 
yet paid by the borrower, after a substantially complete application has 
been submitted to DOE; and
    (4) Costs incurred after closing of the loan.
    (b) In determining the overall total cost of an Eligible Project, 
DOE and the applicant may include significant costs already incurred and 
capitalized by the applicant in accordance with Generally Accepted 
Accounting Principles and these costs may be considered by DOE in 
determining the Borrower's contribution to total project costs.



Sec. 611.103  Application evaluation.

    (a) Eligibility screening. Applications will be reviewed to 
determine whether the applicant is eligible, the information required 
under Sec. 611.101 is complete, and the proposed loan complies with 
applicable statutes and regulations. DOE can at any time reject an 
application, in whole or in part, that does not meet these requirements.
    (b) Evaluation criteria. Applications that are determined to be 
eligible pursuant to paragraph (a) of this section shall be subject to a 
substantive review by DOE based upon factors that include, but are not 
limited to, the following:
    (1) The technical merit of the proposed advanced technology vehicles 
or qualifying components, with greater weight given for factors 
including, but not limited to:
    (i) Improved vehicle fuel economy above that required for an 
advanced technology vehicle;
    (ii) Potential contributions to improved fuel economy of the U.S. 
light-duty vehicle fleet;
    (iii) Likely reductions in petroleum use by the U.S. light-duty 
fleet; and
    (iv) Promotion of use of advanced fuel (e.g., E85, ultra-low sulfur 
diesel).
    (2) Technical Program Factors such as economic development and 
diversity in technology, company, risk, and geographic location.
    (3) The adequacy of the proposed provisions to protect the 
Government, including sufficiency of Security, the priority of the lien 
position in the Security, and the percentage of the project to be 
financed with the loan.
    (4) In making loans to those manufacturers that have existing 
facilities, priority will be given to those facilities that are oldest 
or have been in existence for at least 20 years even if such facilities 
are idle at the time of application.



Sec. 611.104  [Reserved]



Sec. 611.105  Agreement.

    (a) Only an Agreement executed by a duly authorized DOE Contracting 
Officer can contractually obligate the government to make a loan made by 
and through the Federal Financing Bank with the full faith and credit of 
the United States government on the principal and interest.
    (b) DOE is not bound by oral representations made during the 
Application stage, or during any negotiation process.
    (c) No funds obtained from the Federal Government, or from a loan or 
other instrument guaranteed by the Federal Government, may be used to 
pay administrative fees, or other fees charged by or paid to DOE 
relating to the section 136 loan program.
    (d) Prior to the execution by DOE of an Agreement, DOE must ensure 
that the following requirements and conditions, which must be specified 
in the Agreement, are satisfied:
    (1) The Borrower is a Eligible Applicant as defined in this part;
    (2) The Agreement is for an Eligible Project as defined in this 
part;

[[Page 276]]

    (3) The principal amount of the loan is limited to no more than 80 
percent of reasonably anticipated total Project Costs;
    (4) Loan funds will be disbursed only to meet immediate cash 
disbursement needs of the Borrower and not for investment purposes, and 
any investment earnings obtained in excess of accrued interest expense 
will be returned to United States Government; and
    (5) Such documents, representations, warrants and covenants as DOE 
may require.



Sec. 611.106  Environmental requirements.

    (a)(1) In general. Environmental review of the proposed projects 
under this part will be conducted in accordance with applicable 
statutes, regulations, and Executive Orders.
    (2) The applicant must submit a comprehensive environmental report. 
The comprehensive environmental report shall consist of the specific 
reports and related material set forth in paragraphs (d) through (f) of 
this section.
    (3) The regulations of the Council on Environmental Quality 
implementing NEPA require DOE to provide public notice of the 
availability of project specific environmental documents such as 
environmental impact statements, environmental assessments, findings of 
no significant impact, records of decision etc., to the affected public. 
See 40 CFR 1506.6(b). The comprehensive environmental report will 
provide substantial basis for any required environmental impact 
statement or environmental assessment and findings of no significant 
impact, pursuant to the procedures set forth in 10 CFR 1021.215. DOE may 
also make a determination as to whether a categorical exclusion is 
available with regard to an Application.
    (b) The detail of each specific report must be commensurate with the 
complexity of the proposal and its potential for environmental impact. 
Each topic in each specific report shall be addressed or its omission 
justified, unless the specific report description indicates that the 
data is not required for that type of project. If material required for 
one specific report is provided in another specific report or in another 
exhibit, it may be incorporated by reference. If any specific report 
topic is required for a particular project but is not provided at the 
time the application is filed, the comprehensive environmental report 
shall explain why it is missing and when the applicant anticipates it 
will be filed.
    (c) As appropriate, each specific report shall:
    (1) Address conditions or resources that might be directly or 
indirectly affected by the project;
    (2) Identify significant environmental effects expected to occur as 
a result of the project;
    (3) Identify the effects of construction, operation (including 
maintenance and malfunctions), and termination of the project, as well 
as cumulative effects resulting from existing or reasonably foreseeable 
projects;
    (4) Identify measures proposed to enhance the environment or to 
avoid, mitigate, or compensate for adverse effects of the project; and
    (5) Provide a list of publications, reports, and other literature or 
communications that were cited or relied upon to prepare each report.
    (d) Specific Report 1--Project impact and description. This report 
must describe the environmental impacts of the project, facilities 
associated with the project, special construction and operation 
procedures, construction timetables, future plans for related 
construction, compliance with regulations and codes, and permits that 
must be obtained.
    (e) Specific Report 2--Socioeconomics. This report must identify and 
quantify the impacts of constructing and operating the proposed project 
on factors affecting towns and counties in the vicinity of the project. 
The report must:
    (1) Describe the socioeconomic impact area;
    (2) Evaluate the impact of any substantial immigration of people on 
governmental facilities and services and plans to reduce the impact on 
the local infrastructure;
    (3) Describe on-site manpower requirements and payroll during 
construction and operation, including the number of construction 
personnel who currently reside within the impact area, would commute 
daily to the site

[[Page 277]]

from outside the impact area, or would relocate temporarily within the 
impact area;
    (4) Determine whether existing housing within the impact area is 
sufficient to meet the needs of the additional population;
    (5) Describe the number and types of residences and businesses that 
would be displaced by the project, procedures to be used to acquire 
these properties, and types and amounts of relocation assistance 
payments; and
    (6) Conduct a fiscal impact analysis evaluating incremental local 
government expenditures in relation to incremental local government 
revenues that would result from construction of the project. Incremental 
expenditures include, but are not limited to, school operating costs, 
road maintenance and repair, public safety, and public utility costs.
    (f) Specific Report 3--Alternatives. This report must describe 
alternatives to the project and compare the environmental impacts of 
such alternatives to those of the proposal. The discussion must 
demonstrate how environmental benefits and costs were weighed against 
economic benefits and costs, and technological and procedural 
constraints. The potential for each alternative to meet project 
deadlines and the environmental consequences of each alternative shall 
be discussed. The report must discuss the ``no action'' alternative and 
the potential for accomplishing the proposed objectives through the use 
of other means. The report must provide an analysis of the relative 
environmental benefits and costs for each alternative.



Sec. 611.107  Loan terms.

    (a) All loans provided under this part shall be due and payable in 
full at the earlier of:
    (1) the projected life, in years, of the Eligible facility that is 
built or installed as a result of the Eligible Project carried out using 
funds from the loan, as determined by the Secretary; or
    (2) Twenty-five (25) years after the date the loan is closed.
    (b) Loans provided under the Part must bear a rate of interest that 
is equal to the rate determined by the Secretary of the Treasury, taking 
into consideration current market yields outstanding marketable 
obligations of the United States of comparable maturity. This rate will 
be determined separately for each drawdown of the loan.
    (c) A loan provided under this part may be subject to a deferral in 
repayment of principal for not more than 5 years after the date on which 
the Eligible facility that is built or installed as a result of the 
Eligible Project first begins operations, as determined by the 
Secretary.
    (d)(1) The performance of all of the Borrower's obligations under 
the Loan Documents shall be secured by, and shall have the priority in, 
such Security as provided for within the terms and conditions of the 
Loan Documents.
    (2) Accordingly, the rule states that the Secretary must have a 
first lien or security interest in all property acquired with loan 
funds. This requirement may be waived only by the Secretary on a non-
delegable basis. DOE must also have a lien on any other property of the 
applicant pledged to secure the loan.
    (3) In the event of default, if recoveries from the property and 
revenues pledged to the repayment of the loan are insufficient to fully 
repay all principal and interest on the loan, then the Federal 
Government will have recourse to the assets and revenues of the Borrower 
to the same extent as senior unsecured general obligations of the 
Borrower.
    (e) The Borrower will be required to pay at the time of the closing 
of the loan a fee equal to 10 basis points of the principal amount of 
the loan.



Sec. 611.108  Perfection of liens and preservation of collateral.

    (a) The Agreement and other documents related thereto shall provide 
that:
    (1) DOE and the Applicant, in conjunction with the Federal Financing 
Bank if necessary, will take those actions necessary to perfect and 
maintain liens, as applicable, on assets which are pledged as collateral 
for the loan; and
    (2) Upon default by the Borrower, the holder of pledged collateral 
shall take such actions as DOE may reasonably

[[Page 278]]

require to provide for the care, preservation, protection, and 
maintenance of such collateral so as to enable the United States to 
achieve maximum recovery from the pledged assets. DOE shall reimburse 
the holder of collateral for reasonable and appropriate expenses 
incurred in taking actions required by DOE.
    (b) In the event of a default, DOE may enter into such contracts as 
the Secretary determines are required to preserve the collateral. The 
cost of such contracts may be charged to the Borrower.



Sec. 611.109  Audit and access to records.

    (a) The Agreement and related documents shall provide that:
    (1) DOE in conjunction with the Federal Financing Bank, as 
applicable, and the Borrower, shall keep such records concerning the 
project as are necessary, including the Application, Term Sheet, 
Conditional Commitment, Agreement, mortgage, note, disbursement requests 
and supporting documentation, financial statements, audit reports of 
independent accounting firms, lists of all project assets and non-
project assets pledged as security for the loan, all off-take and other 
revenue producing agreements, documentation for all project 
indebtedness, income tax returns, technology agreements, documentation 
for all permits and regulatory approvals and all other documents and 
records relating to the Eligible Project, as determined by the 
Secretary, to facilitate an effective audit and performance evaluation 
of the project; and
    (2) The Secretary and the Comptroller General, or their duly 
authorized representatives, shall have access, for the purpose of audit 
and examination, to any pertinent books, documents, papers and records 
of the Borrower or DOE, as applicable. Such inspection may be made 
during regular office hours of the Borrower or DOE, as applicable, or at 
any other time mutually convenient.
    (b) The Secretary may from time to time audit any or all statements 
or certificates submitted to the Secretary. The Borrower will make 
available to the Secretary all books and records and other data 
available to the Borrower in order to permit the Secretary to carry out 
such audits. The Borrower should represent that it has within its rights 
access to all financial and operational records and data relating to the 
project financed by the loan, and agrees that it will, upon request by 
the Secretary, exercise such rights in order to make such financial and 
operational records and data available to the Secretary. In exercising 
its rights hereunder, the Secretary may utilize employees of other 
Federal agencies, independent accountants, or other persons.
    (c) Loan funds are being expended efficiently and effectively if 
documentation submitted and audits conducted under this section 
demonstrate that the borrower is making appropriate progress toward 
achieving the purpose for which the loan was originally made.



Sec. 611.110  Assignment or transfer of loans.

    (a) The Loan Documents may not be modified, in whole or in part, 
without the prior written approval of DOE.
    (b) Upon prior written approval by DOE and the Federal Financing 
Bank, a certification by the assignor that the assignee is an Eligible 
Applicant as described in Sec. 611.100 of this part, and subject to 
paragraph (c) of this section and other provisions of this part, a 
Borrower may assign or transfer its interest in a loan provided under 
this part, including the loan documents, to a party that qualifies as an 
Eligible Applicant.
    (c) The provisions of paragraph (b) of this section shall not apply 
to transfers which occur by operation of law.



Sec. 611.111  Default, demand, payment, and collateral liquidation.

    (a) In the event that the Borrower has defaulted in the making of 
required payments of principal or interest, and such default has not 
been cured within the period of grace provided in the Agreement, DOE may 
cause the principal amount of the loan, together with accrued interest 
thereon, and all amounts owed to the United States by Borrower pursuant 
to the Agreement, to become immediately due and payable by giving the 
Borrower written notice to such effect.

[[Page 279]]

    (b) In the event that the Borrower is in default as a result of a 
breach of one or more of the terms and conditions of the Agreement, 
note, mortgage, or other contractual obligations related to the 
transaction, other than the Borrower's obligation to pay principal or 
interest on the loan, and DOE determines, in writing, that such a 
default has materially affected the rights of the parties, the Borrower 
shall be given the period of grace provided in the Agreement to cure 
such default. If the default is not cured during the period of grace, 
DOE may cause the principal amount of the loan, together with accrued 
interest thereon, and all amounts owed to the United States by Borrower 
pursuant to the Agreement, to become immediately due and payable by 
giving the Borrower written notice to such effect.
    (c) In the event that the Borrower has defaulted as described in 
paragraphs (a) or (b) of this section and such default is not cured 
during the grace period provided in the Agreement, DOE shall notify the 
U.S. Attorney General. DOE, acting through the U.S. Attorney General, 
may seek to foreclose on the collateral assets and/or take such other 
legal action as necessary for the protection of the Government.
    (d) If DOE is awarded title to collateral assets pursuant to a 
foreclosure proceeding, DOE may take action to complete, maintain, 
operate, or lease the Eligible Facilities, or otherwise dispose of any 
property acquired pursuant to the Agreement or take any other necessary 
action which DOE deems appropriate.
    (e) In addition to foreclosure and sale of collateral pursuant 
thereto, the U.S. Attorney General shall take appropriate action in 
accordance with rights contained in the Agreement to recover costs 
incurred by the Government as a result of the defaulted loan or other 
defaulted obligation. Any recovery so received by the U.S. Attorney 
General on behalf of the Government shall be applied in the following 
manner: First to the expenses incurred by the U.S. Attorney General and 
DOE in effecting such recovery; second, to reimbursement of any amounts 
paid by DOE as a result of the defaulted obligation; third, to any 
amounts owed to DOE under related principal and interest assistance 
contracts; and fourth, to any other lawful claims held by the Government 
on such process. Any sums remaining after full payment of the foregoing 
shall be available for the benefit of other parties lawfully entitled to 
claim them.
    (f) In the event that DOE considers it necessary or desirable to 
protect or further the interest of the United States in connection with 
the liquidation of collateral or recovery of deficiencies due under the 
loan, DOE will take such action as may be appropriate under the 
circumstances.



Sec. 611.112  Termination of obligations.

    DOE, the Federal Financing Bank, and the Borrower shall have such 
rights to terminate the Agreement as are set forth in the loan 
documents.



                    Subpart C_Facility/Funding Awards



Sec. 611.200  Purpose and scope.

    This subpart sets forth the policies and procedures applicable to 
the award and administration of grants by DOE for advanced technology 
vehicle manufacturing facilities as authorized by section 136(b) of the 
Energy Independence and Security Act (Pub. L. 110-140).



Sec. 611.201  Applicability.

    Except as otherwise provided by this subpart, the award and 
administration of grants shall be governed by 10 CFR part 600 (DOE 
Financial Assistance Rules).



Sec. 611.202  Advanced Technology Vehicle Manufacturing Facility Award Program.

    DOE may issue, under the Advanced Technology Vehicle Manufacturing 
Facility Award Program, 10 CFR part 611, subpart C, awards for eligible 
projects.



Sec. 611.203  Eligibility.

    In order to be eligible for an award, an applicant must be either--
    (a) An automobile manufacturer that can demonstrate an improved fuel 
economy as specified in paragraph (b) of section 611.3, or

[[Page 280]]

    (b) A manufacturer of a qualifying component.



Sec. 611.204  Awards.

    Awards issued for eligible projects shall be for an amount of no 
more than 30 percent of the eligible project costs.



Sec. 611.205  Period of award availability.

    An award under section 611.204 shall apply to--
    (a) Facilities and equipment placed in service before December 30, 
2020; and
    (b) Engineering integration costs incurred during the period 
beginning on December 19, 2007 and ending on December 30, 2020.



Sec. 611.206  Existing facilities.

    The Secretary shall, in making awards to those manufacturers that 
have existing facilities, give priority to those facilities that are 
oldest or have been in existence for at least 20 years. Such facilities 
can currently be sitting idle.



Sec. 611.207  Small automobile and component manufacturers.

    (a) In this section, the term ``covered firm'' means a firm that--
    (1) Employs less than 500 individuals; and
    (2) Manufactures automobiles or components of automobiles.
    (b) Set Aside--Of the amount of funds that are used to provide 
awards for each fiscal year under this subpart, not less than 10 percent 
shall be used to provide awards to covered firms or consortia led by a 
covered firm.



Sec. Sec. 611.208-611.209  [Reserved]

[[Page 281]]



                      SUBCHAPTER I_SALES REGULATION


PART 622_CONTRACTUAL PROVISIONS--Table of Contents





Sec. 622.103  Dispute provisions.

    (a) Except as provided in paragraph (b) of this section, all DOE 
contracts for the sale of personal property to any organization outside 
the U.S. Government shall include a Disputes clause which provides for:
    (1) Binding final decisions by the Contracting Officer, subject to 
appeal;
    (2) Appeal rights pursuant to the Contract Disputes Act of 1978;
    (3) Continuation of performance by the contractor at the direction 
of the contracting officer pending final resolution of the dispute.
    (b) Exceptions:
    (1) The provisions of this part shall not apply to contracts for 
sale of electric power by the Power Marketing Administrations;
    (2) The Secretary may exempt a contract or class of contracts from 
this requirement upon determination that it would not be in the public 
interest in an individual contract or class of contracts with a foreign 
government, or agency thereof, or international organization, or 
subsidiary body thereof, to include the Disputes clause, as permitted by 
section 3 of the Contract Disputes Act of 1978.
    (c) The Energy Board of Contract Appeals (EBCA) has cognizance over 
disputes relating to DOE Sales contracts.
    (d) The Disputes clause in Sec. 624.102-4 shall be used in 
accordance with this Sec. 622.103.

(Sec. 644, Department of Energy Organization Act, Pub. L. 95-91, 91 
Stat. 599 (42 U.S.C. 7254))

[46 FR 34559, July 2, 1981]



PART 624_CONTRACT CLAUSES--Table of Contents





Sec. 624.102-4  Disputes.

    The following clause shall be used in accordance with the provisions 
of Sec. 622.103:

                                Disputes

    (a) This contract is subject to the Contract Disputes Act of 1978 
(41 U.S.C. 601 et seq.). If a dispute arises relating to the contract, 
the purchaser may submit a claim to the Contracting Officer who shall 
issue a written decision on the dispute.
    (b) Claim means:
    (1) A written request submitted to the Contracting Officer;
    (2) For payment of money, adjustment of contract terms, or other 
relief;
    (3) Which is in dispute or remains unresolved after a reasonable 
time for its review and disposition by the Government; and
    (4) For which a Contracting Officer's decision is demanded.
    (c) In the case of disputed requests or amendments to such requests 
for payment exceeding $50,000, or with any amendment causing the total 
request in dispute to exceed $50,000, the purchaser shall certify, at 
the time of submission of a claim, as follows:

    I certify that the claim is made in good faith, that the supporting 
data is accurate and complete to the best of my knowledge and belief, 
and that the amount requested accurately reflects the contract 
adjustment for which the Purchaser believes the Government is liable.

(Purchaser's Name)______________________________________________________

(Title)_________________________________________________________________

    (d) The Government shall pay the Purchaser interest.
    (1) On the amount found due to the purchaser and unpaid on claims 
submitted under this clause;
    (2) At the rates fixed by the Secretary of the Treasury;
    (3) From the date the amount is due until the Government makes 
payment.
    (e) The purchaser shall pay the Government interest:
    (1) On the amount found due to the Government and unpaid on claims 
submitted under this clause;
    (2) At the rates fixed by the Department of Energy for the payment 
of interest on past due accounts;
    (3) From the date the amount is due until the purchaser makes 
payment.

[[Page 282]]

    (f) The decision of the Contracting Officer shall be final and 
conclusive and not subject to review by any forum, tribunal, or 
Government agency unless an appeal or action is timely commenced within 
the times specified by the Contract Disputes Act of 1978.
    (g) The purchaser shall comply with any decision of the Contracting 
Officer and at the direction of the Contracting Officer shall proceed 
diligently with performance of this contract pending final resolution of 
any request for relief, claim, appeal, or action related to this 
contract.

(Sec. 644, Department of Energy Organization Act, Pub. L. 95-91, 91 
Stat. 599 (42 U.S.C. 7254))



PART 625_PRICE COMPETITIVE SALE OF STRATEGIC PETROLEUM RESERVE PETROLEUM--Table of Contents



Sec.
625.1 Application and purpose.
625.2 Definitions.
625.3 Standard sales provisions.
625.4 Publication of the Standard Sales Provisions.
625.5 Failure to perform in accordance with SPR Contracts of Sale.

Appendix A to Part 625--Standard Sales Provisions

    Authority: 15 U.S.C. 761; 42 U.S.C. 7101; 42 U.S.C. 6201.

    Source: 48 FR 56541, Dec. 21, 1983, unless otherwise noted.



Sec. 625.1  Application and purpose.

    This part shall apply to all price competitive sales of SPR 
petroleum by DOE. This section provides the rules for developing 
standard contract terms and conditions and financial and performance 
responsibility measures; notifying potential purchasers of those terms, 
conditions and measures; choosing applicable terms, conditions and 
measures for each sale of SPR petroleum; and notifying potential 
purchasers of which terms, conditions and measures will be applicable to 
particular sales of SPR petroleum.



Sec. 625.2  Definitions.

    (a) DOE. DOE is the Department of Energy established by Public Law 
95-91 (42 U.S.C. 7101 et seq.) and any component thereof including the 
SPR Office.
    (b) Notice of Sale. The Notice of Sale is the document announcing 
the sale of SPR petroleum, the amount, type and location of the 
petroleum being sold, the delivery period and the procedures for 
submitting offers. The Notice of Sale will specify which contractual 
provisions and financial and performance responsibility measures are 
applicable to that particular sale of petroleum, and will provide other 
pertinent information.
    (c) Petroleum. Petroleum means crude oil, residual fuel oil or any 
refined petroleum product (including any natural gas liquid and any 
natural gas liquid product) owned or contracted for by DOE and in 
storage in any permanent SPR facility, or temporarily stored in other 
storage facilities, or in transit to such facilities (including 
petroleum under contract but not yet delivered to a loading terminal).
    (d) Price Competitive Sale. A price competitive sale of SPR 
petroleum is one in which contract awards are made to those responsive, 
responsible persons offering the highest prices; sales conducted 
pursuant to rules adopted under section 161(e) of the Energy Policy and 
Conservation Act (EPCA), Public Law 94-163 (42 U.S.C. 6201 et seq.), are 
not price competitive sales.
    (e) Purchaser. A purchaser is any person or entity (including a 
Government agency) which enters into a contract with DOE to purchase SPR 
petroleum.
    (f) SPR. SPR is the Strategic Petroleum Reserve, that program of the 
Department of Energy established by title I, part B of EPCA.
    (g) Standard Sales Provisions. The Standard Sales Provisions are a 
set of terms and conditions of sale, which may contain or describe 
financial and performance responsibility measures, for petroleum sold 
from the SPR under this part.



Sec. 625.3  Standard sales provisions.

    (a) Contents. The Standards Sales Provisions shall contain contract 
clauses which may be applicable to price competitive sales of SPR 
petroleum, including terms and conditions of sale, and purchaser 
financial and performance responsibility measures, or descriptions 
thereof. At his discretion, the Secretary or his designee may

[[Page 283]]

specify in a Notice of Sale which of such terms and conditions, or 
financial and performance responsibility measures, shall apply to a 
particular sale of SPR petroleum; and, he may specify any revisions in 
such terms, conditions and measures, and any additional terms, 
conditions and measures which shall be applicable to that sale, that are 
consistent with the SPR Drawdown Plan adopted on December 1, 1982.
    (b) Acceptance by offerors. All offerors must, as part of their 
offers for SPR petroleum in response to a Notice of Sale, agree without 
exception to all contractual provisions and financial and performance 
responsibility measures which the Notice of Sale makes applicable to the 
particular sale.
    (c) Award of contracts. No contract for the sale of SPR petroleum 
may be awarded to any offeror who has not unconditionally agreed to all 
contractual provisions and financial and performance responsibility 
measures which the Notice of Sale makes applicable to the particular 
sale.
    (d) Contract documents. The terms and conditions which the Notice of 
Sale makes applicable to a particular sale may be incorporated into a 
contract for the sale of SPR petroleum by reference to the Notice of 
Sale.



Sec. 625.4  Publication of the Standard Sales Provisions.

    (a) Publication. The Standard Sales Provisions shall be published in 
the Federal Register and in the Code of Federal Regulations as an 
appendix to this rule.
    (b) Revisions of the Standard Sales Provisions. The Standard Sales 
Provisions shall be reviewed periodically and republished in the Federal 
Register, with any revisions.
    (c) Notification of applicable clauses. The Notice of Sale will 
specify, by referencing the Federal Register and the Code of Federal 
Regulations in which the latest version of the Standard Sales Provisions 
was published, which contractual terms and conditions and contractor 
financial and performance responsibility measures contained or described 
therein are applicable to that particular sale.



Sec. 625.5  Failure to perform in accordance with SPR Contracts of Sale.

    (a) Ineligibility. In addition to any remedies available to the 
Government under the Contract of Sale, in the event that a purchaser 
fails to perform in accordance with applicable SPR petroleum sale 
contractual provisions, and such failure is not excused by those 
provisions, the Headquarters Senior Procurement Official, at his 
discretion, may make such purchaser ineligible for future awards of SPR 
petroleum sales contracts.
    (b) Determination of ineligibility. No purchaser shall be made 
ineligible for the award of any SPR sales contract prior to notice and 
opportunity to respond in accordance with the requirements of this 
subsection.
    (1) Upon the determination that a purchaser is to be considered for 
ineligibility, the purchaser shall be sent by certified mail return 
receipt requested, the following:
    (i) Notification that the Headquarters Senior Procurement Official 
is considering making the purchaser ineligible for future awards;
    (ii) Identification of the SPR sales contract which the purchaser 
failed to comply with, along with a brief description of the events and 
circumstances relating to such failure;
    (iii) Advice that the purchaser may submit in writing for 
consideration by the Headquarters Senior Procurement Official in 
determining whether or not to impose ineligibility on the purchaser, any 
information or argument in opposition to the ineligibility; and
    (iv) Advice that such information or argument in opposition to the 
ineligibility must be submitted within a certain time in order to be 
considered by the Headquarters Senior Procurement Official, such time to 
be not less than 21 days.
    (2) After elapse of the time period established under paragraph 
(b)(1) of this section for receipt of the purchaser's response, the 
Headquarters Senior Procurement Official, at his discretion, and after 
consideration of the purchaser's written response, if any, may make the 
purchaser ineligible for future awards of SPR petroleum sales contracts. 
Such ineligibility shall continue for the time period determined

[[Page 284]]

by the Headquarters Senior Procurement Official, as appropriate under 
the circumstances.
    (3) The purchaser shall be notified of the Headquarters Senior 
Procurement Official's decision.
    (c) Reconsideration. Any purchaser who has been excluded from 
participating in any SPR sale under paragraph (a) may request that the 
Headquarters Senior Procurement Offical reconsider the purchaser's 
ineligibility. The Headquarters Senior Procurement Official, at his 
discretion, may reinstate any such purchaser to eligibility for future 
competitive sales.



         Sec. Appendix A to Part 625--Standard Sales Provisions

                                  Index

Section A--General Pre-Sale Information
    A.1 List of abbreviations
    A.2 Definitions
    A.3 Standard Sales Provisions (SSPs)
    A.4 Periodic revisions of the Standard Sales Provisions
    A.5 Sales Notification List (SNL)
    A.6 Publication of the Notice of Sale
    A.7 Penalty for false statements in offers to buy SPR petroleum
Section B--Sales Solicitation Provisions
    B.1 Requirements for a valid offer--caution to offerors
    B.2 Price indexing
    B.3 Certification of independent price determination
    B.4 Requirements for vessels--caution to offerors
    B.5 ``Superfund'' tax on SPR petroleum--caution to offerors
    B.6 Export limitations and licensing--caution to offerors
    B.7 State of Hawaii access to SPR crude oil
    B.8 Issuance of the Notice of Sale
    B.9 Submission of offers and modification of previously submitted 
offers
    B.10 Acknowledgment of amendments to a Notice of Sale
    B.11 Late offers, modifications of offers, and withdrawal of offers
    B.12 Offer guarantee
    B.13 Explanation requests from offerors
    B.14 Currency for offers
    B.15 Language of offers and contracts
    B.16 Proprietary data
    B.17 SPR crude oil streams and delivery points
    B.18 Notice of Sale line item schedule--petroleum quantity, quality, 
and delivery method
    B.19 Line item information to be provided in the offer
    B.20 Mistake in offer
    B.21 Evaluation of offers
    B.22 Procedures for evaluation of offers
    B.23 Financial statements and other information
    B.24 Resolicitation procedures on unsold petroleum
    B.25 Offeror's certification of acceptance
    B.26 Notification of Apparently Successful Offeror
    B.27 Contract documents
    B.28 [Reserved]
    B.29 Procedures for selling to other U.S. Government agencies
Section C--Sales Contract Provisions
    C.1 Delivery of SPR petroleum
    C.2 Compliance with the ``Jones Act'' and the U.S. export control 
laws
    C.3 [Reserved]
    C.4 Environmental compliance
    C.5 Delivery and transportation scheduling
    C.6 Contract modification--alternate delivery line items
    C.7 Application procedures for ``Jones Act'' and Construction 
Differential Subsidy waivers
    C.8 Vessel loading procedures
    C.9 Vessel laytime and demurrage
    C.10 Vessel loading expedition options
    C.11 Purchaser liability for excessive berth time
    C.12 Pipeline delivery procedures
    C.13 Title and risk of loss
    C.14 Acceptance of crude oil
    C.15 Delivery acceptance and verification
    C.16 Price adjustments for quality differentials
    C.17 Determination of quality
    C.18 Determination of quantity
    C.19 Delivery documentation
    C.20 Contract amounts
    C.21 Payment and Performance Letter of Credit
    C.22 Billing and payment
    C.23 Method of payments
    C.24 Interest
    C.25 Termination
    C.26 Other Government remedies
    C.27 Liquidated damages
    C.28 Failure to perform under SPR contracts
    C.29 Government options in case of impossibility of performance
    C.30 Limitation of Government liability
    C.31 Notices
    C.32 Disputes
    C.33 Assignment
    C.34 Order of precedence
    C.35 Gratuities

                                Exhibits:

A--SPR Crude Oil Comprehensive Analysis
B--SPR Delivery Point Data
C--Offer Standby Letter of Credit
D--Payment and Performance Letter of Credit

[[Page 285]]

E--Strategic Petroleum Reserve Crude Oil Delivery Report--SPRPMO-F-
          6110.2-14b 1/87 REV.8/91

                 Section A--General Pre-Sale Information

                        A.1 List of Abbreviations

(a) ASO: Apparently Successful Offeror
(b) DLI: Delivery Line Item
(c) DOE: U.S. Department of Energy
(d) MLI: Master Line Item
(e) NA: Notice of Acceptance
(f) NS: Notice of Sale
(g) SNL: Sales Notification List
(h) SSPs: Standard Sales Provisions
(i) SPR: Strategic Petroleum Reserve
(j) SPRCODR: SPR Crude Oil Delivery Report (Exhibit E)
(k) SPR/PMO: Strategic Petroleum Reserve Project Management Office

                             A.2 Definitions

    Affiliate. The term ``affiliate'' means associated business concerns 
or individuals if, directly or indirectly, (1) either one controls or 
can control the other, or (2) a third party controls or can control 
both.
    Business Day. The term ``business day'' means any day except 
Saturday, Sunday or a U.S. Government holiday.
    Contract. The term ``contract'' means the contract under which DOE 
sells SPR petroleum. It is composed of the NS, the NA, the successful 
offer, and the SSPs incorporated by reference.
    Contracting Officer. The term ``Contracting Officer'' means the 
person executing sales contracts on behalf of the Government, and any 
other Government employee properly designated as Contracting Officer. 
The term includes the authorized representative of a Contracting Officer 
acting within the limits of his or her authority.
    Electronic signature or signature means a method of signing an 
electronic message that--
    (1) Identifies and authenticates a particular person as the source 
of the electronic message; and
    (2) Indicates such person's approval of the information contained in 
the electronic message.
    Government. The term ``Government'', unless otherwise indicated in 
the text, means the United States Government.
    Head of the Contracting Activity. The term ``Head of the Contracting 
Activity'' means Project Manager, Strategic Petroleum Reserve Project 
Management Office.
    Notice of Acceptance (NA). The term ``Notice of Acceptance'' means 
the document that is sent by DOE to accept the purchaser's offer to 
create a contract.
    Notification of Apparently Successful Offeror (ASO). The term 
``notification of apparently successful offeror'' means the notice, 
written or oral, by the Contracting Officer to an offeror that it will 
be awarded a contract if it is determined to be responsible.
    Notice of Sale (NS). The term ``Notice of Sale'' means the document 
announcing the sale of SPR petroleum, the amount, characteristics and 
location of the petroleum being sold, the delivery period and the 
procedures for submitting offers. The NS will specify what contractual 
provisions and financial and performance responsibility measures are 
applicable to that particular sale of petroleum and provide other 
pertinent information.
    Offeror. The term ``offeror'' means any person or entity (including 
a government agency) who submits an offer in response to a NS.
    Petroleum. The term ``petroleum'' means crude oil, residual fuel 
oil, or any refined product (including any natural gas liquid, and any 
natural gas liquid product) owned or contracted for by DOE and in 
storage in any permanent SPR facility, or temporarily stored in other 
storage facilities.
    Project Management Office (SPR/PMO). The term ``Project Management 
Office'' means the DOE personnel and DOE contractors located in 
Louisiana and Texas responsible for the operation of the SPR.
    Purchaser. The term ``purchaser'' means any person or entity 
(including a government agency) who enters into a contract with DOE to 
purchase SPR petroleum.
    Standard Sales Provisions (SSPs). The term ``Standard Sales 
Provisions'' means this set of terms and conditions of sale applicable 
to price competitive sales of SPR petroleum. These SSPs constitute the 
``standard sales agreement'' referenced in the Strategic Petroleum 
Reserve ``Drawdown'' (Distribution) Plan, Amendment No. 4 (December 1, 
1982, DOE/EP 0073) to the SPR Plan.
    Strategic Petroleum Reserve (SPR). The term ``Strategic Petroleum 
Reserve'' means that DOE program established by Title I, Part B, of the 
Energy Policy and Conservation Act, 42 U.S.C. 6201, as amended.
    Vessel. The term ``vessel'' means a tankship, an integrated tug-
barge (ITB) system, a self-propelled barge, or other barge.

                  A.3 Standard Sales Provisions (SSPs)

    (a) These SSPs contain pre-sale information, sales solicitation 
provisions, and sales contract clauses setting forth terms and 
conditions of sale, including purchaser financial and performance 
responsibility measures, or descriptions thereof, which may be 
applicable to price competitive sales of petroleum from the SPR in 
accordance with the SPR Sales Rule, 10 CFR Part 625. The NS will specify 
which of these provisions shall apply to a particular sale of such 
petroleum, and it may specify any revisions therein and any additional 
provisions which shall be applicable to that sale.
    (b) All offerors must, as part of their offers for SPR petroleum in 
response to a NS, agree

[[Page 286]]

without exception to all sales provisions of that NS.

         A.4 Periodic Revisions of the Standard Sales Provisions

    DOE will review the SSPs periodically and republish them in the 
Federal Register, with any revisions. When an NS is issued, it will cite 
the Federal Register and the Code of Federal Regulations (if any) in 
which the latest version of the SSPs was published. Offerors are 
cautioned that the Code of Federal Regulations may not contain the 
latest version of the SSPs published in the Federal Register. Interested 
persons may view the current SSPs at http://www.spr.doe.gov/reports/
SSPs/ssp.htm.

                    A.5 Sales Notification List (SNL)

    (a) The SPR/PMO will maintain a Sales Notification List (SNL) of 
those potential offerors who wish to receive notification of an NS 
whenever one is issued. In order to assure that prospective offerors 
will receive such notification in a timely fashion, all potential 
offerors are encouraged to register on the SNL as soon as possible.
    (b) Any firm or individual may complete the SNL on-line registration 
process at http://www.spr.doe.gov.

                  A.6 Publication of the Notice of Sale

    (a) Notification of a NS will be sent via e-mail to those who have 
registered on the SNL referenced in Provision A.5.
    (b) The NS will be posted on the SPR web page http://www.spr.doe.gov 
for public viewing. In addition, the issuance of the NS will be 
publicized on the Fossil Energy web page http://www.fe.doe.gov/programs/
reserves/.
    (c) A DOE press release, which will include the salient features of 
the NS, will be made available to all news agencies.

     A.7 Penalty for False Statements in Offers To Buy SPR Petroleum

    (a) Making false statements in an offer to buy SPR petroleum may 
expose an offeror to a penalty under the False Statements Act, 18 U.S.C. 
1001, which provides:

 Whoever, in any matter within the jurisdiction of any department or 
agency of the United States knowingly and willfully falsifies, conceals 
or covers up by any trick, scheme, or device a material fact, or makes 
any false, fictitious or fraudulent statements or representations, or 
makes or uses any false writing or document knowing the same to contain 
any false, fictitious or fraudulent statement or entry, shall be fined 
under this title or imprisoned not more than 5 years, or both.

    (b) Under 18 U.S.C. 3571, the maximum fine to which an individual or 
organization may be sentenced for violations of 18 U.S.C. (including 
Section 1001) is set at $250,000 and $500,000 respectively, unless there 
is a greater amount specified in the statute setting out the offense, or 
the violation is subject to special factors set out in Section 3571. The 
United States Sentencing Guidelines also apply to violations of Section 
1001, and offenders may be subject to a range of fines under the 
guidelines up to and including the maximum amounts permitted by law.

                Section B--Sales Solicitation Provisions

         B.1 Requirements for a Valid Offer--Caution to Offerors

    (a) Offerors are advised that the submission of an offer 
electronically is required. Submission of an offer via the SPR's 
specified on-line system will constitute a legal, binding offer. The use 
of the combination of User Name and password to login and submit offers 
constitutes an electronic signature.
    (b) A valid offer to purchase SPR petroleum must meet the following 
conditions:
    (1) The offer must be submitted via the SPR's on-line system as 
designated in the NS;
    (2) The offer must be received no later than the date and time set 
for receipt of offers;
    (3) The offer guarantee (see Provision B.12) must be received no 
later than the time set for the receipt of offers;
    (4) Any amendments to the NS that explicitly require acknowledgment 
of receipt must be properly acknowledged as specified in the NS; and
    (5) Submission of an on-line offer in accordance with this provision 
constitutes agreement without exception to all provisions of the SSPs 
that the NS makes applicable to a particular sale, as well as to all 
provisions in the NS.
    (c) At the discretion of the Contracting Officer, offers may be 
received by alternative means if circumstances preclude use of the 
specified on-line system.

                           B.2 Price Indexing

    The Government, at its discretion, may make use of a price indexing 
mechanism to effect contract price adjustments based on petroleum market 
conditions, e.g., crude oil market price changes between the times of 
offer price submissions and physical deliveries. The NS will set forth 
the provisions applicable to any such mechanism.

          B.3 Certification of Independent Price Determination

    (a) The offeror certifies that:
    (1) The prices in this offer have been arrived at independently, 
without, for the purposes of restricting competition, any consultation, 
communication, or agreement with any other offeror or competitor 
relating to:

[[Page 287]]

    (i) Those prices;
    (ii) The intention to submit an offer; or
    (iii) The methods or factors used to calculate the prices offered.
    (2) The prices in this offer have not been and will not be knowingly 
disclosed by the offeror, directly or indirectly, to any other offeror 
or to any competitor before the time set for receipt of offers, unless 
otherwise required by law; and
    (3) No attempt has been made or will be made by the offeror to 
induce any other concern to submit or not to submit an offer for the 
purpose of restricting competition.
    (b) Each submission of an offer is considered to be a certification 
by the offeror that the offeror:
    (1) Is the person within the offeror's organization responsible for 
determining the prices being offered, and that the offeror has not 
participated, and will not participate, in any action contrary to 
paragraphs (a)(1) through (a)(3) of this provision; or
    (2)(i) Has been authorized in writing to act as agent for the 
persons responsible for such decision in certifying that such persons 
have not participated, and will not participate, in any action contrary 
to (a)(1) through (a)(3) of this provision;
    (ii) As their agent does hereby so certify; and
    (iii) As their agent has not participated, and will not participate, 
in any action contrary to paragraphs (a)(1) through (a)(3) of this 
provision.

            B.4 Requirements for Vessels--Caution to Offerors

    (a) The ``Jones Act'', 46 U.S.C. 883, prohibits the transportation 
of any merchandise, including SPR petroleum, by water or land and water, 
on penalty of forfeiture thereof, between points within the United 
States (including Puerto Rico, but excluding the Virgin Islands) in 
vessels other than vessels built in and documented under laws of the 
United States, and owned by United States citizens, unless the 
prohibition has been waived by the Secretary of Homeland Security. 
Further, certain U.S.-flag vessels built with Construction Differential 
Subsidies (CDS) are precluded by Section 506 of the Merchant Marine Act 
of 1936 (46 U.S.C. 1156) from participating in U.S. coastwise trade, 
unless such prohibition has been waived by the Secretary of 
Transportation, the waiver being limited to a maximum of 6 months in any 
given year. CDS vessels may also receive Operating Differential 
Subsidies, requiring separate permission from the Secretary of 
Transportation for domestic operation, under Section 805(a) of the same 
statute. The NS will advise offerors of any general waivers allowing use 
of non-coastwise qualified vessels or vessels built with Construction 
Differential Subsidies for a particular sale of SPR petroleum. If there 
is no general waiver, purchasers may request waivers in accordance with 
Provision C.7, but remain obligated to complete performance under this 
contract regardless of the outcome of that waiver process.
    (b) The Department of Homeland Security's regulations concerning 
Vessels Carrying Oil, Noxious Liquid Substances, Garbage, Municipal or 
Commercial Waste, and Ballast Water (33 CFR part 151) and Reception 
Facilities For Oil, Noxious Liquid Substances, and Garbage (33 CFR part 
158) implement the requirements of the International Convention for the 
Prevention of Pollution from Ships, 1973, as modified by the 1978 
Protocol relating thereto (MARPOL 73/78). These regulations prohibit any 
oceangoing tankship, required to retain oil or oily mixtures on-board 
while at sea, from entering any port or terminal unless the port or 
terminal has a valid Certificate of Adequacy as to its oil reception 
capabilities. Marine terminals in support of the SPR (see Exhibit B, SPR 
Delivery Point Data) have Certificates of Adequacy; however, they may 
not have reception facilities for oily ballast, vessel sludge or oily 
bilge water wastes. Accordingly, tankships will be required to make 
arrangements for and be responsible for all costs associated with 
appropriate disposal of such ballast, vessel sludge or oily bilge water 
waste or permission to load may be denied.

       B.5 ``Superfund'' Tax on SPR Petroleum--Caution to Offerors

    (a) Sections 4611 and 4612 of the Internal Revenue Code, provide for 
the imposition of taxes on domestic and imported petroleum to support 
the Hazardous Substance Response Fund (the ``Superfund'') and the Oil 
Spill Liability Trust Fund (``Trust Fund''). These taxes are not 
currently being collected.
    (b) DOE has already paid the Superfund and Trust Fund taxes on some 
of the oil imported and stored in the SPR. However, no Superfund or 
Trust Fund tax has been paid on any domestic oil stored in the SPR or on 
imported oil stored prior to the imposition of these taxes. Because 
domestic and imported crude oil for which no Superfund and Trust Fund 
taxes have been paid and crude oils for which these taxes have been paid 
have been commingled in the SPR, the Government retains records of the 
tax status of all SPR petroleum in storage. The NS will advise 
purchasers in the event these taxes are reimposed.

        B.6 Export Limitations and Licensing--Caution to Offerors

    Offerors for SPR petroleum are put on notice that export of SPR 
crude oil is subject to U.S. export control laws implemented by the 
Department of Commerce Short Supply Controls, codified at 15 CFR part 
754, Sec. 754.2,

[[Page 288]]

Crude oil. Subsections of Sec. 754.2 provide for the approval of 
applications to export crude oil from the SPR in connection with 
refining or exchange of SPR oil. Specifically, these subsections are 
Sec. Sec. 754.2(b)(iii), and 754.2(f), Refining or exchange of 
Strategic Petroleum Reserve Oil. These provisions implement the 
authority given to the President by 42 U.S.C. 6241(i) to permit the 
export of oil in the SPR for the purpose of obtaining refined petroleum 
for the U.S. market. In addition, the President could waive the 
requirement for an export license altogether. The NS will advise of any 
waivers under this Presidential authority.

               B.7 State of Hawaii Access to SPR crude oil

    Potential offerors are advised that pursuant to subsection 161 (j) 
of the Energy Policy and Conservation Act (42 U.S.C. 6241 (j)), the 
State of Hawaii, or a State-designated eligible entity authorized to act 
on the State's behalf, may submit a ``binding offer'' for the purchase 
of SPR petroleum. By submission of a binding offer, the State of Hawaii 
is entitled to purchase up to three percent of the quantity of SPR 
petroleum offered for sale or one-twelfth of the state's annual import 
quantity barrels. The price will be equal to the volumetrically weighted 
average price of the successful competitive offers for the applicable 
Master Line Item. Furthermore, at the request of the Hawaii or its 
designated eligible entity, the petroleum purchased will have first 
preference in its scheduling for delivery. The State of Hawaii may also 
enter into exchange or processing agreements to permit delivery of the 
purchased petroleum to other locations, if a petroleum product of 
similar value or quantity is delivered to the State.

                   B.8 Issuance of the Notice of Sale

    In the event petroleum is sold from the SPR, DOE will issue a NS 
containing all the pertinent information necessary for the offeror to 
prepare a priced offer. A NS may be issued with a week or less allowed 
for the receipt of offers. Offerors are expected to examine the complete 
NS document, and to become familiar with the SSPs cited therein. Failure 
to do so will be at the offeror's risk.

B.9 Submission of Offers and Modification of Previously Submitted Offers

    (a) Unless otherwise provided in the NS, offers must be submitted 
via SPR's on-line system and received no later than the date and time 
set for offer receipt as specified in the NS.
    (b) Unless otherwise provided in the NS, offers may be modified or 
withdrawn on-line, provided that the modification or withdrawal is 
accomplished prior to the date and time specified for receipt of offers.
    (c) An offeror may withdraw an offer by deleting the submission in 
accordance with the instructions provided for the SPR's on-line system.
    (d) An offeror may modify a previously submitted offer by 
withdrawing the original offer (see (c) above) and resubmitting the 
replacement offer in its entirety no later than the date and time set 
for offer receipt.
    (e) DOE will not release to the general public the identities of the 
offerors, or their offer quantities and prices, until the Apparently 
Successful Offerors have been determined. DOE will inform simultaneously 
all offerors and other interested parties of the successful and 
unsuccessful offerors and their offer data by means of a public ``offer 
posting.'' The offer posting will normally occur within a week of 
receipt of offers and will provide all interested parties access to 
offer data as well as any DOE changes in the petroleum quantities or 
quality to be sold. DOE will announce the date, time, and location of 
the offer posting as soon as practicable.

          B.10 Acknowledgment of Amendments to a Notice of Sale

    When an amendment to a NS requires acknowledgment of issuance, it 
must be acknowledged by an offeror in accordance with instructions 
provided in the NS. Such acknowledgment must be received as part of a 
timely offer submission.

   B.11 Late Offers, Modifications of Offers, and Withdrawal of Offers

    (a) The date/time stamp affixed by the SPR's on-line system will be 
the sole determinant of timely offer receipt. Any offer received after 
the date and time specified in the NS for receipt will be considered 
only if
    (1) it is received before award is made; and
    (2) the Contracting Officer determines that the late receipt was due 
solely to a failure of the Government's electronic receiving equipment, 
or
    (3) it is the only offer received.
    (b) Any modification or withdrawal of an offer is subject to the 
same conditions as in (a) of this provision.
    (c) Notwithstanding (a) and (b) of this provision, a late 
modification of an otherwise successful offer that makes its terms more 
favorable to the Government will be considered at any time it is 
received and may be accepted.

                          B.12 Offer Guarantee

    (a) Each offeror must submit an acceptable offer guarantee for each 
offer submitted. Each offer guarantee must be received at the place 
specified in the NS no later than the date and time set for receipt of 
offers.
    (b) An offeror's failure to submit a timely, acceptable guarantee 
will result in rejection

[[Page 289]]

of its offer. A properly executed copy of the offer guarantee(s) may be 
faxed to the telephone numbers provided in the NS, with the original 
sent to the Contracting Officer as provided in paragraph (d) of this 
provision.
    (c) The amount of each offer guarantee is $10 million or 5 percent 
of the maximum potential contract amount, whichever is less. The maximum 
potential contract amount is the sum of the products determined by 
multiplying the offer's maximum purchase quantity for each master line 
item, times the highest offer prices that the offeror would have to pay 
for that master line item if the offer were to be successful. The SPR 
on-line system will perform this calculation automatically as offer 
information is entered.
    (d) For each offer, an offeror must submit an irrevocable standby 
letter of credit from a U.S. depository institution containing the 
substantive provisions set out in Exhibit C, Offer Standby Letter of 
Credit, all letter of credit costs to be borne by the offeror. If the 
letter of credit contains any provisions at variance with Exhibit C or 
fails to include any provisions contained in Exhibit C, nonconforming 
provisions must be deleted and missing substantive provisions must be 
added or the letter of credit will not be accepted. The depository 
institution must be located in and authorized to do business in any 
state of the United States or the District of Columbia, and authorized 
to issue letters of credit by the banking laws of the United States or 
any state of the United States or the District of Columbia. The 
depository institution must be an account holder with the Federal 
Reserve Banking system and a participant (on line) in the Fed's Fedwire 
Deposit System Network funds transfer system. The original of the letter 
of credit must be sent to the Contracting Officer at the address 
specified in the NS. The issuing bank must provide documentation 
indicating that the person signing the letter of credit is authorized to 
do so, in the form of corporate minutes, the Authorized Signature List, 
or the General Resolution of Signature Authority.
    (e) The envelope containing the original letter of credit shall 
clearly be marked ``RE: NS  --------. OFFER STANDBY LETTER OF 
CREDIT (Name of Company). Offerors are cautioned that if they provide 
more than one Offer Standby Letter of Credit for multiple offers and, 
due to the absence of clear information from the offeror, the Government 
is unable to identify which letter of credit applies to which offer, the 
Contracting Officer in his sole discretion may assign the letters of 
credit to specific offers.
    (f) The offeror shall be liable for any amount lost by DOE due to 
the difference between the offer and the resale price, and for any 
additional resale costs incurred by DOE in the event that the offeror:
    (1) withdraws its offer within 10 days following the time set for 
receipt of offers;
    (2) withdraws its offer after having agreed to extend its acceptance 
period; or
    (3) having received a notification of ASO, fails to furnish an 
acceptable payment and performance letter of credit (see Provision C.21) 
within the time limit specified by the Contracting Officer.
    The offer guarantee shall be used toward offsetting such price 
difference or additional resale costs. Use of the offer guarantee for 
such recovery shall not preclude recovery by DOE of damages in excess of 
the amount of the offer guarantee caused by such failure of the offeror.
    (g) Letters of credit furnished as offer guarantees must be valid 
for at least 60 calendar days after the date set for the receipt of 
offers.
    (h) Offer guarantee letters of credit may be returned upon request 
to an unsuccessful offeror 5 business days after expiration of the 
offeror's acceptance period, and, except as provided in (i) of this 
provision, to a successful offeror upon receipt of a satisfactory 
payment and performance letter of credit.
    (i) If an offeror defaults on its offer, DOE will hold the offer 
guarantee so that damages can be assessed against it.

                 B.13 Explanation Requests From Offerors

    Offerors may request explanations regarding meaning or 
interpretation of the NS from the individual at the telephone number 
and/or e-mail address indicated in the NS. On complex and/or significant 
questions, DOE reserves the right to have the offeror put the question 
in writing; explanation or instructions regarding these questions will 
be given as an amendment to the NS.

                        B.14 Currency for Offers

    Prices shall be stated and invoices shall be paid in U.S. dollars.

                  B.15 Language of Offers and Contracts

    All offers in response to the NS and all modifications of offers 
shall be in English. All correspondence between offerors or purchasers 
and DOE shall be in English.

                          B.16 Proprietary Data

    Offer quantities and prices are not considered proprietary 
information. If any other information submitted in connection with a 
sale is considered proprietary, that information shall be identified by 
e-mail to the address indicated in the NS, and an explanation provided 
as to the reason such data should be considered proprietary. Any final 
decision as to whether the material so identified is proprietary will be 
made by DOE. DOE's Freedom of Information Act regulations governing the 
release of proprietary data shall apply.

[[Page 290]]

             B.17 SPR Crude Oil Streams and Delivery Points

    (a) The geographical locations of the terminals, pipelines, and 
docks interconnected with permanent SPR storage locations, the SPR crude 
oil streams available at each location and the delivery points for those 
streams are as follows, (See also Exhibit A, SPR Crude Oil Comprehensive 
Analysis, and Exhibit B, SPR Delivery Point Data):

 
------------------------------------------------------------------------
    Geographical location        Delivery points      Crude oil stream
------------------------------------------------------------------------
Freeport, Texas.............  Seaway Terminal or    SPR Bryan Mound
                               Seaway Pipeline       Sweet, SPR Bryan
                               Jones Creek.          Mound Sour
Texas City, Texas...........  Seaway Terminal or    SPR Bryan Mound
                               Local Pipelines.      Sweet, SPR Bryan
                                                     Mound Sour
Nederland, Texas............  Sunoco Logistics      SPR West Hackberry
                               Partners, Nederland   Sweet, SPR West
                               Terminal.             Hackberry Sour, SPR
                                                     Big Hill Sweet, SPR
                                                     Big Hill Sour
Lake Charles, Louisiana.....  Shell 22-Inch/DOE     SPR West Hackberry
                               Lake Charles          Sweet, SPR West
                               Pipeline Connection.  Hackberry Sour
St. James, Louisiana........  Shell Sugarland       SPR Bayou Choctaw
                               Terminal connected    Sweet, SPR Bayou
                               to LOCAP and          Choctaw Sour
                               Capline.
Beaumont, Texas.............  Unocal Terminal.....  SPR Big Hill Sweet,
                                                     SPR Big Hill Sour
Winnie, Texas...............  Shell 20-Inch Meter   SPR Big Hill Sweet,
                               Station.              SPR Big Hill Sour
------------------------------------------------------------------------

    (b) The NS may change delivery points and it may also include 
additional crude oils, terminals, temporary storage facilities or 
systems utilized in connection with petroleum in transit to the SPR.
    (c) The NS may contain additional information supplementing Exhibit 
B, SPR Delivery Point Data.

B.18 Notice of Sale Line Item Schedule--Petroleum Quantity, Quality, and 
                             Delivery Method

    (a) Unless the NS provides otherwise, the possible master line items 
(MLI) that may be offered are as identified in Provision B.17. 
Currently, there are eight MLIs, one for each of the eight crude oil 
streams that the SPR has in storage. The NS may not offer all the 
possible MLIs.
    (b) Each MLI contains multiple delivery line items (DLIs), each of 
which specifies an available delivery method and the nominal delivery 
period. Offerors are cautioned that the NS may alter the period of time 
covered by each DLI. The NS will specify which DLIs are offered for each 
MLI.
    (1) DLI-A covers petroleum to be transported by pipeline, either 
common carrier or local. The nominal delivery period is one month.
    (2) DLI-B covers petroleum to be transported by tankships. The 
nominal delivery period is one month.
    (3) DLI-E covers petroleum to be transported by barges (Note: These 
DLIs are usually only applicable to deliveries of West Hackberry and Big 
Hill Sweet and Sour crude oil streams from Sun Docks). The nominal 
delivery period is one month.
    (4) Where the storage site is connected to more than one terminal or 
pipeline, additional DLIs will be offered. The additional DLIs will 
include DLI-H, covering petroleum to be transported by pipeline over the 
period of a month; DLI-I, covering tankships, etc. The Notice of Sale 
will specify any additional DLIs which may be applicable.
    (c) The NS will state the total estimated number of barrels to be 
sold on each MLI. An offeror may offer to buy all or part of the 
petroleum offered on an MLI. In making awards, the Contracting Officer 
shall attempt to achieve award of the exact quantities offered by the 
NS, but may sell a quantity of petroleum in excess of the quantity 
offered for sale on a particular MLI in order to match the DLI offers 
received. In addition, the Contracting Officer may reduce the MLI 
quantity available for award by any amount and reject otherwise 
acceptable offers, if he determines, in his sole discretion after 
consideration of the offers received on all of the MLIs, that award of 
those quantities is not in the best interest of the Government because 
the prices offered for them are not reasonable, or that, in light of 
market conditions after offers are received, a lesser quantity than that 
offered should be sold.
    (d) The NS will specify a minimum contract quantity for each DLI. To 
be responsive, an offer on a DLI must be for at least that quantity.
    (e) The NS will specify the maximum quantity that could be sold on 
each of the DLIs. The maximum quantity is not an indication of the 
amount of petroleum that, in fact, will be sold on that DLI. Rather, it 
represents DOE's best estimate of the maximum amount of the particular 
SPR crude oil stream that can be moved by that transportation system 
over the delivery period. The total DOE estimated DLI maximums may 
exceed the total number of barrels to be sold on that MLI, as the NS DLI 
estimates represent estimated transportation capacity, not the amount of 
petroleum offered for sale.

[[Page 291]]

    (f) The NS will not specify what portion of the petroleum that DOE 
offers on a MLI will, in fact, be sold on any given DLI. Rather, the 
highest priced offers received on the MLI will determine the DLIs 
against which the offered petroleum is sold.
    (g) DOE will not sell petroleum on a DLI in excess of the DLI 
maximum; however, DOE reserves the right to revise its estimates at any 
time and to award or modify contracts in accordance with its revised 
estimates. Offerors are cautioned that: DOE cannot guarantee that such 
transportation capacity is available; offerors should undertake their 
own analyses of available transportation capacity; and each purchaser is 
wholly responsible for arranging all transportation other than terminal 
arrangements at the terminals listed in Provision B.17, which shall be 
made in accordance with Provision C.5. A purchaser against one DLI 
cannot change a transportation mode without prior written permission 
from DOE, although such permission will be given whenever possible, in 
accordance with Provision C.6.
    (h) Exhibit A, SPR Crude Oil Comprehensive Analysis, contains 
nominal characteristics for each SPR crude oil stream. Prospective 
offerors are cautioned that these data may change with SPR inventory 
changes. The NS will provide, to the maximum extent practicable, the 
latest data on each stream offered.

         B.19 Line Item Information To Be Provided in the Offer

    (a) Each offeror, if determined to be an ASO on a DLI, agrees to 
enter into a contract under the terms of its offer for the purchase of 
petroleum in the offer and to take delivery of that petroleum (plus or 
minus 10 percent as provided for in Provision C.20) in accordance with 
the terms of that contract.
    (b) An offeror may submit an offer for any or all the MLIs offered 
by the NS. However, offerors are cautioned that alternate offers on 
different MLIs are not permitted. For example, an offeror may offer to 
purchase 1,000,000 barrels of SPR West Hackberry Sweet and 1,000,000 
barrels of SPR West Hackberry Sour, but may not offer to purchase, in 
the alternative, either 1,000,000 barrels of sweet or 1,000,000 barrels 
of sour.
    (c) An offeror may submit multiple offers. However, separate on-line 
offers and offer guarantees must be submitted and each offer will be 
evaluated on an individual basis.
    (d) The following information will be provided to DOE by the offeror 
on the SPR on-line offer form:
    (1) Maximum MLI Quantity. The offer shall state the maximum quantity 
of each crude oil stream that the offeror is willing to buy.
    (2) Desired Qty. The offer shall state the number of barrels that 
the offeror will accept on each DLI, i.e., by the delivery mode and 
during the delivery period specified. The quantity stated on a single 
DLI shall not exceed the Maximum MLI Quantity for the MLI. The offeror 
shall designate a quantity on at least one DLI for the MLI, but may 
designate quantities on more than one DLI. If the offeror is willing to 
accept alternate DLIs, the total of its desired DLI quantities would 
exceed its Maximum MLI quantity; otherwise, the total of its desired DLI 
quantities should equal its Maximum MLI quantity.
    (3) Price. The offer shall state the price per barrel for each DLI 
for which the offeror has designated a Desired Qty. Where offers have 
indicated quantities on more than one DLI with a different price on 
each, DOE will award the highest priced DLI first. If the offeror has 
the same price for two or more DLIs, it may indicate its first choice, 
second choice, etc., for award of those items; if the offeror does not 
indicate a preference, or indicates the same preference for more than 
one DLI, DOE may select the DLIs to be awarded at its discretion. Prices 
may be stated in hundredths of a cent ($0.000l). DOE shall drop from the 
offer and not consider any numbers of less than one one-hundredth of a 
cent.
    (4) Accept Minimum Quantity. The offeror must choose whether to 
accept only the Desired Qty (by deselecting the Accept Min Qty checkbox 
to indicate an unwillingness to accept less than the Desired Qty for 
that DLI) or, in the alternative, to accept any quantity awarded between 
the offer's Desired Qty and the minimum contract quantity for the DLI 
(by leaving the Accept Min Qty checkbox selected). However, DOE will 
award less than the Desired Qty only if the quantity available to be 
awarded is less than the Desired Qty.

                          B.20 Mistake in Offer

    (a) After receiving offers, the Contracting Officer shall examine 
all offers for mistakes. If the Contracting Officer discovers any 
quantity discrepancies, he may obtain from the offeror oral or written 
verification of the offer actually intended, but in any event, he shall 
proceed with offer evaluation applying the following procedures:
    (1) In case of conflict between the maximum MLI quantity and the 
stated DLI quantities (for example, if a single stated DLI quantity 
exceeds the corresponding maximum MLI quantity), the lesser quantity 
will govern in the evaluation of the offer.
    (2) In the event that the offer fails to specify a maximum MLI 
quantity, the offer will be evaluated as though the largest stated DLI 
quantity is the offer's maximum MLI quantity.
    (b) In cases where the Contracting Officer has reason to believe a 
mistake not covered by the procedures set forth in paragraph (a) may 
have been made, he shall request from the offeror a verification of the 
offer, calling

[[Page 292]]

attention to the suspected mistake. The Contracting Officer may 
telephone the offeror and confirm the request by electronic means. The 
Contracting Officer may set a limit of as little as 6 hours for 
telephone response, with any required written documentation to be 
received within 2 business days. If no response is received, the 
Contracting Officer may determine that no error exists and proceed with 
offer evaluation.
    (c) The Head of the Contracting Activity will make administrative 
determinations described in paragraphs (c)(1) and (c)(2) of this 
provision if an offeror alleges a mistake after receipt of offers and 
before award.
    (1) The Head of the Contracting Activity may refuse to permit the 
offeror to withdraw an offer, but permit correction of the offer if 
clear and convincing evidence establishes both the existence of a 
mistake and the offer actually intended. However, if such correction 
would result in displacing one or more higher acceptable offers, the 
Head of the Contracting Activity shall not so determine unless the 
existence of the mistake and the offer actually intended are 
ascertainable substantially from the NS and offer itself.
    (2) The Head of the Contracting Activity may determine that an 
offeror shall be permitted to withdraw an offer in whole, or in part if 
only part of the offer is affected, without penalty under the offer 
guarantee, where the offeror requests permission to do so and clear and 
convincing evidence establishes the existence of a mistake, but not the 
offer actually intended.
    (d) In all cases where the offeror is allowed to make verbal 
corrections to the original offer, confirmation of these corrections 
must be received in writing within the time set by the Contracting 
Officer or the original offer will stand as submitted.

                        B.21 Evaluation of Offers

    (a) The Contracting Officer will be the determining official as to 
whether an offer is responsive to the SSPs and the NS. DOE reserves the 
right to reject any or all offers and to waive minor informalities or 
irregularities in offers received.
    (b) A minor informality or irregularity in an offer is an 
inconsequential defect the waiver or correction of which would not be 
prejudicial to other offerors. Such a defect or variation from the 
strict requirements of the NS is inconsequential when its significance 
as to price, quantity, quality or delivery is negligible.

                B.22 Procedures for Evaluation of Offers

    (a) Award on each DLI will be made to the responsible offerors that 
submit the highest priced offers responsive to the SSPs and the NS and 
that have provided the required payment and performance guarantee as 
required by Provision C.21.
    (b) DOE will array all offers on an MLI from highest price to lowest 
price for award evaluation regardless of DLI. However, DOE will award 
against the DLIs and will not award a greater quantity on a DLI than 
DOE's estimate (which is subject to change at any time) of the maximum 
quantity that can be moved by the delivery method. Selection of the 
apparently successful offers involves the following steps:
    (1) Any offers below the minimum acceptable price, if any minimum 
price has been established for the sale, will be rejected as 
nonresponsive.
    (2) All offers on each MLI will be arrayed from highest price to 
lowest price.
    (3) (i) Offers may be rejected if they are below 95 percent of the 
sales price, as estimated by the Government, of comparable crude oil 
being sold in the same area at the same time. In making the sales price 
estimate, the Government will consider both the ``Base Reference Price'' 
as defined in the Notice of Sale and other available information bearing 
on the issue.
    (ii) For price offers at or above 95 percent of the sales price 
estimate, the Contracting Officer will determine price reasonableness, 
considering offers received and prevailing market conditions.
    (iii) Price offers below 95 percent may be accepted only if the 
Contracting Officer determines such action is necessary to achieve SPR 
crude oil supply objectives and such offered prices are reasonable.
    (4) The highest priced offers will be reviewed for responsiveness to 
the NS.
    (5) In the event the highest priced offer does not take all the 
petroleum available on the MLI, sequentially, the next highest priced 
offer will be selected until all of the petroleum offered on the MLI is 
awarded or there are no more acceptable offers. In the event that 
acceptance of an offer against an MLI or a DLI would result in the sale 
of more petroleum on an MLI than DOE has offered or the sale of more 
petroleum on a DLI than DOE estimates can be delivered by the specified 
delivery method, DOE will not award the full amount of the offer, but 
rather the remaining MLI quantity or DLI capacity, provided such portion 
exceeds DOE's minimum contract quantity. In the event that the quantity 
remaining is less than the offeror is willing to accept, but more than 
DOE's minimum contract quantity, the Contracting Officer shall proceed 
to the next highest priced offer.
    (6) In the event of tied offers and an insufficient remaining 
quantity available on the MLI or insufficient remaining capacity on the 
DLI to fully award all tied offers, the Contracting Officer shall apply 
an objective random methodology for allocating the remaining MLI 
quantity or DLI capacity among the tied offers, taking into 
consideration the quantity the offeror is willing to

[[Page 293]]

accept as indicated in its offer. When making this allocation, the 
Contracting Officer in his sole discretion may do one or more of the 
following:
    (i) Make an additional quantity or capacity available;
    (ii) Contact an offeror to determine whether alternative delivery 
arrangements can be made; or
    (iii) Not award all or part of the remaining quantity of petroleum.
    (7) The Contracting Officer may reduce the MLI quantity available 
for award by any amount and reject otherwise acceptable offers if in his 
sole discretion he determines, after consideration of the offers 
received on all of the MLIs, that award of those quantities is not in 
the best interest of the Government because the prices offered for them 
are not reasonable; or if the Government determines, in light of market 
conditions after offers are received, to sell less than the overall 
quantity of SPR petroleum offered for sale.
    (8) Determinations of ASO responsibility will be made by the 
Contracting Officer before each award. All ASOs will be notified and 
advised to provide to the Contracting Officer within five business days 
a letter of credit (See Exhibit D, Payment and Performance Letter of 
Credit) as specified in Provision C.21, all letter of credit costs to be 
borne by the purchaser.
    (9) Compliance with required payment and performance guarantees will 
effectively assure a finding of responsibility of offerors, except 
where:
    (i) An offeror is on either DOE's or the Federal Government's list 
of debarred, ineligible and suspended bidders; or
    (ii) Evidence, with respect to an offeror, comes to the attention of 
the Contracting Officer of conduct or activity that represents a 
violation of law or regulation (including an Executive Order); or
    (iii) Evidence is brought to the attention of the Contracting 
Officer of past activity or conduct of an offeror that shows a lack of 
integrity (including actions inimical to the welfare of the United 
States) or willingness to perform, so as to substantially diminish the 
Contracting Officer's confidence in the offeror's performance under the 
proposed contract.

             B.23 Financial Statements and Other Information

    (a) As indicated in Provision B.22(b)(9), compliance with the 
required payment and performance guarantee will in most instances 
effectively assure a finding of responsibility. Therefore, DOE does not 
intend to ask for financial information from all offerors. However, 
after receipt of offers, but prior to making award, DOE reserves the 
right to ask for the audited financial statements for an offeror's most 
recent fiscal year and unaudited financial statements for any subsequent 
quarters. These financial statements must include a balance sheet and 
profit and loss statement for each period covered thereby. A 
certification by a principal accounting officer that there have been no 
material changes in financial condition since the date of the audited 
statements, and that these present the true financial condition as of 
the date of the offer, shall accompany the statements. If there has been 
a change, the amount and nature of the change must be specified and 
explained in the unaudited statements and a principal accounting officer 
shall certify that they are accurate. The Contracting Officer shall set 
a deadline for receipt of this information.
    (b) DOE also reserves the right to require the submission of 
information from the offeror regarding its plans for use of the 
petroleum, the status of requests for export licenses, plans for 
complying with the Jones Act, and any other information relevant to the 
performance of the contract. The Contracting Officer shall set a 
deadline for receipt of this information.

           B.24 Resolicitation Procedures on Unsold Petroleum

    (a) In the event that petroleum offered on an MLI remains unsold 
after evaluation of all offers, the Contracting Officer, at his option, 
may issue an amendment to the NS, resoliciting offers from all 
interested parties. DOE reserves the right to alter the MLIs and/or 
offer different MLIs in the resolicitation.
    (b) In the event that for any reason petroleum that has been awarded 
or allotted for award becomes available to DOE for resale, the following 
procedures will apply:
    (1) If priced offers remain valid in accordance with Provision B.25, 
the petroleum may go to the next highest ranked offer.
    (2) If offers have expired in accordance with Provision B.25, the 
Contracting Officer at his option may offer the petroleum to the highest 
offeror for that MLI. The pertinent offeror may, at its option, accept 
or reject that petroleum at the price it originally offered. If that 
offeror rejects the petroleum, it may be offered to the next highest 
offeror. This process may continue until all the remaining petroleum has 
been allotted for award.
    (3) If the petroleum is not then resold, the Contracting Officer may 
at his option proceed to amend the NS to resolicit offers for that 
petroleum or add the petroleum to the next sales cycle.

            B.25 Offeror's Certification of Acceptance Period

    (a) By submission of an offer, the offeror certifies that its priced 
offer will remain valid for 10 calendar days after the date set

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for the receipt of offers, and further that the successful line items of 
its offer will remain valid for an additional 30 calendar days should it 
receive a notification of ASO either by telephone or in writing during 
the initial 10-day period.
    (b) By mutual agreement of DOE and the offeror, an individual 
offeror's acceptance period may be extended for a longer period.

           B.26 Notification of Apparently Successful Offeror

    The following information concerning its offer will be provided to 
the apparently successful offeror by DOE in the notification of ASO:
    (a) Identification of SPR crude oil streams to be awarded;
    (b) Total quantity to be awarded on each MLI and on each DLI;
    (c) Price in U.S. dollars per barrel for each DLI;
    (d) Extended total price offer for each DLI;
    (e) Provisional contract number;
    (f) Any other data necessary.

                         B.27 Contract Documents

    If an offeror is successful, DOE will make award using an NA signed 
by the Contracting Officer. The NA will identify the items, quantities, 
prices and delivery method which DOE is accepting. The NS will be 
attached to the NA. Provisions of the SSPs will be made applicable 
through incorporation by reference in the NS. DOE may accept the 
offeror's offer by an electronic notice and the contract award shall be 
effective upon issuance of such notice. The electronic notice will be 
followed by a mailing of full documentation as described in Provision 
B.26.

                             B.28 [Reserved]

      B.29 Procedures for Selling to Other U.S. Government Agencies

    (a) If a U.S. Government agency submits an offer for petroleum in a 
price competitive sale, that offer will be arrayed for award 
consideration in accordance with Provision B.22. If a U.S. Government 
agency is an ASO, award and payment will be made exclusively in 
accordance with statutory and regulatory requirements governing 
transactions between agencies, and the U.S. Government agency will be 
responsible for complying with these requirements within the time limits 
set by the Contracting Officer.
    (b) U.S. Government agencies are exempt from all guarantee 
requirements, but must make all necessary arrangements to accept 
delivery of and transport SPR petroleum as set out in Provision C.1. 
Failure by a U.S. Government agency to comply with any of the 
requirements of these SSPs shall not provide a basis for challenging a 
contract award to that agency.

                  Section C--Sales Contract Provisions

                      C.1 Delivery of SPR Petroleum

    (a) The purchaser, at its expense, shall make all necessary 
arrangements to accept delivery of and transport the SPR petroleum, 
except for terminal arrangements which shall be coordinated with the 
SPR/PMO. The DOE will deliver and the purchaser will accept the 
petroleum at delivery points listed in the NS. The purchaser also shall 
be responsible for meeting any delivery requirements imposed at those 
points including complying with the rules, regulations, and procedures 
contained in applicable port/terminal manuals, pipeline tariffs or other 
applicable documents.
    (b) For petroleum in the SPR's permanent storage sites, DOE shall 
provide, at no cost to the purchaser, transportation by pipeline from 
the SPR to the supporting SPR distribution terminal facility specified 
for the MLI and, for vessel loadings, a safe berth and loading 
facilities sufficient to deliver petroleum to the vessel's permanent 
hose connection. The purchaser agrees to assume responsibility for, to 
pay for, and to indemnify and hold DOE harmless for any other costs 
associated with terminal, port, vessel and pipeline services necessary 
to receive and transport the petroleum, including but not limited to 
demurrage charges assessed by the terminal, ballast and oily waste 
reception services, mooring and line-handling services, tank storage 
charges and port charges incurred in the delivery of SPR petroleum to 
the purchaser. The purchaser also agrees to assume responsibility for, 
to pay for and to indemnify and hold DOE harmless for any liability, 
including consequential or other damages, incurred or occasioned by the 
purchaser, its agent, subcontractor at any tier, assignee or any 
subsequent purchaser, in connection with movement of petroleum sold 
under a contract incorporating this provision.

 C.2 Compliance With the ``Jones Act'' and the U.S. Export Control Laws

    Failure to comply with the ``Jones Act,'' 46 U.S.C. 883, regarding 
use of U.S.-flag vessels in the transportation of oil between points 
within the United States, and with any applicable U.S. export control 
laws affecting the export of SPR petroleum will be considered to be a 
failure to comply with the terms of any contract containing these SSPs 
and may result in termination for default in accordance with Provision 
C.25. Purchasers who have failed to comply with the ``Jones Act'' or the 
export control laws in SPR sales may be found to be non-responsible in 
the evaluation of offers in subsequent sales under Provision B.22 of the 
SSPs. Those purchasers may also be subject to proceedings

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to make them ineligible for future awards in accordance with 10 CFR Part 
625.

                             C.3 [Reserved]

                      C.4 Environmental Compliance

    (a) SPR offerors must ensure that vessels used to transport SPR oil 
comply with all applicable statutes, including, among others, the Ports 
and Waterways Safety Act of 1972; the Port and Tanker Safety Act of 
1978; the Act to Prevent Pollution from Ships of 1980 (implementing 
Annexes I, II, and V of MARPOL 73/78), and the Oil Pollution Act of 
1990. Offerors also must ensure that vessels used to transport SPR oil 
comply with all applicable regulations, including 33 CFR parts 151, 153, 
155, 157, 159, and 160-169, and 46 CFR chapter I, subchapter D.
    (b) To transport SPR oil, a purchaser or the purchaser's 
subcontractors must use only those tank vessels for which the vessel's 
owner, operator, or demise charter has made a showing of financial 
responsibility under 33 CFR part 138, Financial Responsibility for Water 
Pollution (Vessels).
    (c) Failure of the purchaser or purchaser's subcontractor to comply 
with all applicable statutes and regulations in the transportation of 
SPR petroleum will be considered a failure to comply with the terms of 
any contract containing these SSPs, and may result in termination for 
default, unless, in accordance with Provision C.25, such failure was 
beyond the control and without the fault or negligence of the purchaser, 
its affiliates, or subcontractors.

               C.5 Delivery and Transportation Scheduling

    (a) Unless otherwise instructed in the notification of ASO, each 
purchaser shall submit a proposed vessel lifting program and/or pipeline 
delivery schedule to the SPR/PMO point of contact identified in the NS, 
no later than the fifteenth day prior to the earliest delivery date 
offered by the NS. The vessel lifting program shall specify the 
requested three-day loading window for each tanker and the quantity to 
be lifted. The pipeline schedule will specify the five day shipment 
ranges (i.e., day 1-5, 6-10, 11-15, etc.) for which deliveries are to be 
tendered to the pipeline and the quantity to be tendered for each date. 
In the event conflicting requests are received, preference will be given 
to such requests in descending order, the highest offered price first. 
The SPR/PMO will respond to each purchaser no later than the tenth day 
prior to the start of deliveries, either confirming the schedule as 
originally submitted or proposing alterations. The purchaser shall be 
deemed to have agreed to those alterations unless the purchaser requests 
the SPR/PMO to reconsider within two days after receipt of such 
alterations. The SPR/PMO will use its best efforts to accommodate such 
requests, but its decision following any such reconsideration shall be 
final and binding.
    (b) In order to expedite the scheduling process, at the time of 
submission of each vessel lifting program or pipeline delivery schedule, 
each purchaser shall provide the DOE Contracting Officer's 
Representative with a written notice of the intended destination for 
each cargo scheduled, if such destination is known at that time. For 
pipeline deliveries, the purchaser shall also include, if known, the 
name of each pipeline in the routing to the final destination.
    (c) Notwithstanding paragraph (a) of this provision, ASOs and 
purchasers may request early deliveries, i.e., deliveries commencing 
prior to the contractual delivery period. DOE will use its best efforts 
to honor such requests, unless unacceptable costs might be incurred or 
SPR schedules might be adversely affected or other circumstances make it 
unreasonable to honor such requests. DOE's decision following any such 
consideration for a change shall be final and binding. Requests accepted 
by DOE will be handled on a first-come, first-served basis, except that 
where conflicting requests are received on the same day, the highest-
priced offer will be given preference. Requests that include both a 
change in delivery method and an early delivery date may also be 
accommodated subject to Provision C.6. DOE may not be able to confirm 
requests for early deliveries until 24 hours prior to the delivery date.
    (d) Not withstanding paragraphs (a) and (c) of this provision, in no 
event will schedules be confirmed prior to award of contracts.

        C.6 Contract Modification--Alternate Delivery Line Items

    (a) A purchaser may request a change in delivery method after the 
issuance of the NA. Such requests may be made either orally (to be 
confirmed in writing within 24 hours) or in writing, but will require 
written modification of the contract by the Contracting Officer. Such 
modification shall be permitted by DOE, provided, in the sole judgment 
of DOE, the change is viewed as reasonable and would not interfere with 
the delivery plans of other purchasers, and further provided that the 
purchaser agrees to pay all increased costs incurred by DOE because of 
such modification.
    (b) Changes in delivery method will only be considered after the 
initial confirmation of schedules described in Provision C.5(a).

     C.7 Application Procedures for ``Jones Act'' and Construction 
                      Differential Subsidy Waivers

    (a) Unless otherwise specified in the Notice of Sale, an ASO or 
purchaser seeking a waiver of the ``Jones Act'' should submit a request 
by letter or electronic means to: U.S. Bureau of Customs and Border 
Protection, Office of

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Regulations and Rulings, Chief, Entry Procedures and Carriers Branch, 
Washington, DC 20229, Telephone: (202) 572-8724.
    (b) A purchaser seeking a waiver to use a vessel built with a 
Construction Differential Subsidy should have the vessel owner submit a 
waiver request by letter or electronic means to: Associate Administrator 
for Ship Financial Assistance and Cargo Preference, Maritime 
Administration, U.S. Department of Transportation, 400 7th Street, SW., 
Washington, DC 20590.
    For speed and brevity, the request may incorporate by reference 
appropriate contents of any earlier ``Jones Act'' waiver request by the 
purchaser. Under 46 U.S.C. App. 1223, a hearing is also required for any 
intervenor, and a waiver may not be approved if it will result in unfair 
competition to any person, firm, or corporation operating exclusively in 
the coastwise or intercoastal service.
    (c) Copies of the Jones Act or CDS waiver requests should also be 
sent, as appropriate, to:

(1) Associate Administrator for Port, Intermodal and Environmental 
Activities, Maritime Administration, U.S. Department of Transportation, 
400 7th Street, SW., Washington, DC 20590.
(2) U.S. Department of Energy, ATTN: Deputy Assistant Secretary for 
Petroleum Reserves, FE-40, 1000 Independence Avenue, SW., Washington, DC 
20585.
(3) Contracting Officer, FE-4451, Strategic Petroleum Reserve Project 
Management Office, Acquisition and Sales Division, 900 Commerce Road 
East, New Orleans, LA 70123.

    (d) In addition to the addresses in paragraph (c), copies of the 
``Jones Act'' request should also be sent to: Office of the Under 
Secretary of Defense (Acquisition, Technology and Logistics), U.S. 
Department of Defense, Washington, DC 20301-3020.
    (e) Any request for waiver should include the following information:
    (1) Name, address and telephone number of requestor;
    (2) Purpose for which waiver is sought, e.g., to take delivery of so 
many barrels of SPR crude oil, with reference to the SPR NS number and 
the provisional or assigned contract number;
    (3) Name and flag of registry of vessel for which waiver is sought, 
if known at the time of waiver request, and the scheduled 3-day delivery 
window(s), if available, or delivery period applicable to the contract;
    (4) The intended number of voyages, including the ports for loading 
and discharging;
    (5) Estimated period of time for which vessel will be employed; and
    (6) Reason for not using qualified U.S.-flag vessel, including 
documentary evidence of good faith effort to obtain suitable U.S.-flag 
vessel and responses received from that effort. Such evidence would 
include copies of correspondence and telephone conversation summaries. 
Requests for waivers by electronic transmittals may reference such 
documentary evidence, with copies to be provided by mail, postmarked no 
more than one business day after the transmission requesting the waiver.
    (7) For waivers to use Construction Differential Subsidy vessels, 
the request must also contain a specific agreement for Construction 
Differential Subsidies payback pursuant to section 506 of the Merchant 
Marine Act of 1936 and must be signed by an official of the vessel owner 
authorized to make a payback commitment.
    (f) If there are shown to be ``Jones Act'' vessels available and in 
a position to meet the loading dates required, no waivers may be 
approved.
    (g) The names of any vessel(s) to be employed under a ``Jones Act'' 
waiver must be provided to the U.S. Bureau of Customs and Border 
Protection no later than 3 days prior to the beginning of the 3-day 
loading window scheduled in accordance with Provision C.5.

                      C.8 Vessel Loading Procedures

    (a) After notification of ASO, each ASO shall provide the SPR/PMO a 
proposed schedule of vessel loading windows in accordance with Provision 
C.5.
    (b) The length of the scheduled loading window shall be 3 days. If 
the purchaser schedules more than one window, the average quantity to be 
lifted during any single loading window will be no less than DOE's 
minimum lot quantity.
    (c) Tankships, ITBs, and self-propelled barges shall be capable of 
sustaining a minimum average load rate commensurate with receiving an 
entire full cargo within twenty-four (24) hours pumping time. Barges 
with a load rate of not less than 4,000 BPH shall be permitted at the 
Sun Terminal barge docks. With the consent of the SPR/PMO, lower loading 
rates and the use of barges at suitably equipped tankship docks at other 
terminals supporting the SPR may be permitted if such do not interfere 
with DOE's obligations to other parties.
    (d) At least 7 days in advance of the beginning of the scheduled 
loading window, the purchaser shall furnish the SPR/PMO with vessel 
nominations specifying:
    (i) Name and size of vessel or advice that the vessel is ``To Be 
Nominated'' at a later date (such date to be no later than 3 days before 
commencement of the loading window);
    (ii) Estimated date of arrival (to be narrowed to a firm date not 
later than 72 hours prior to the first day of the vessel's 3-day window, 
as provided in paragraph (f) of this provision);
    (iii) Quantity to be loaded and contract number; and

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    (iv) Other relevant information requested by the SPR/PMO including 
but not limited to ship's specifications, last three ports and cargoes, 
vessel owner/operator and flag, any known deficiencies, and on board 
quantities of cargo and slops.
    DOE will advise the purchaser, in writing, of the acceptance or 
rejection of the nominated vessel within 24 hours of such nomination. If 
no advice is furnished within 24 hours, the nomination will be firm. 
Once established, changes in such nomination details may be made only by 
mutual agreement of the parties, to be confirmed by DOE in writing. The 
purchaser shall be entitled to substitute another vessel of similar size 
for any vessel so nominated, subject to DOE's approval. DOE must be 
given at least 3 days' notice prior to the first day of the 3-day 
loading window of any such substitution. DOE shall make a reasonable 
effort to accept any nomination for which notice has not been given in 
strict accordance with this provision.
    (e) In the event the purchaser intends to use more than one vessel 
to take delivery of the contract quantity scheduled to be delivered 
during a loading window, the information in paragraphs (d) and (f) of 
this provision shall be provided for each vessel.
    (f) The vessel or purchaser shall notify the SPR/PMO of the expected 
day of arrival 72 hours before the beginning of his scheduled 3-day 
loading window. This notice establishes the firm agreed-upon date of 
arrival which is the 1-day window for the purposes of vessel demurrage 
(see Provision C.9). If the purchaser fails to make notification of the 
expected day of arrival, the 1-day window will be deemed to be the 
middle day of the scheduled 3-day window. The vessel shall also notify 
the SPR/PMO of the expected hour of arrival 72, 48 and 24 hours in 
advance of arrival, and after the first notice, to advise of any 
variation of more than 4 hours. With the first notification of the hour 
of arrival, the Master shall advise the SPR/PMO:
    (i) Cargo loading rate requested;
    (ii) Number, size, and material of vessel's manifold connections; 
and
    (iii) Defects in vessel or equipment affecting performance or 
maneuverability.
    (g) Notice of Readiness shall be tendered upon arrival at berth or 
at customary anchorage which is deemed to be any anchorage within 6 
hours vessel time to the SPR dock. The preferred anchorages are 
identified in Exhibit B. The Notice of Readiness shall be confirmed 
promptly in writing to the SPR/PMO and the terminal responsible for 
coordination of crude oil loading operations. Such notice shall be 
effective only if given during customary port operating hours. If notice 
is given after customary business hours of the port, it shall be 
effective as of the beginning of customary business hours on the next 
business day.
    (h) DOE shall use its best efforts to berth the purchaser's vessel 
as soon as possible after receipt of the Notice of Readiness.
    (i) Standard hose and fittings (American Standard Association 
standard connections) for loading shall be provided by DOE. Purchasers 
must arrange for line handling, deballasting, tug boat and pilot 
services, both for arrival and departure, through the terminal or ship's 
agent, and bear all costs associated with such services.
    (j) Tankships, ITBs, and self-propelled barges shall be allowed 
berth time of 36 hours. Barges shall be allowed berth time of three (3) 
hours plus the quotient determined by dividing the cargo size (gross 
standard volume barrels) by four thousand (4,000). Vessels loading cargo 
quantities in excess of 500,000 barrels shall be allowed berth time of 
36 hours plus 1 hour for each 20,000 barrels to be loaded in excess of 
500,000 barrels. Conditions of this provision excepted, however, the 
vessel shall not remain at berth more than 6 hours after completion of 
cargo loading unless hampered by tide or weather.
    (1) Berth time shall commence with the vessel's first line ashore 
and shall continue until loading of the vessel, or vessels in case more 
than one vessel is loaded, is completed and the last line is off. In 
addition, allowable berth time will be increased by the amount of any 
delay occurring subsequent to the commencement of berth time and 
resulting from causes due to adverse weather, labor disputes, force 
majeure and the like, decisions made by port authorities affecting 
loading operations, actions of DOE, its contractors and agents resulting 
in delay of loading operations (providing this action does not arise 
through the fault of the purchaser or purchaser's agent), and customs 
and immigration clearance. The time required by the vessel to discharge 
oily wastes or to moor multiple vessels sequentially into berth shall 
count as used berth time.
    (2) For all hours of berth time used by the vessel in excess of 
allowable berth time as provided for in this provision, the purchaser 
shall be liable for dock demurrage and also shall be subject to the 
conditions of Provision C.11.

                    C.9 Vessel Laytime and Demurrage

    (a) The laytime allowed DOE for handling of the purchaser's vessel 
shall be 36 running hours. For vessels with cargo quantities in excess 
of 500,000 barrels, laytime shall be 36 running hours plus 1 hour for 
each 20,000 barrels of cargo to be loaded in excess of 500,000 barrels. 
Vessel laytime shall commence when the vessel is moored alongside (all 
fast) the loading berth or 6 hours after receipt of a Notice of 
Readiness, whichever occurs first. It shall continue 24 hours per day, 
seven days per week without interruption from its commencement until 
loading of the

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vessel is completed and cargo hoses or loading arms are disconnected. 
Any delay to the vessel in reaching berth caused by the fault or 
negligence of the vessel or purchaser, delay due to breakdown or 
inability of the vessel's facilities to load, decisions made by vessel 
owners or operators or by port authorities affecting loading operations, 
discharge of ballast or slops, customs and immigration clearance, 
weather, labor disputes, force majeure and the like shall not count as 
used laytime. In addition, movement in roads shall not count as used 
laytime.
    (b) If the vessel is tendered for loading on a date earlier than the 
firm agreed-upon arrival date, established in accordance with Provision 
C.8, and other vessels are loading or have already been scheduled for 
loading prior to the purchaser's vessel, the purchaser's vessel shall 
await its turn and vessel laytime shall not commence until the vessel 
moors alongside (all fast), or at 0600 hours local time on the firm 
agreed-upon date of arrival, whichever occurs first. If the vessel is 
tendered for loading later than 2400 hours on the firm agreed-upon date 
of arrival, DOE will use its best efforts to have the vessel loaded as 
soon as possible in its proper turn with other scheduled vessels, under 
the circumstances prevailing at the time. In such instances, vessel 
laytime shall commence when the vessel moors alongside (all fast).
    (c) For all hours or any part thereof of vessel laytime that elapse 
in excess of the allowed vessel laytime for loading provided for in this 
provision, demurrage shall be paid by DOE, for U.S.-flag vessels, at the 
lesser of the demurrage rate in the tanker voyage or charter party 
agreement, or the most recently available United States Freight Rate 
Average (USFRA) for a hypothetical tanker with a deadweight in long tons 
equal to the weight in long tons of the petroleum loaded, multiplied by 
the most recent edition of the American Tanker Rate Schedule rate for 
such hypothetical tanker and voyage. For foreign flag vessels, demurrage 
shall be as determined in this provision, except that the London Tanker 
Brokers' Panel Average Freight Rate Assessment (AFRA) and most recent 
edition of the New Worldwide Tanker Nominal Freight Scale ``Worldscale'' 
shall be used as appropriate, if less than the charter party rate. For 
all foreign flag vessel loadings that commence during a particular 
calendar month, the applicable AFRA shall be the one that is determined 
on the basis of freight assessments for the period ended on the 15th day 
of the preceding month. The demurrage rate for barges will be the lesser 
of the hourly rate contained in the charter of a chartered barge, or a 
rate determined by DOE as a fair rate under prevailing conditions. If 
demurrage is incurred because of breakdown of machinery or equipment of 
DOE or its contractors (other than the purchaser), the rate of demurrage 
shall be reduced to one-half the rate stipulated herein per running hour 
and pro rata of such reduced rate for part of an hour for demurrage so 
incurred. Demurrage payable by DOE, however, shall in no event exceed 
the actual demurrage expense incurred by the purchaser as the result of 
the delay.
    (d) In the event the purchaser is using more than one vessel to load 
the contract quantity scheduled to be delivered during a single loading 
window, the terms of this provision and the Government's liability for 
demurrage apply only to the first vessel presenting its Notice of 
Readiness in accordance with (a) of this provision.
    (e) The primary source document and official record for demurrage 
calculations is the SPRCODR (see Provision C.19).

                 C.10 Vessel Loading Expedition Options

    (a) Notwithstanding Provision C.8(j)(1), in order to avoid 
disruption in the SPR distribution process, the Government may limit 
berthing time for any vessel receiving SPR petroleum to that period 
required for loading operations and the physical berthing/unberthing of 
the vessel. At the direction of the Government, activities not 
associated with the physical loading of the vessel (e.g., preparing 
documentation, gauging, sampling, etc.) may be required to be 
accomplished away from the berth. Time consumed by these activities will 
not be for the Government's account. If berthing time is to be 
restricted, the Government will so advise the vessel prior to berthing 
of the vessel.
    (b) In addition to paragraph (a) of this provision, the Government 
may limit vessels calling at SPR terminals to a total of 24 hours for 
petroleum transfer operations. In such an event, the loading will be 
considered completed if the vessel has loaded 95 percent or more of the 
nominated quantity within a total of 24 hours. If the vessel has loaded 
less than 95 percent of its nominated quantity, then Provision C.11 
shall apply.

            C.11 Purchaser Liability for Excessive Berth Time

    The Government reserves the right to direct a vessel loading SPR 
petroleum at a delivery point specified in the NS, to vacate its SPR 
berth, and absorb all costs associated with this movement, should such 
vessel, through its operational inability to receive oil at the average 
rates provided for in Provision C.8, cause the berth to be unavailable 
for an already scheduled follow-on vessel. Furthermore, should a 
breakdown of the vessel's propulsion system prevent its getting under 
way on its own power, the Government may cause the vessel to be removed 
from the berth with all costs to be borne by the purchaser.

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                    C.12 Pipeline Delivery Procedures

    (a) The purchaser shall nominate his delivery requirements to the 
pipeline carrier, to include the total quantity to be moved and his 
preferred five-day shipment range(s) as specified in C.5. The purchaser 
shall provide confirmation of the carrier's acceptance of the nominated 
quantity (in thousands of barrels per day) and shipment ranges to the 
SPR/PMO no later than the last day of the month preceding the month of 
delivery. The purchaser shall also furnish the SPR/PMO with the name, 
telephone number, and e-mail address of the pipeline point of contact 
with whom the SPR/PMO should coordinate the delivery.
    (b) The SPR/PMO will ensure oil is made available to the carrier 
within the shipment date range(s) established in accordance with 
Provision C.5. Once established, the pipeline delivery schedule can only 
be changed with SPR/PMO's prior written consent. Should the schedule 
established in accordance with (a) of this provision vary from the 
original schedule established in accordance with Provision C.5, the 
Government will provide its best efforts to accommodate this revised 
schedule but will incur no liability for failure to provide delivery on 
the dates requested.
    (c) Three days prior to the beginning of any five-day shipping range 
in which the purchaser is to receive delivery, the purchaser shall 
furnish the SPR/PMO the firm date within that range on which the 
movement is to commence, the quantity to be moved, and the contract 
number.
    (d) The date of delivery, which will be recorded on the CODR (see 
Provision C.19), is the date delivery commenced to the custody transfer 
point, as identified in the NS.
    (e) The purchaser shall receive pipeline deliveries at a minimum 
average rate of 100,000 barrels per day. The purchaser is solely 
responsible for making the necessary arrangements with pipeline 
carriers, including storage, to achieve the stated minimum.

                       C.13 Title and Risk of Loss

    Unless otherwise provided in the NS, title to and risk of loss for 
SPR petroleum will pass to the purchaser at the delivery point as 
follows:
    (a) For vessel shipment--when the petroleum passes from the dock 
loading equipment connections to the vessel's permanent hose connection.
    (b) For pipeline shipment--as identified in the NS.

                      C.14 Acceptance of Crude Oil

    (a) When practical, the NS shall update the SPR crude oil stream 
characteristics shown in Exhibit A, SPR Crude Oil Comprehensive 
Analysis. However, the purchaser shall accept the crude oil delivered 
regardless of characteristics. Except as provided in this provision, DOE 
assumes no responsibility for deviations in quality.
    (b) In the event that the crude oil stream delivered both has a 
total sulfur content (by weight) in excess of 2.0 percent if a sour 
crude oil stream, or 0.50 percent if a sweet crude oil stream, and, in 
addition, has an API gravity less than 28[deg]API if a sour crude oil 
stream, or 32[deg]API if a sweet crude oil stream, the purchaser shall 
accept the crude oil delivered and either pay the contract price 
adjusted in accordance with Provision C.16, or request negotiation of 
the contract price. Unless the purchaser submits a written request for 
negotiation of the contract price to the Contracting Officer within 10 
days from the date of invoice, the purchaser shall be deemed to have 
accepted the adjustment of the price in accordance with Provision C.16. 
Should the purchaser request a negotiation of the price and the parties 
be unable to agree as to that price, the dispute shall be settled in 
accordance with Provision C.32.

                C.15 Delivery Acceptance and Verification

    (a) The purchaser shall provide written confirmation to SPR/PMO, no 
later than 72 hours prior to the scheduled date of the first delivery 
under the contract, the name(s) of the authorized agent(s) given 
signature authority to sign/endorse the delivery documentation (CODR, 
etc.) on the purchaser's behalf. Any changes to this listing of names 
must be provided to the SPR/PMO in writing no later than 72 hours before 
the first delivery to which such change applies. In the event that an 
independent surveyor (separate from the authorized signatory agent) is 
appointed by the purchaser to witness the delivery operation (gauging, 
sampling, testing, etc.), written notification must be provided to SPR/
PMO, no later than 72 hours prior to the scheduled date of each 
applicable cargo delivery.
    (b) Absence of the provision of the name(s) of bona fide agent(s) 
and the signature of such agent on the delivery documentation 
constitutes acceptance of the delivery quantity and quality as 
determined by DOE and/or its agents.

            C.16 Price Adjustments for Quality Differentials

    (a) The NS will specify quality price adjustments applicable to the 
crude oil streams offered for sale. Unless otherwise specified by the 
NS, quality price adjustments will be applied only to the amount of 
variation by which the API gravity of the crude oil delivered differs by 
more than plus or minus five-tenths of one degree API (0.5[deg]API) from the API gravity of the crude oil 
stream contracted for as published in the NS.

[[Page 300]]

    (b) Price adjustments for SPR crude oil are expected to be similar 
to one or more commercial crude oil postings for equivalent quality 
crude oil. The contract price per barrel shall be increased by that 
amount if the API gravity of the crude oil delivered exceeds the 
published API gravity by more than 0.5[deg]API and decreased by that 
amount if the API gravity of the crude oil delivered falls below the 
published API gravity by more than 0.5[deg]API.

                      C.17 Determination of Quality

    (a) The quality of the crude oil delivered to the purchaser will be 
determined from samples taken from the delivery tanks in accordance with 
API Manual of Petroleum Measurement Standards, Chapter 8.1, Manual 
Sampling of Petroleum and Petroleum Products (ASTM D4057), latest 
edition; or from a representative sample collected by an automatic 
sampler whose performance has been proven in accordance with the API 
Manual of Petroleum Measurement Standards, Chapter 8.2, Automatic 
Sampling of Petroleum and Petroleum Products (ASTM D4177), latest 
edition. Preference will be given to samples collected by means of an 
automatic sampler when such a system is available and operational. Tests 
to be performed by DOE or its authorized contractor are:

                         (1) Sediment and Water

    Primary methods: API Manual of Petroleum Measurement Standards, 
Chapter 10.1, Determination of Sediment in Crude Oils and Fuel Oils by 
the Extraction Method (ASTM D473) (IP53), latest edition; or API Manual 
of Petroleum Measurement Standards, Chapter 10.8, Sediment in Crude Oil 
by Membrane Filtration (ASTM D4807), latest edition; and API Manual of 
Petroleum Measurement Standards, Chapter 10.2, Determination of Water in 
Crude Oil by Distillation (ASTM D4006) (IP358), latest edition; or API 
Manual of Petroleum Measurement Standards, Chapter 10.9, Water in Crude 
Oil by Coulometric Karl Fischer Titration (ASTM D4928) (IP 386), latest 
edition.
    Alternate methods: API Manual of Petroleum Measurement Standards, 
Chapter 10.3, Determination of Water and Sediment in Crude Oil by the 
Centrifuge Method (Laboratory Procedure) (ASTM D4007) (IP 359), latest 
edition.

                               (2) Sulfur

    Primary method: ASTM D4294, Sulfur in Petroleum Products by Energy-
Dispersive X-ray Fluorescence Spectrometry, latest edition.
    Alternate method: ASTM D2622, Sulfur in Petroleum Products by 
Wavelength Dispersive X-ray Fluorescence Spectrometry.

                             (3) API Gravity

    Primary methods: API Manual of Petroleum Measurement Standards, 
Chapter 9.1, Density, Relative Density (Specific Gravity), or API 
Gravity of Crude Petroleum and Liquid Petroleum Products by Hydrometer 
Method (ASTM D1298) (IP 160), latest edition; or Density and Relative 
Density of Crude Oils by Digital Density Analyzer (ASTM D5002), latest 
edition.
    Alternate method: API Gravity of Crude Petroleum and Petroleum 
Products (Hydrometer Method) (ASTM D287), latest edition.
    To the maximum extent practicable, the primary methods will be used 
for determination of SPR crude oil quality characteristics. However, 
because of conditions prevailing at the time of delivery, it may be 
necessary to use alternate methods of test for one or more of the 
quality characteristics. The Government's test results will be binding 
in any dispute over quality characteristics of SPR petroleum.
    (b) The purchaser or his representative may arrange to witness and 
verify testing simultaneously with the U.S. government representative. 
Such services, however, will be for the account of the purchaser. Any 
disputes will be settled in accordance with Provision C.32. Should the 
purchaser opt not to witness the testing, then the Government findings 
will be binding on the purchaser.

                     C.18 Determination of Quantity

    (a) The quantity of crude oil delivered to the purchaser will be 
determined by opening and closing tank gauges with adjustment for 
opening and closing free water and sediment and water as determined from 
shore tank samples where an automatic sampler is not available, or 
delivery meter reports. All volumetric measurements will be corrected to 
net standard volume in barrels at 60 [deg]F, using the API Manual of 
Petroleum Measurement Standards, Chapter 11.1, Volume 1, Volume 
Correction Factors (ASTM D1250) (IP 200); Table 5A--Generalized Crude 
Oils, Correction of Observed API Gravity to API Gravity at 60 [deg]F; 
Table 6A--Generalized Crude Oils, Correction of Volume to 60 [deg]F 
Against API Gravity at 60 [deg]F, latest edition, and by deducting the 
tanks' free water, and the entrained sediment and water as determined by 
the testing of composite all-levels samples taken from the delivery 
tanks; or by deducting the sediment and water as determined by testing a 
representative portion of the sample collected by a certified automatic 
sampler, and also corrected by the applicable pressure correction factor 
and meter factor.
    (b) The quantity measurements shall be performed and certified by 
the DOE contractor responsible for delivery operations,

[[Page 301]]

and witnessed by the U.S. government representative at the delivery 
point. The purchaser shall have the right to have representatives 
present at the gauging/metering, sampling, and testing. Should the 
purchaser arrange for additional inspection services, such services will 
be for the account of the purchaser. Any disputes shall be settled in 
accordance with Provision C.32. Should the purchaser not arrange for 
additional services, then DOE's quantity determination shall be binding 
on the purchaser.

                       C.19 Delivery Documentation

    The quantity and quality determination shall be documented on the 
SPR/PMO Crude Oil Delivery Report (SPRCODR), SPRPMO-F-6110.2-14b (Rev 8/
91) (see Exhibit E for copy of this form). The SPRCODR will be signed by 
the purchaser's agent to acknowledge receipt of the quantity and quality 
of crude oil indicated. In addition, for vessel deliveries, the time 
statement on the SPRCODR will be signed by the vessel's Master when 
loading is complete. Copies of the completed SPRCODR, with applicable 
supporting documentation (i.e., metering or tank gauging tickets and 
appropriate calculation worksheets), will be furnished to the purchaser 
and/or the purchaser's authorized representative after completion of 
delivery. They will serve as the basis for invoicing and/or 
reconciliation invoicing for the sale of petroleum as well as for any 
associated services that may be provided.

                          C.20 Contract Amounts

    The contract quantities and dollar value stated in the NA are 
estimates. The per barrel unit price is subject to adjustment due to 
variation in the API gravity from the published characteristics, changes 
in delivery mode and price index values, if applicable. In addition, due 
to conditions of vessel loading and shipping or pipeline transmission, 
the quantity actually delivered may vary by 10 
percent for each shipment. However, a purchaser is not required to 
engage additional transportation capacity if sufficient capacity to take 
delivery of at least 90 percent of the contract quantity has been 
engaged.

              C.21 Payment and Performance Letter of Credit

    (a) Within five business days of receipt of notification of 
Apparently Successful Offeror, the Purchaser must provide to the 
Contracting Officer an ``Irrevocable Standby Letter of Credit'' 
established in favor of the United States Department of Energy equal to 
100 percent of the contract awarded value and containing the substantive 
provisions set out in Exhibit D. The purchaser must furnish an 
acceptable letter of credit before DOE will execute the NA. The letter 
of credit MUST NOT VARY IN SUBSTANCE from the sample at Exhibit D. If 
the letter of credit contains any provisions at variance with Exhibit D 
or fails to include any provisions contained in Exhibit D, nonconforming 
provisions must be deleted and missing substantive provisions must be 
added or the letter of credit will not be accepted. The letter of credit 
must be effective on or before the first delivery under the contract and 
remain in effect for a period of 120 days, must permit multiple partial 
drawings, and must contain the contract number. The original of the 
letter of credit must be sent to the Contracting Officer.
    (b) The letter of credit must be issued by a depository institution 
located in and authorized to do business in any state of the United 
States or the District of Columbia, and authorized to issue letters of 
credit by the banking laws of the United States or any state of the 
United States or the District of Columbia. The depository institution 
must be an account holder with the Federal Reserve Banking system and a 
participant (on-line) in the Fed's Fedwire Deposit System Network funds 
transfer system. The issuing bank must provide documentation indicating 
that the person signing the letter of credit is authorized to do so, in 
the form of corporate minutes, the Authorized Signature List, or the 
General Resolution of Signature Authority.
    (c) All letter of credit costs will be borne by the purchaser.
    (d) The letter of credit must be maintained at 100 percent of the 
contract value of the petroleum remaining to be delivered as well as 
delivered quantities for which payment has not been remitted, plus any 
other charges owed to the Government under the contract. In the event 
the letter of credit falls below the level specified, or at the 
discretion of the Contracting Officer must be increased because of the 
effect of the price indexing mechanism provided for in Provision B.2, 
DOE reserves the right to demand the purchaser modify the letter of 
credit to a level deemed sufficient by the Contracting Officer. The 
purchaser shall make such modification within two business days of being 
notified by the Contracting Officer by express mail or electronic means. 
The purchaser is deemed to have received such notification the next 
business day after its dispatch. If such modification is not made within 
two days after purchaser is deemed to have received the notice, the 
Contracting Officer may, on the 3rd business day, without prior notice 
to the purchaser, withhold deliveries in whole or in part under the 
contract and/or terminate the contract in whole or in part under 
Provision C.25.
    (e) Within 30 calendar days after final payment under the contract, 
the Contracting Officer shall authorize the cancellation of the letter 
of credit and shall return it to the

[[Page 302]]

bank or financial institution issuing the letter of credit. A copy of 
the notice of cancellation will be provided to the purchaser.

                        C.22 Billing and Payment

    (a) The Government will invoice the Purchaser at the conclusion of 
each delivery.
    (b) Payment is due in full on the 20th of the month following each 
delivery month. Should the 20th of the month fall on a Saturday, Sunday, 
or Federal holiday, payment will be due and payable in full on the last 
business day preceding the 20th of the month.
    (c) If an invoice is not paid in full, the Government may provide 
the Purchaser oral or written notification that Purchaser is delinquent 
in its payments; draw against the letter of credit for all quantities 
for which unpaid invoices are outstanding; withhold all or any part of 
future deliveries under the contract; and/or terminate the contract, in 
whole or in part, in accordance with Provision C.25.
    (d) In the event that the bank refuses to honor the draft against 
the letter of credit, the purchaser shall be responsible for paying the 
principal and any interest due (see Provision C.24) from the due date.

                         C.23 Method of Payments

    (a) All amounts payable by the purchaser shall be paid by either:
    (1) Deposit to the account of the U.S. Treasury by wire transfer of 
funds over the Fedwire Deposit System Network. The information to be 
included in each wire transfer will be provided in the NS.
    (2) Electronic funds transfer through the Automated Clearing House 
(ACH) network, using the Federal Remittance Express Program. The 
information to be included in each transfer will be provided in the NS.
    All wire deposit electronic funds transfer costs will be borne by 
the purchaser.
    (b) If the purchaser disagrees with the amounts invoiced by the 
Government, the purchaser shall immediately pay the amount invoiced, and 
notify the Contracting Officer of the basis for its disagreement. The 
Contracting Officer will receive and act upon any such objection. 
Failure to agree to any adjustment shall be a dispute, and a purchaser 
shall file a claim promptly in accordance with Provision C.32.
    (c) DOE may designate another place, different timing, or another 
method of payment after reasonable written notice to the purchaser.
    (d) Notwithstanding any other contract provision, DOE may via a 
draft message request a wire transfer of funds against the standby 
letter of credit at any time for payment of monies due under the 
contract and remaining unpaid in violation of the terms of the contract. 
These would include but not be limited to interest, liquidated damages, 
demurrage, amounts owing for any services provided under the contract, 
and the difference between the contract price and price received on the 
resale of undelivered petroleum as defined in Provision C.25. If the 
invoice is for delinquent payments, interest shall accrue from the 
payment due date.
    (e) No payment due DOE hereunder shall be subject to reduction or 
set-off for any claim of any kind against the United States arising 
independently of the contract.

                              C.24 Interest

    (a) Amounts due and payable by the purchaser or its bank that are 
not paid in accordance with the provisions governing such payments shall 
bear interest from the date due until the date payment is received by 
the Government.
    (b) Interest shall be computed on a daily basis. The interest rate 
shall be in accordance with the Current Value of Funds rate as 
established by the Department of the Treasury in accordance with the 
Debt Collection Improvement Act of 1997 and published periodically in 
Bulletins to the Treasury Fiscal Requirements Manual and in the Federal 
Register.

                            C.25 Termination

    (a) Immediate termination.
    (1) The Contracting Officer may terminate this contract in whole or 
in part, without liability of DOE, by written notice to the purchaser 
effective upon its being deposited in the U.S. Postal System addressed 
to the purchaser as provided in Provision C.31 in the event that the 
purchaser either notifies the Contracting Officer that it will not be 
able to accept, or fails to accept, any delivery line item in accordance 
with the terms of the contract. Such notice shall invite the purchaser 
to submit information to the Contracting Officer as to the reasons for 
the failure to accept the delivery line item in accordance with the 
terms of the contract.
    (2) Within 10 business days after the issuance of the notice of 
termination, the Contracting Officer may determine that such termination 
was a termination for default under paragraph (b)(1)(ii) of this 
provision. In the absence of information which persuades the Contracting 
Officer that the purchaser's failure to accept the delivery line item 
was excusable, the fact of such failure may be the basis for the 
Contracting Officer determining the purchaser to be in default, without 
first determining under paragraphs (b)(2) and (b)(3) whether such 
failure was excusable under the terms of the contract. The Contracting 
Officer shall promptly give the purchaser written notice of such 
determination.

[[Page 303]]

    (3) Any immediate termination other than one determined to be a 
termination for default in accordance with paragraph (a)(2) and 
paragraph (b) of this provision shall be a termination for the 
convenience of DOE without liability of the Government.
    (b) Termination for Default.
    (1) Subject to the provisions of paragraphs (b)(2) and (b)(3), the 
Contracting Officer may terminate the contract in whole or in part for 
purchaser default, without liability of DOE, by written notice to the 
purchaser, effective upon its being deposited in the U.S. Postal System, 
addressed to the purchaser as provided in Provision C.31 in the event 
that:
    (i) The Government does not receive payment in accordance with any 
payment provision of the contract;
    (ii) The purchaser fails to accept delivery of petroleum in 
accordance with the terms of the contract; or
    (iii) The purchaser fails to comply with any other term or condition 
of the contract within 5 business days after the purchaser is deemed to 
have received written notice of such failure from the Contracting 
Officer.
    (2) Except with respect to defaults of subcontractors, the purchaser 
shall not be determined to be in default or be charged with any 
liability to DOE under circumstances which prevent the purchaser's 
acceptance of delivery hereunder due to causes beyond the control and 
without the fault or negligence of the purchaser as determined by the 
Contracting Officer. Such causes shall include but are not limited to:
    (i) Acts of God or the public enemy;
    (ii) Acts of the Government acting in its sovereign or contractual 
capacity;
    (iii) Fires, floods, earthquakes, explosions, unusually severe 
weather, or other catastrophes; or
    (iv) Strikes.
    (3) If the failure to perform is caused by the default of a 
subcontractor, the purchaser shall not be determined to be in default or 
to be liable for any excess costs for failure to perform, unless the 
supplies or services to be furnished by the subcontractor were 
obtainable from other sources in sufficient time to permit the purchaser 
to meet the delivery schedule, if:
    (i) Such default arises out of causes beyond the control of the 
purchaser and its subcontractor, and without the fault or negligence of 
either of them; or
    (ii) Such default arises out of causes within the control of a 
transportation subcontractor, not an affiliate of the purchaser, hired 
to transport the purchaser's petroleum by vessel or pipeline, and such 
causes are beyond the purchaser's control, without the fault or 
negligence of the purchaser, and notwithstanding the best efforts of the 
purchaser to avoid default.
    (4) In the event that the contract is terminated in whole or in part 
for default, the purchaser shall be liable to DOE for:
    (i) The difference between the contract price on the contract 
termination date and any lesser price the Contracting Officer obtained 
upon resale of the petroleum; and
    (ii) Liquidated damages as specified in Provision C.27 as fixed, 
agreed, liquidated damages for each day of delay until the petroleum is 
delivered to a purchaser under either a resolicitation for the sale of 
the quantities of oil defaulted on, or an NS issued after the date of 
default that specifies that it is for the sale of quantities of oil 
defaulted on. In no event shall liquidated damages be assessed for more 
than 30 days.
    (5) In the event that the Government exercises its right of 
termination for default, and it is later determined that the purchaser's 
failure to perform was excused in accordance with paragraphs (2) and 
(3), the rights and obligations of the parties shall be the same as if 
such termination was a termination for convenience without liability of 
the Government under paragraph (c).
    (c) Termination for convenience.
    (1) In addition to any other right or remedy provided for in the 
contract, the Government may terminate this contract at any time in 
whole or in part whenever the Contracting Officer shall determine that 
such termination is in the best interest of the Government. Such 
termination shall be without liability of the Government if such 
termination arises out of causes specified in paragraphs (a)(1) or 
(b)(1) of this provision, acts of the Government in its sovereign 
capacity, or causes beyond the control and without the fault or 
negligence of the Government, its contractors (other than the purchaser 
of SPR crude oil under this contract) and agents. For any other 
termination for convenience, the Government shall be liable for such 
reasonable costs incurred by the purchaser in preparing to perform the 
contract, but under no circumstances shall the Government be liable for 
consequential damages or lost profits as the result of such termination.
    (2) The purchaser will be given immediate written notice of any 
decrease of petroleum deliveries greater than 10 percent, or of 
termination, under this paragraph (c). The termination or reduction 
shall be effective upon its notice being deposited in the U.S. Postal 
System unless otherwise specified in the notice. The purchaser is deemed 
to have received a mailed notice on the second day after its dispatch 
and an electronic or express mail notice on the day after dispatch.
    (3) Termination for the convenience of the Government shall not 
excuse the purchaser from liquidated damages accruing prior to the 
effective date of the termination.
    (d) Nothing herein contained shall limit the Government in the 
enforcement of any

[[Page 304]]

legal or equitable remedy that it might otherwise have, and a waiver of 
any particular cause for termination shall not prevent termination for 
the same cause occurring at any other time or for any other cause.
    (e) In the event that the Government exercises its right of 
termination, as provided in paragraphs (a), (b), or (c)(1) of this 
provision, the Contracting Officer may sell any undelivered petroleum 
under such terms and conditions as he deems appropriate.
    (f) DOE's ability to deliver petroleum on the date on which the 
defaulted purchaser was scheduled to accept delivery, under another 
contract awarded prior to the date of the contractor's default, shall 
not excuse a purchaser that has been terminated for default from either 
liquidated damages or the difference between the contract price and any 
lesser price obtained on resale.
    (g) Any disagreement with respect to the amount due the Government 
for either resale costs or liquidated damages shall be deemed to be a 
dispute and will be decided by the Contracting Officer pursuant to 
Provision C.32.
    (h) The term ``subcontractor'' or ``subcontractors'' includes 
subcontractors at any tier.

                     C.26 Other Government Remedies

    (a) The Government's rights under this provision are in addition to 
any other right or remedy available to it by law or by virtue of this 
contract.
    (b) The Government may, without liability on its part, withhold 
deliveries of petroleum under this contract or any other contract the 
purchaser may have with DOE if payment is not made in accordance with 
this contract.
    (c) If the purchaser fails to take delivery of petroleum in 
accordance with the delivery schedule developed under the terms of the 
contract, and such tardiness is not excused under the terms of Provision 
C.25, but the Government does not elect to terminate that item for 
default, the purchaser nonetheless shall be liable to the Government for 
liquidated damages in the amount established by Provision C.27 for each 
calendar day of delay or fraction thereof until such time as it accepts 
delivery of the petroleum. In no event shall such damages be assessed 
for longer than 30 days. No purchaser that fails to perform in 
accordance with the terms of the contract shall be excused from 
liability for liquidated damages by virtue of the fact that DOE is able 
to deliver petroleum on the date on which the non-performing purchaser 
was scheduled to accept delivery, under another contract awarded prior 
to the date of default.

                         C.27 Liquidated Damages

    (a) In case of failure on the part of the purchaser to perform 
within the time fixed in the contract or any extension thereof, the 
purchaser shall pay to the Government liquidated damages in the amount 
of 1 percent of the contract price of the undelivered petroleum per 
calendar day of delay or fraction thereof in accordance with Provision 
C.25(b) and Provision C.26(c).
    (b) As provided in (a) of this provision, liquidated damages will be 
assessed for each day or fraction thereof a purchaser is late in 
accepting delivery of petroleum in accordance with this contract, unless 
such tardiness is excused under Provision C.25. For petroleum to be 
lifted by vessel, damages will be assessed in the event that the vessel 
has not commenced loading by 11:59 p.m. on the second day following the 
last day of the 3-day delivery window established under Provision C.5, 
unless the vessel has arrived in roads and its Master has presented a 
notice of readiness to the Government or its agents. Liquidated damages 
shall continue until the vessel presents its notice of readiness. For 
petroleum to be moved by pipeline, if delivery arrangements have not 
been made by the last day of the month prior to delivery, liquidated 
damages shall commence on the 3rd day of the delivery month until such 
delivery arrangements are completed; if delivery arrangements have been 
made, then liquidated damages shall begin on the 3rd day after the 
scheduled delivery date if delivery is not commenced and shall continue 
until delivery is commenced.
    (c) Any disagreement with respect to the amount of liquidated 
damages due the Government will be deemed to be a dispute and will be 
decided by the Contracting Officer pursuant to Provision C.32.

               C.28 Failure To Perform Under SPR Contracts

    In addition to the usual debarment procedures, 10 CFR 625.3 provides 
procedures to make purchasers that fail to perform in accordance with 
these provisions ineligible for future SPR contracts.

     C.29 Government Options in Case of Impossibility of Performance

    (a) In the event that DOE is unable to deliver petroleum contracted 
for to the purchaser due either to events beyond the control of the 
Government, including actions of the purchaser, or to acts of the 
Government, its agents, its contractors or subcontractors at any tier, 
the Government at its option may do either of the following:
    (1) Terminate for the convenience of the Government under Provision 
C.25; or
    (2) Offer different SPR crude oil streams or delivery times to the 
purchaser in substitution for those specified in the contract.

[[Page 305]]

    (b) In the event that a different SPR crude oil stream than 
originally contracted for is offered to the purchaser, the contract 
price will be negotiated between the parties. In no event shall the 
negotiated price be less than the minimum acceptable price established 
for the same or similar crude oil streams at the time of contract award.
    (c) DOE's obligation in such circumstances is to use its best 
efforts, and DOE under no circumstances shall be liable to the purchaser 
for damages arising from DOE's failure to offer alternate SPR crude oil 
streams or delivery times.
    (d) If the parties are unable to reach agreement as to price, crude 
oil streams or delivery times, DOE may terminate the contract for the 
convenience of the Government under Provision C.25.

                 C.30 Limitation of Government liability

    DOE's obligation under these SSPs and any resultant contract is to 
use its best efforts to perform in accordance therewith. The Government 
under no circumstances shall be liable thereunder to the purchaser for 
the conduct of the Government's contractors or subcontractors or for 
indirect, consequential, or special damages arising from its conduct, 
except as provided herein; neither shall the Government be liable 
thereunder to the purchaser for any damages due in whole or in part to 
causes beyond the control and without the fault or negligence of the 
Government, including but not restricted to, acts of God or public 
enemy, acts of the Government acting in its sovereign capacity, fires, 
floods, earthquakes, explosions, unusually severe weather, other 
catastrophes, or strikes.

                              C.31 Notices

    (a) Any notices required to be given by one party to the contract to 
the other in writing shall be forwarded to the addressee, prepaid, by 
U.S. registered, return receipt requested mail, express mail, or 
electronic means as provided in the NS. Parties shall give each other 
written notice of address changes.
    (b) Notices to the purchaser shall be forwarded to the purchaser's 
address as it appears in the offer and in the contract.
    (c) Notices to the Contracting Officer shall be forwarded to the 
following address: U.S. Department of Energy, Strategic Petroleum 
Reserve, Project Management Office, Acquisition and Sales Division, Mail 
Stop FE-4451, 900 Commerce Road East, New Orleans, Louisiana 70123.

                              C.32 Disputes

    (a) This contract is subject to the Contract Disputes Act of 1978 
(41 U.S.C. 601 et seq.). If a dispute arises relating to the contract, 
the purchaser may submit a claim to the Contracting Officer, who shall 
issue a written decision on the dispute in the manner specified in 48 
CFR 1-33.211.
    (b) ``Claim'' means:
    (1) A written request submitted to the Contracting Officer;
    (2) For payment of money, adjustment of contract terms, or other 
relief;
    (3) Which is in dispute or remains unresolved after a reasonable 
time for its review and disposition by the Government; and
    (4) For which a Contracting Officer's decision is demanded.
    (c) In the case of dispute requests or amendments to such requests 
for payment exceeding $50,000, the purchaser shall certify at the time 
of submission as a claim, as follows:

    I certify that the claim is made in good faith, that the supporting 
data are current, accurate and complete to the best of my knowledge and 
belief and that the amount requested accurately reflects the contract 
adjustment for which the purchaser believes the Government is liable.

Purchaser's Name
Signature
Title

    (d) The Government shall pay to the purchaser interest on the amount 
found due to the purchaser on claims submitted under this provision at 
the rate established by the Department of the Treasury from the date the 
amount is due until the Government makes payment. The Contract Disputes 
Act of 1978 and the Prompt Payment Act adopt the interest rate 
established by the Secretary of the Treasury under the Renegotiation Act 
as the basis for computing interest on money owed by the Government. 
This rate is published semi-annually in the Federal Register.
    (e) The purchaser shall pay to DOE interest on the amount found due 
to the Government and unpaid on claims submitted under this provision at 
the rate specified in Provision C.24 from the date the amount is due 
until the purchaser makes payment.
    (f) The decision of the Contracting Officer shall be final and 
conclusive and shall not be subject to review by any forum, tribunal, or 
Government agency unless an appeal or action is commenced within the 
times specified by the Contract Disputes Act of l978.
    (g) The purchaser shall comply with any decision of the Contracting 
Officer and at the direction of the Contracting Officer shall proceed 
diligently with performance of this contract pending final resolution of 
any request for relief, claim, appeal, or action related to this 
contract.

                             C.33 Assignment

    The purchaser shall not make or attempt to make any assignment of a 
contract that incorporates these SSPs or any interest therein contrary 
to the provisions of Federal

[[Page 306]]

law, including the Anti-Assignment Act (4l U.S.C. 15), which provides:
    No contract or order, or any interest therein, shall be transferred 
by the party to whom such contract or order is given to any other party, 
and any such transfer shall cause the annulment of the contract or order 
transferred, so far as the United States is concerned. All rights of 
action, however, for any breach of such contract by the contracting 
parties, are reserved to the United States.

                        C.34 Order of Precedence

    In the event of an inconsistency between the terms of the various 
parts of this contract, the inconsistency shall be resolved by giving 
precedence in the following order:
    (a) The NA and written modifications thereto;
    (b) The NS;
    (c) Those provisions of the SSPs made applicable to the contract by 
the NS;
    (d) Instructions provided in the Crude Oil Sales Offer Program; and
    (e) The successful offer.

                             C.35 Gratuities

    (a) The Government, by written notice to the purchaser, may 
terminate the right of the purchaser to proceed under this contract if 
it is found, after notice and hearing, by the Secretary of Energy or his 
duly authorized representative, that gratuities (in the form of 
entertainment, gifts, or otherwise) were offered by or given by the 
purchaser, or any agent or representative of the purchaser, to any 
officer or employee of the Government with a view toward securing a 
contract or securing favorable treatment with respect to the awarding, 
amending, or making of any determinations with respect to the performing 
of such contract; provided, that the existence of the facts upon which 
the Secretary of Energy or his duly authorized representative makes such 
findings shall be in issue and may be reviewed in any competent court.
    (b) In the event that this contract is terminated as provided in 
paragraph (a) hereof, the Government shall be entitled (1) to pursue the 
same remedies against the purchaser as it could pursue in the event of a 
breach of the contract by purchaser, and (2) as a penalty in addition to 
any other damages to which it may be entitled by law, to exemplary 
damages in an amount (as determined by the Secretary of Energy or his 
duly authorized representative) which shall not be less than three nor 
more than 10 times the cost incurred by the purchaser in providing any 
such gratuities to any such officer or employee.
    (c) The rights and remedies of the Government provided in this 
clause shall not be exclusive and are in addition to any other rights 
and remedies provided by law or under this contract.

                                Exhibits:

A--SPR Crude Oil Comprehensive Analysis
B--SPR Delivery Point Data
C--Offer Standby Letter of Credit
D--Payment and Performance Letter of Credit
E--Strategic Petroleum Reserve Crude Oil Delivery Report--SPRPMO-F-
          6110.2-14b 1/87 REV. 8/91

                   EXHIBIT B--SPR DELIVERY POINT DATA

                        SEAWAY FREEPORT TERMINAL

                      (Formerly Phillips Terminal)

    LOCATION: Brazoria County, Texas (three miles southwest of Freeport, 
Texas on the Old Brazos River, four miles from the sea buoy)
    CRUDE OIL STREAMS: Bryan Mound Sweet and Bryan Mound Sour.
    DELIVERY POINTS: Seaway Terminal marine dock facility number 2.
    MARINE DOCK FACILITIES AND VESSEL RESTRICTIONS:
    TANKSHIP DOCKS: 2 Docks: Nos. 2 and 3.

                             MAXIMUM LENGTH

    OVERALL (LOA): Docks 2 and 3--820 feet (up to 900 feet with pilot 
approval) during daylight and 615 feet during hours of darkness.
    MAXIMUM BEAM: Docks 2 and 3--145 feet.
    MAXIMUM DRAFT: Docks 2 and 3--42 feet salt water; subject to change 
due to weather and silting conditions.
    MAXIMUM AIR DRAFT: None.
    MAXIMUM DEADWEIGHT TONS (DWT): Dock Nos. 2 and 3 can accommodate up 
to 120,000 DWT if they meet other port restrictions. Maximum DWT is 
theoretical berth handling capability; however, purchasers are cautioned 
that varying harbor and channel physical constraints are the controlling 
factors as to vessel size, and they are responsible for confirming that 
proposed vessels can be accommodated.
    BARGE LOADING CAPABILITY: None.
    OILY WASTE RECEPTION FACILITIES: Facilities are available for oily 
bilge water and sludge wastes. Purchasers are responsible for making 
arrangements with the terminal and for bearing costs associated with 
such arrangements.
    CUSTOMARY ANCHORAGE: Freeport Harbor sea-buoy approximately 4.5 
miles from the terminal.

          SEAWAY TEXAS CITY TERMINAL (Formerly ARCO Texas City)

    LOCATION: Docks 11 and 12, Texas City Harbor, Galveston County, 
Texas.

[[Page 307]]

    CRUDE OIL STREAMS: Bryan Mound Sweet and Bryan Mound Sour.
    DELIVERY POINTS: Marine Docks (11 and 12) and connections to local 
commercial pipelines.
    MARINE DOCK FACILITIES AND VESSEL RESTRICTIONS:
    TANKSHIP DOCKS: 2 Docks: Nos. 11 and 12.

                             MAXIMUM LENGTH

    OVERALL (LOA): 1,020 feet. Maximum bow to manifold centerline 
distance is 468 feet.
    MAXIMUM BEAM: Dock 11--180 feet; Dock 12--220 feet.
    MAXIMUM DRAFT: 39.5 feet brackish water; subject to change due to 
weather and silting conditions.
    MAXIMUM AIR DRAFT: None.
    MAXIMUM DEADWEIGHT TONS (DWT): 150,000 DWT each. Terminal permission 
is required for less than 30,000 DWT or greater than 150,000 DWT. 
Vessels larger than 120,000 DWT are restricted to daylight transit. 
Purchasers are cautioned that varying harbor and channel physical 
constraints are the controlling factors as to vessel size, and they are 
responsible for confirming that proposed vessels can be accommodated.
    BARGE LOADING CAPABILITY: None.
    OILY WASTE RECEPTION FACILITIES: Facilities are available for oily 
bilge water and sludge wastes. Purchasers are responsible for making 
arrangements with the terminal and for bearing all costs associated with 
such arrangements.
    CUSTOMARY ANCHORAGE: Bolivar Roads (breakwater) or Galveston sea-
buoy.

                        SUNOCO LOGISTICS TERMINAL

    LOCATION: Nederland, Texas (on the Neches River at Smiths Bluff in 
southwest Texas, 47.6 nautical miles from the bar).
    CRUDE OIL STREAMS: West Hackberry Sweet and West Hackberry Sour.
    DELIVERY POINTS: Sun Terminal marine dock facility and Sun Terminal 
connections to local commercial pipelines.
    MARINE DOCK FACILITIES AND VESSEL RESTRICTIONS:
    TANKSHIP DOCKS: 5 Docks: Nos. 1, 2, 3, 4 and 5.

                             MAXIMUM LENGTH

    OVERALL (LOA): 1000 feet.
    MAXIMUM BEAM: 150 feet.
    MAXIMUM DRAFT: 40 feet fresh water.
    MAXIMUM AIR DRAFT: 136 feet.
    MAXIMUM DEADWEIGHT TONS (DWT): Maximum DWT at Dock No. 1 is 85,000 
DWT. Dock Nos. 2, 3, 4 and 5 can accommodate up to 150,000 DWT. Vessels 
larger than 85,000 DWT, 875 feet LOA, or 125 feet beam are restricted to 
daylight transit. Maximum DWT is theoretical berth handling capability; 
however, purchasers are cautioned that varying harbor and channel 
physical constraints are the controlling factors as to vessel size, and 
they are responsible for confirming that proposed vessels can be 
accommodated.
    BARGE LOADING CAPABILITY: 3 Barge Docks: A, B and C. Each is capable 
of handling barges up to 25,000 barrels capacity.
    OILY WASTE RECEPTION FACILITIES: Facilities are available for oily 
bilge water and sludge wastes. Purchasers are responsible for making 
arrangements with the terminal and for bearing costs associated with 
such arrangements.
    CUSTOMARY ANCHORAGE: South of Sabine Bar-Buoy. There is an 
additional anchorage at the Sabine Bar for vessels with draft of 39 feet 
of less.

           SHELL 22-INCH/DOE LAKE CHARLES PIPELINE CONNECTION

    LOCATION: Lake Charles Upper Junction, located in Section 36, 
Township 10 South, Range 10 West, Calcasieu Parish, (Lake Charles) 
Louisiana.
    CRUDE OIL STREAMS: West Hackberry Sweet and West Hackberry Sour.
    DELIVERY POINT: Shell 22-Inch/DOE Lake Charles Pipeline Connection.
    MARINE DISTRIBUTION
    FACILITIES: None.

                        SHELL SUGARLAND TERMINAL

    LOCATION: St. James Parish, Louisiana (30 miles southwest of Baton 
Rouge on the west bank of the Mississippi River at mile-marker 158.3).
    CRUDE OIL STREAMS: Bayou Choctaw Sweet and Bayou Choctaw Sour.
    DELIVERY POINTS: Sugarland Terminal marine dock facility and LOCAP 
and Capline Terminals (connections to Capline interstate pipeline system 
and local commercial pipelines).
    MARINE DOCK FACILITIES AND VESSEL RESTRICTIONS:
    TANKSHIP DOCKS: 2 Docks: Nos. 1 and 2.

                             MAXIMUM LENGTH

    OVERALL (LOA): 940 feet.
    MAXIMUM BEAM: None.
    MAXIMUM DRAFT: 45 feet fresh water.
    MAXIMUM AIR DRAFT: 153 feet less the river stage.
    MAXIMUM DEADWEIGHT TONS (DWT): 100,000 DWT. Maximum DWT is 
theoretical berth handling capability; however, purchasers are cautioned 
that varying harbor and channel physical constraints are the controlling 
factors as to vessel size, and they are responsible for confirming that 
proposed vessels can be accommodated.
    BARGE LOADING CAPABILITY: Dock 1.
    OILY WASTE RECEPTION FACILITIES: Facilities are available for oily 
bilge water and sludge wastes. Purchasers are responsible for making 
arrangements and for bearing all

[[Page 308]]

costs associated with such arrangements. Terminal can provide suitable 
contacts.
    CUSTOMARY ANCHORAGE: Grandview Reach approximately 11 miles from the 
terminal.

                        UNOCAL BEAUMONT TERMINAL

    LOCATION: Beaumont Terminal, located downstream south bank of the 
Neches River, approximately 8 miles SE of Beaumont, Texas.
    CRUDE OIL STREAMS: Big Hill Sweet and Big Hill Sour.
    DELIVERY POINTS: Unocal Beaumont Terminal No. 2 Crude Dock and 
connections to local commercial pipelines.
    MARINE DOCK FACILITIES AND VESSEL RESTRICTIONS:
    TANKSHIP DOCKS: 1 Dock (No. 2).

                             MAXIMUM LENGTH

    OVERALL (LOA): 1,020 feet.
    MAXIMUM BEAM: 150 feet.
    MAXIMUM DRAFT: 40 feet fresh water.
    MAXIMUM AIR DRAFT: 136 feet.
    MAXIMUM DEADWEIGHT TONS (DWT): Maximum DWT at Dock No. 2 is 150,000 
DWT. Vessels larger than 85,000 DWT, 875 feet LOA, or 125 feet beam are 
restricted to daylight transit. Maximum DWT is theoretical berth 
handling capability; however, purchasers are cautioned that varying 
harbor and channel physical constraints are the controlling factors as 
to vessel size and they are responsible for confirming that proposed 
vessels can be accommodated.
    BARGE LOADING CAPABILITY: None.
    OILY WASTE RECEPTION FACILITIES: Facilities are available for oily 
bilge water and sludge wastes. Purchasers are responsible for making 
arrangements with the terminal and for bearing costs associated with 
such arrangements.
    CUSTOMARY ANCHORAGE: South of Sabine Bar-Buoy. There is an 
additional anchorage at the Sabine Bar for vessels with draft of 39 feet 
or less.

                      SHELL 20-INCH PIPELINE (SPL)

    LOCATION: Jefferson County, Texas, Seven miles west and one mile 
north of FM 365 and Old West Port Arthur Road.
    CRUDE OIL STREAMS: Big Hill Sweet and Big Hill Sour.
    DELIVERY POINT: SPL East Houston Terminal, Exxon Junction 
(Channelview), Oil Tanking Junction.
    MARINE DISTRIBUTION FACILITIES: None.

                                EXHIBIT C

            SAMPLE--OFFER GUARANTEE STANDBY LETTER OF CREDIT

                             BANK LETTERHEAD

                  IRREVOCABLE STANDBY LETTER OF CREDIT

 Date:__________________________________________________________________

To: Acquisition and Sales Division, Mail Stop FE-4451, Strategic 
Petroleum Reserve, Project Management Office, U.S. Department of Energy, 
900 Commerce Road East, New Orleans, LA 70123

 AMOUNT OF LETTER OF CREDIT:____________________________________________
U.S. $ (----------------------------------)
 CONTRACTOR:____________________________________________________________
 NOTICE OF SALE NO:_____________________________________________________
 LETTER OF CREDIT NO:___________________________________________________
 EXPIRATION DATE:_______________________________________________________
 AMERICAN BANKERS ASSOCIATION (ABA) NO:_________________________________

    Gentlemen:
    We hereby establish in the U.S. Department of Energy's favor our 
irrevocable standby Letter of Credit effective immediately for the 
account of our customer in response to the above U.S. Department of 
Energy's Notice of Sale, including any amendments thereto, for the sale 
of Strategic Petroleum Reserve petroleum. This Letter of Credit expires 
60 days from the date set for receipt of offers.
    This letter of credit is available by your draft/s at sight, drawn 
on us and accompanied by a manually signed statement that the signer is 
an authorized representative of the Department of Energy, and the 
following statement:

    ``THIS DRAWING OF U.S. $-------------------- (--------------------) 
AGAINST YOUR LETTER OF CREDIT NUMBERED --------------------, DATED ----
----------------, IS DUE THE U.S. GOVERNMENT BECAUSE OF THE FAILURE OF 
(CONTRACTOR) TO HONOR ITS OFFER TO ENTER INTO A CONTRACT FOR THE 
PURCHASE OF PETROLEUM FROM THE STRATEGIC PETROLEUM RESERVE, IN 
ACCORDANCE WITH THE U.S. GOVERNMENT'S NOTICE OF SALE NO. --------------
------, INCLUDING ANY AMENDMENTS THERETO.''

    Drafts must be presented for payment on or before the expiration 
date of this Letter of Credit at our bank. The Government may make 
multiple drafts against this Letter of Credit.
    Upon receipt of the U.S. Department of Energy's demand by hand, mail 
express delivery, or other means, at our office located at ------------
--------, we will honor the demand and make payment, by 3 p.m. Eastern 
Time of the next business day following receipt of the demand, by either 
wire transfer

[[Page 309]]

of funds as a deposit to the account of the U.S. Treasury over the 
Fedwire Deposit System Network, or by electronic funds transfer through 
the Automated Clearing House Network, using the Federal Remittance 
Express Program. The information to be included in each transfer will be 
as provided in the above referenced Notice of Sale.
    This Letter of Credit is subject to the Uniform Customs and Practice 
for Documentary Credits (1993 Revision, International Chamber of 
Commerce Publication no. 500) and except as may be inconsistent 
therewith, to the Uniform Commercial Code in effect on the date of 
issuance of this Letter of Credit in the state in which the issuer's 
head office within the United States is located.
    We hereby agree with the drawers, endorsers and bona fide holders 
that all drafts drawn under and in compliance with the terms of this 
Letter of Credit will be duly honored upon presentation and delivery of 
the above documents for payment at our bank on or before the expiration 
date.
    Address all communications regarding this Letter of Credit to (name 
and phone number).
    Very truly yours,
________________________________________________________________________
(Authorized Signature)

________________________________________________________________________
(Typed Name and Title)

                 Instructions for Offer Letter of Credit

    1. The depository institution must be an account holder with the 
Federal Reserve Banking System and a participant (on line) in the Fed's 
Fedwire Deposit System Network funds transfer system.
    2. Letter of Credit must not vary in substance from this attachment. 
Provide a copy of this attachment to your bank.
    3. Banks shall fill in blanks except those in the drawing statement. 
The drawing statement is in bold print with double underlines for the 
blanks. Do not fill in double underlined blanks.
    4. The information to be included and format to be used either for a 
wire transfer as a deposit over the Fedwire Deposit System Network or 
electronic funds transfer through the Automated Clearing House network, 
using the Federal Remittance Express Program, will be provided in the 
Contract.
    5. Type name and title under authorized signature.

                                EXHIBIT D

            SAMPLE--PAYMENT AND PERFORMANCE LETTER OF CREDIT

                             BANK LETTERHEAD

                  IRREVOCABLE STANDBY LETTER OF CREDIT

 Date:__________________________________________________________________

To: Acquisition and Sales Division, Mail Stop FE-4451, Strategic 
Petroleum Reserve, Project Management Office, U.S. Department of Energy, 
900 Commerce Road East, New Orleans, LA 70123

 AMOUNT OF LETTER OF CREDIT U.S. $:_____________________________________
(----------------------------------)
 CONTRACTOR:____________________________________________________________
 CONTRACT NO:___________________________________________________________
 LETTER OF CREDIT NO:___________________________________________________
 EXPIRATION DATE:_______________________________________________________
 AMERICAN BANKERS ASSOCIATION (ABA) NO:_________________________________

    Gentlemen:
    We hereby establish in the U.S. Department of Energy's favor our 
irrevocable standby Letter of Credit effective immediately for the 
account of our customer's above contract with the U.S. Department of 
Energy for the sale of Strategic Petroleum Reserve petroleum.
    This letter of credit is available by your draft/s at sight, drawn 
on us and accompanied by a manually signed statement that the signer is 
an authorized representative of the Department of Energy, and one or 
both of the following statements:
    a. ``I HEREBY CERTIFY THAT THE UNITED STATES GOVERNMENT HAS 
DELIVERED CRUDE OIL UNDER THE TERMS OF CONTRACT NUMBER ----------------
---- AND THAT (CONTRACTOR) HAS NOT PAID UNDER THE TERMS OF THAT 
CONTRACT, AND AS A RESULT OWES THE U.S. GOVERNMENT
U.S. $----------------.''
    b. ``I HEREBY CERTIFY THAT (CONTRACTOR) HAS FAILED TO TAKE DELIVERY 
OF CRUDE OIL UNDER THE TERMS OF CONTRACT NUMBER --------------------, 
AND AS A RESULT OWES THE U.S. GOVERNMENT
U.S. $----------------.''
    Drafts must be presented for payment on or before the expiration 
date of this Letter of Credit at our bank. The Government may make 
multiple drafts against this Letter of Credit.
    Upon receipt of the U.S. Department of Energy's demand by hand, mail 
express delivery, or other means, at our office located at ------------
--------, we will honor the demand and make payment, by 3 p.m. Eastern 
Time of the next business day following receipt of the demand, by either 
wire transfer of funds as a deposit to the account of the U.S. Treasury 
over the Fedwire Deposit System Network, or by electronic funds transfer 
through the Automated Clearing House Network, using the Federal 
Remittance Express Program. The information to be included in each 
transfer will be as provided in the above referenced contract.
    This Letter of Credit is subject to the Uniform Customs and Practice 
for Documentary

[[Page 310]]

Credits (1993 Revision, International Chamber of Commerce Publication 
no. 500) and except as may be inconsistent therewith, to the Uniform 
Commercial Code in effect on the date of issuance of this Letter of 
Credit in the state in which the issuer's head office within the United 
States is located.
    We hereby agree with the drawers, endorsers and bona fide holders 
that all drafts drawn under and in compliance with the terms of this 
Letter of Credit will be duly honored upon presentation and delivery of 
the above documents for payment at our bank on or before the expiration 
date.
    Address all communications regarding this Letter of Credit to (name 
and phone number).
    Very truly yours,
________________________________________________________________________
(Authorized Signature)

________________________________________________________________________
(Typed Name and Title)

                Instructions for Payment and Performance

                            Letter of Credit

    1. The depository institution must be an account holder with the 
Federal Reserve Banking system and a participant (on line) in the Fed's 
Fedwire Deposit System Network funds transfer system.
    2. Letter of Credit must not vary in substance from this attachment. 
Provide a copy of this attachment to your bank.
    3. Banks shall fill in blanks except those in the drawing 
statements. The drawing statements are in bold print with double 
underlines for the blanks. Do not fill in double underlined blanks.
    4. The information to be included and format to be used either for a 
wire transfer as a deposit over the Fedwire Deposit System Network or 
electronic funds transfer through the Automated Clearing House network, 
using the Federal Remittance Express Program, will be provided in the 
Contract.
    5. Type name and title under authorized signature.

[[Page 311]]

[GRAPHIC] [TIFF OMITTED] TR07JY05.002


[70 FR 39367, July 7, 2005]



PART 626_PROCEDURES FOR ACQUISITION OF PETROLEUM FOR THE STRATEGIC PETROLEUM RESERVE--Table of Contents



Sec.
626.1 Purpose.

[[Page 312]]

626.2 Definitions.
626.3 Applicability.
626.4 General acquisition strategy.
626.5 Acquisition procedures-general.
626.6 Acquiring oil by direct purchase.
626.7 Royalty transfer and exchange.
626.8 Deferrals of contractually scheduled deliveries.

    Authority: 42 U.S.C. 6240(c); 42 U.S.C. 7101, et seq.

    Source: 71 FR 65380, Nov. 8, 2006, unless otherwise noted.



Sec. 626.1  Purpose.

    This part establishes the procedures for acquiring petroleum for, 
and deferring contractually scheduled deliveries to, the Strategic 
Petroleum Reserve. The procedures do not represent actual terms and 
conditions to be contained in the contracts for the acquisition of SPR 
petroleum.



Sec. 626.2  Definitions.

    Backwardation means a market situation in which prices are 
progressively lower in succeeding delivery months than in earlier 
months.
    Contango means a market situation in which prices are progressively 
higher in the succeeding delivery months than in earlier months.
    Contract means the agreement under which DOE acquires SPR petroleum, 
consisting of the solicitation, the contract form signed by both 
parties, the successful offer, and any subsequent modifications, 
including those granting requests for deferrals.
    Contracting Officer means a person with the authority to enter into, 
administer, and/or terminate contracts and make related determinations 
and findings, including entering into sales contracts on behalf of the 
Government. The term includes certain authorized representatives of the 
Contracting Officer acting within the limits of their authority as 
delegated by the Contracting Officer.
    DEAR means the Department of Energy Acquisition Regulation.
    Deferral means a process whereby petroleum scheduled for delivery to 
the SPR in a specific contract period is rescheduled for later delivery, 
outside of that period and encompasses the future delivery of the 
originally scheduled quantity plus an in-kind premium.
    DOE means the Department of Energy.
    DOI means the Department of the Interior.
    Exchange means a process whereby petroleum owned by or due to the 
SPR is provided to a person or contractor in return for petroleum of 
comparable quality plus a premium quantity of petroleum delivered to the 
SPR in the future, or when SPR petroleum is traded for petroleum of a 
different quality for operational reasons based on the relative values 
of the quantities traded.
    FAR means the Federal Acquisition Regulation.
    Government means the United States Government, and includes DOE as 
its representative.
    International Energy Program means the program established by the 
Agreement on an International Energy Program, signed by the United 
States on November 18, 1974, including any subsequent amendments and 
additions to that Agreement.
    OPR means the Office of Petroleum Reserves within the DOE Office of 
Fossil Energy, whose responsibilities include the operation of the 
Strategic Petroleum Reserve.
    Petroleum means crude oil, residual fuel oil, or any refined product 
(including any natural gas liquid, and any natural gas liquid product) 
owned, or contracted for, by DOE and in storage in any permanent SPR 
facility, or temporarily stored in other storage facilities.
    Secretary means the Secretary of Energy.
    Strategic Petroleum Reserve or SPR means the DOE program established 
by Title I, Part B, of the Energy Policy and Conservation Act, 42 U.S.C. 
6201 et seq.



Sec. 626.3  Applicability.

    The procedures in this part apply to the acquisition of petroleum by 
DOE for the Strategic Petroleum Reserve through direct purchase or 
transfer of royalty-in-kind oil, as well as to deferrals of 
contractually scheduled deliveries.



Sec. 626.4  General acquisition strategy.

    (a) Criteria for commencing acquisition. To reduce the potential for 
negative

[[Page 313]]

impacts from market participation, DOE shall review the following 
factors prior to commencing acquisition of petroleum for the SPR:
    (1) The current inventory of the SPR;
    (2) The current level of private inventories;
    (3) Days of net import protection;
    (4) Current price levels for crude oil and related commodities;
    (5) The outlook for international and domestic production levels;
    (6) Existing or potential disruptions in supply or refining 
capability;
    (7) The level of market volatility;
    (8) Futures market price differentials for crude oil and related 
commodities; and
    (9) Any other factor the consideration of which the Secretary deems 
to be necessary or appropriate.
    (b) Review of rate of acquisition. DOE shall review the appropriate 
rate of oil acquisition each time an open market acquisition has been 
suspended for more than three months, and every six months in the case 
of ongoing or suspended royalty-in-kind transfers.
    (c) Acquisition through other Federal agencies. DOE may enter into 
arrangements with another Federal agency for that agency to acquire oil 
for the SPR on behalf of DOE.



Sec. 626.5  Acquisition procedures--general.

    (a) Notice of acquisition. (1) Except when DOE has determined there 
is good cause to do otherwise, DOE shall provide advance public notice 
of its intent to acquire petroleum for the SPR. The notice of 
acquisition is usually in the form of a solicitation. DOE shall state in 
the notice of acquisition the general terms and details of DOE's crude 
oil acquisition and, to the extent feasible, shall inform the public of 
its overall fill goals, so that they may be factored into market 
participants' plans and activities.
    (2) The notice of acquisition generally states:
    (i) The method of acquisition to be employed;
    (ii) The time that the solicitations will be open;
    (iii) The quantity of oil that is sought;
    (iv) The minimum crude oil quality requirements;
    (v) The acceptable delivery locations; and
    (vi) The necessary instructions for the offer process.
    (b) Method of acquisition. (1) DOE shall define the method of crude 
oil acquisition, direct purchase or royalty-in-kind transfer and 
exchange, in the notice of acquisition.
    (2) DOE shall determine the method of crude oil acquisition after 
taking into account the availability of appropriated funds, current 
market conditions, the availability of oil from the Department of the 
Interior, and other considerations DOE deems to be relevant.
    (c) Solicitation. (1) To secure the economic benefit and security of 
a diversified base of potential suppliers of petroleum to the SPR, DOE 
shall maintain a listing, developed through on-line registration and 
personal contact, of interested suppliers. Upon the issuance of a 
solicitation, DOE shall notify potential suppliers via their registered 
e-mail addresses.
    (2) DOE shall make the solicitation publicly available on the Web 
sites of the DOE Office of Fossil Energy http://www.fe.doe.gov/programs/
reserves and the OPR http://www.spr.doe.gov.
    (d) Timing and duration of solicitation. (1) DOE shall determine 
crude oil requirements on nominal six-month cycles, and shall review and 
update these requirements prior to each solicitation cycle.
    (2) DOE may terminate all solicitations and contracts pertaining to 
the acquisition of crude oil at the convenience of the Government, and 
in such event shall not be responsible for any costs incurred by 
suppliers, other than costs for oil delivered to the SPR and for 
reasonable, customary, and applicable costs incurred by the supplier in 
the performance of a valid contract for delivery before the effective 
date of termination of such contract. In no event shall the Government 
be liable for consequential damages or the contractor's lost profits as 
a result of such termination.
    (e) Quality. (1) DOE shall define minimum crude oil quality 
specifications for the SPR. DOE shall include such

[[Page 314]]

specifications in acquisition solicitations, and shall make them 
available on the Web sites of the DOE Office of Fossil Energy http://
www.fe.doe.gov/programs/reserves and the OPR http://www.spr.doe.gov.
    (2) DOE shall periodically review the quality specifications to 
ensure, to the greatest extent practicable, the crude oil mix in storage 
matches the demand of the United States refining system.
    (f) Quantity. In determining the quantities of oil to be delivered 
to the SPR, DOE shall:
    (1) Take into consideration market conditions and the availability 
of transportation systems; and
    (2) Seek to avoid adversely affecting other market participants or 
crude oil market fundamentals.
    (g) Offer and evaluation procedures. (1) Each solicitation shall 
provide necessary instructions on offer format and submission 
procedures. The details of the offer, evaluation and award procedures 
may vary depending on the method of acquisition.
    (2) DOE shall use relative crude values and time differentials to 
the maximum extent practicable to manage acquisition and delivery 
schedules to reduce acquisition costs.
    (3) DOE shall evaluate offers based on prevailing market prices of 
specific crude oils, and shall award contracts on a competitive basis.
    (4) Whether acquisition is by direct purchase or royalty transfer 
and exchange on a term contract basis, DOE shall use a price index to 
account for fluctuations in absolute and relative market prices at the 
time of delivery to reduce market risk to all parties throughout the 
contract term.
    (h) Scheduling and delivery. (1) Except as provided in paragraph 
(h)(4) of this section, DOE shall accept offers for crude oil delivered 
to specified SPR storage sites via pipeline or as waterborne cargos 
delivered to the terminals serving those sites.
    (2) Except as provided in paragraph (h)(4) of this section, DOE 
shall generally establish schedules that allow for evenly spaced 
deliveries of economically-sized marine and pipeline shipments within 
the constraints of SPR site and commercial facilities receipt 
capabilities.
    (3) DOE shall strive to maximize U.S. flag carrier utilization 
through the terms of its supply contracts.
    (4) DOE reserves the right to accept offers for other methods of 
delivery if, in DOE's sole judgment, market conditions and logistical 
constraints require such other methods.



Sec. 626.6  Acquiring oil by direct purchase.

    (a) General. For the direct purchase of crude oil, DOE shall, 
through certified contracting officers, conduct crude oil acquisitions 
in accordance with the FAR and the DEAR.
    (b) Acquisition strategy. (1) DOE solicitations:
    (i) May be either continuously open or fixed for a period of time 
(usually no longer than 6 months); and
    (ii) May provide either for prompt delivery or for delivery at 
future dates.
    (2) DOE may alter the acquisition plan to take advantage of 
differentials in prices for different qualities of oil, based on a 
consideration of the availability of storage capacity in the SPR sites, 
the logistics of changing delivery streams, and the availability of 
ships, pipelines and terminals to move and receive the oil.
    (3) Based on the market analysis described in paragraph (d) of this 
section, DOE may refuse offers or suspend the acquisition process on the 
basis of Government estimates that project substantially lower oil 
prices in the future than those contained in offers. If DOE determines 
there is a high probability that the cost to the Government can be 
reduced without significantly affecting national energy security goals, 
DOE may either contract for delivery at a future date or delay purchases 
to take advantage of projected future lower prices. Conversely, DOE may 
increase the rate of purchases if prices fall below recent price trends 
or futures markets present a significant contango and prices offer the 
opportunity to reduce the average cost of oil acquisitions in 
anticipation of higher prices.
    (4) Based on the market analysis described in paragraph (d) of this 
section, DOE may refuse offers, decrease the

[[Page 315]]

rate of purchase, or suspend the acquisition process if DOE determines 
acquisition will add significant upward pressure to prices either 
regionally or on a world-wide basis. DOE may consider recent price 
changes, private inventory levels, oil acquisition by other stockpiling 
entities, the outlook for world oil production, incipient disruptions of 
supply or refining capability, logistical problems for moving petroleum 
products, macroeconomic factors, and any other considerations that may 
be pertinent to the balance of petroleum supply and demand.
    (c) Fill requirements determination. DOE shall develop SPR fill 
requirements for each solicitation based on an assessment of national 
energy security goals, the availability of storage capacity, and the 
need for specific grades and quantities of crude oil.
    (d) Market analysis. (1) DOE shall establish a market value for each 
crude type to be acquired based on a market analysis at the time of 
contract award.
    (2) In conducting the market analysis, DOE may use prices on futures 
markets, spot markets, recent price movements, current and projected 
shipping rates, forecasts by the DOE Energy Information Administration, 
and any other analytic tools available to DOE to determine the most 
desirable purchase profile.
    (3) A market analysis may also consider recent price changes, 
private inventory levels, oil acquisition by other stockpiling entities, 
the outlook for world oil production, incipient disruptions of supply or 
refining capability, logistical problems for moving petroleum products, 
macroeconomic factors, and any other considerations that may be 
pertinent to the balance of petroleum supply and demand.
    (e) Evaluation of offers. (1) DOE shall evaluate offers using:
    (i) The criteria and requirements stated in the solicitation; and
    (ii) The market analysis under paragraph (d) of this section.
    (2) DOE shall require financial guarantees from contractors, in the 
form of a letter of credit or equivalent financial assurance.



Sec. 626.7  Royalty transfer and exchange.

    (a) General. DOE shall conduct royalty transfers pursuant to an 
agreement between DOE and DOI for the transfer of royalty oil.
    (b) Acquisition strategy. (1) DOE and DOI shall select a royalty 
volume from specified leases for transfer usually over six-month 
periods.
    (2) If logistics and crude oil quality are compatible with SPR 
receipt capabilities and requirements respectively, DOE may take the 
royalty oil directly from DOI and place it in SPR storage sites. 
Otherwise, DOE may competitively solicit suppliers to deliver oil of 
comparable value to the SPR in exchange for the receipt of royalty-in-
kind oil.
    (3) If, based on the market analysis described in paragraph (d) of 
this section, DOE determines there is a high probability that the cost 
to the Government can be reduced without significantly affecting 
national energy security goals, DOE may contract for delivery at a 
future date in expectation of lower prices and a higher quantity of oil 
in exchange. Conversely, it may schedule deliveries at an earlier date 
under the contract in anticipation of higher prices at later dates.
    (4) Based on the market analysis in paragraph (d) of this section, 
DOE may, after consultation with DOI, suspend the transfer of royalty 
oil to DOE if it appears the added demand for oil will add significant 
upward pressure to prices either regionally or on a world-wide basis.
    (c) Fill requirements determination. DOE shall develop SPR fill 
requirements for each solicitation based on an assessment of national 
energy security goals, the availability of royalty oil and storage 
capacity, and need for specific grades and quantities of crude oil.
    (d) Market analysis. (1) DOE may use prices on futures markets, spot 
markets, recent price movements, current and projected shipping rates, 
forecasts by the DOE Energy Information Administration, and any other 
analytic tools to determine the most desirable acquisition profile.
    (2) A market analysis may also consider recent price changes, 
private inventory levels, oil acquisition by other stockpiling entities, 
the outlook for

[[Page 316]]

world oil production, incipient disruptions of supply or refining 
capability, logistical problems for moving petroleum products, 
macroeconomic factors, and any other considerations that may be 
pertinent to the balance of petroleum supply and demand.
    (e) Evaluation of royalty exchange offers. (1) DOE shall evaluate 
offers using:
    (i) The criteria and requirements stated in the solicitation; and
    (ii) The market analysis under paragraph (d) of this section.
    (2) DOE shall require financial guarantees from contractors in the 
form of a letter of credit or equivalent financial assurance.



Sec. 626.8  Deferrals of contractually scheduled deliveries.

    (a) General. (1) DOE prefers to take deliveries of petroleum for the 
SPR at times scheduled under applicable contracts. However, in the event 
the market is distorted by disruption to supply or other factors, DOE 
may defer scheduled deliveries or request or entertain deferral requests 
from contractors.
    (2) A contractor seeking to defer scheduled deliveries of oil to the 
SPR may submit a deferral request to DOE.
    (b) Deferral criteria. DOE shall only grant a deferral request for 
negotiation under paragraph (c) of this section if it determines that 
DOE can receive a premium for the deferral paid in additional barrels of 
oil and, based on DOE's deferral analysis, that at least one of the 
following conditions exists:
    (1) DOE can reduce the cost of its oil acquisition per barrel and 
increase the volume of oil being delivered to the SPR by means of the 
premium barrels required by the deferral process.
    (2) DOE anticipates private inventories are approaching a point 
where unscheduled outages may occur.
    (3) There is evidence that refineries are reducing their run rates 
for lack of feedstock.
    (4) There is an unanticipated disruption to crude oil supply.
    (c) Negotiating terms. (1) If DOE decides to negotiate a deferral of 
deliveries, DOE shall estimate the market value of the deferral and 
establish a strategy for negotiating with suppliers the minimum 
percentage of the market value to be taken by the Government. During 
these negotiations, if the deferral request was initiated by DOE, DOE 
may consider any reasonable, customary, and applicable costs already 
incurred by the supplier in the performance of a valid contract for 
delivery. In no event shall such consideration account for any 
consequential damages or lost profits suffered by the supplier as a 
result of such deferral.
    (2) DOE shall only agree to amend the contract if the negotiation 
results in an agreement to give the Government a fair and reasonable 
share of the market value.

[[Page 317]]



                    CHAPTER III--DEPARTMENT OF ENERGY




  --------------------------------------------------------------------
Part                                                                Page
706             Security policies and practices relating to 
                    labor-management relations..............         319
707             Workplace substance abuse programs at DOE 
                    sites...................................         321
708             DOE contractor employee protection program..         331
709             Counterintelligence evaluation program......         342
710             Criteria and procedures for determining 
                    eligibility for access to classified 
                    matter or special nuclear material......         352
712             Human reliability program...................         375
715             Definition of nonrecourse project-financed..         392
719             Contractor legal management requirements....         393
725             Permits for access to restricted data.......         403
727             Consent for access to information on 
                    Department of Energy computers..........         413
733             Allegations of research misconduct..........         414
745             Protection of human subjects................         415
760             Domestic Uranium Program....................         426
765             Reimbursement for costs of remedial action 
                    at active uranium and thorium processing 
                    sites...................................         429
766             Uranium enrichment decontamination and 
                    decommissioning fund; procedures for 
                    special assessment of domestic utilities         438
770             Transfer of real property at defense nuclear 
                    facilities for economic development.....         442
780             Patent Compensation Board regulations.......         445
781             DOE patent licensing regulations............         453
782             Claims for patent and copyright infringement         463
783             Waiver of patent rights.....................         465
784             Patent waiver regulation....................         465
800             Loans for bid or proposal preparation by 
                    minority business enterprises seeking 
                    DOE contracts and assistance............         477
810             Assistance to foreign atomic energy 
                    activities..............................         485
820             Procedural rules for DOE nuclear activities.         492
824             Procedural rules for the assessment of civil 
                    penalties for classified information 
                    security violations.....................         520
830             Nuclear safety management...................         532

[[Page 318]]

835             Occupational radiation protection...........         546
840             Extraordinary nuclear occurrences...........         582
850             Chronic beryllium disease prevention program         585
851             Worker safety and health program............         601
860             Trespassing on Department of Energy property         630
861             Control of traffic at Nevada Test Site......         631
862             Restrictions on aircraft landing and air 
                    delivery at Department of Energy nuclear 
                    sites...................................         632
871             Air transportation of plutonium.............         635
900             Coordination of Federal authorizations for 
                    electric transmission facilities........         636
903             Power and transmission rates................         639
904             General regulations for the charges for the 
                    sale of power from the Boulder Canyon 
                    Project.................................         644
905             Energy Planning and Management Program......         651
950             Standby support for certain nuclear plant 
                    delays..................................         664
960             General guidelines for the preliminary 
                    screening of potential sites for a 
                    nuclear waste repository................         679
961             Standard contract for disposal of spent 
                    nuclear fuel and/or high-level 
                    radioactive waste.......................         710
962             Byproduct material..........................         730
963             Yucca Mountain site suitability guidelines..         731

[[Page 319]]



PART 706_SECURITY POLICIES AND PRACTICES RELATING TO LABOR-MANAGEMENT RELATIONS--Table of Contents



                                 General

Sec.
706.1 Purpose.
706.2 Basis and scope.

   Security Policies and Procedures in National Labor Relations Board 
                               Proceedings

706.10 Policy.
706.11 Consent elections.
706.12 Administrative Law Judges.
706.13 Clearance of counsel.
706.14 DOE's role in proceedings.

                         Loyalty of Participants

706.20 Policy.

                 Contract Negotiation and Administration

706.30 Clearance of certain local union representatives.
706.31 Clearance of conciliators and arbitrators.
706.32 Security indoctrination of non-employee representatives.
706.40 Final responsibility of DOE in security matters.

    Authority: Sec. 161, 68 Stat. 948, as amended; 42 U.S.C. 2201.

    Source: 41 FR 56776, Dec. 30, 1976, unless otherwise noted.

                                 General



Sec. 706.1  Purpose.

    The purpose of this part is to set forth Department of Energy, 
hereinafter ``DOE,'' security policies and practices in the area of 
labor-management relations.



Sec. 706.2  Basis and scope.

    The specific policies contained in this part are worked out within 
the framework of DOE's general objectives for labor-management relations 
in the DOE program, namely:
    (a) Wholehearted acceptance by contractors and by labor and its 
representatives of the moral responsibility inherent in participation in 
the DOE program;
    (b) Development of procedures to assure (1) that all participants in 
the program are loyal to the United States including those whose 
participation involves the exercise of negotiating and disciplinary 
authority over bargaining units, and (2) that determination of unit, 
jurisdiction, and similar questions will not breach security;
    (c) Continuity of production at vital DOE installations;
    (d) Consistent with DOE's responsibility under the law, the least 
possible governmental interference with the efficient management 
expected from DOE contractors;
    (e) Minimum interference with the traditional rights and privileges 
of American labor.

   Security Policies and Procedures in National Labor Relations Board 
                               Proceedings



Sec. 706.10  Policy.

    It is policy of DOE that NLRB cases falling within the scope of the 
Labor Management Relations Act at the various DOE installations should 
be conducted in normal fashion whereever possible, on the basis of open 
hearings, unclassified records and published decisions. This policy does 
not preclude adoption of special arrangements which may be required for 
reasons of program security at any stage of the proceedings in 
particular areas.



Sec. 706.11  Consent elections.

    In accordance with the recommendation of the President's Commission 
on Labor Relations in the Atomic Energy Installations, it is the policy 
of DOE to encourage every effort by management and labor at DOE 
installations to determine bargaining units and representatives by 
agreement and consent elections in preference to contested proceedings 
before the National Labor Relations Board.



Sec. 706.12  Administrative Law Judges.

    By agreement with the National Labor Relations Board, a panel of 
cleared NLRB administrative law judges is maintained to facilitate 
resolution of questions as to the materiality of classified information 
in NLRB hearings and to facilitate preparation of an unclassified 
record. The assignment of individual administrative law judges to DOE 
cases remains a matter within the discretion of the National Labor 
Relations Board.

[[Page 320]]



Sec. 706.13  Clearance of counsel.

    It is recognized that clearance of counsel for the parties is 
sometimes desirable for proper preparation of a case even though the 
record is to be unclassified. Clearance of counsel makes possible their 
participation in any closed discussions needed preparatory to making an 
unclassified record. Each party is responsible for requesting clearance 
of its counsel well in advance so that clearance requirements will not 
delay the proceeding. The clearance of temporary special counsel will be 
terminated on completion of the proceeding.



Sec. 706.14  DOE's role in proceedings.

    If controversies within the scope of the Labor Management Relations 
Act arise which cannot be adjusted by mutual agreement, and contested 
proceedings before NLRB result, each party to such proceedings will 
present his own position and the evidence in support thereof with due 
regard for existing security rules. DOE will be continuously informed of 
the progress of such proceedings and will act as may appear desirable 
(a) to assure the protection of classified information; (b) to assure 
that material and relevant information is not withheld from the record 
on grounds of security if such information can be supplied in 
unclassified form; and (c) to assist in determining appropriate action 
where a decision may turn on data which can be expressed only in 
classified form.

                         Loyalty of Participants



Sec. 706.20  Policy.

    Loyalty to the United States is a paramount factor applicable to all 
participants in DOE program including those whose participation 
(although not requiring access to restricted data) involves the exercise 
of administrative, negotiating and disciplinary authority over 
bargaining units composed of employees engaged on classified work. 
Individuals involved in questions of loyalty will be given full 
opportunity to explore the questions with DOE. DOE will take such 
further steps as may be appropriate in the circumstances.

                 Contract Negotiation and Administration



Sec. 706.30  Clearance of certain local union representatives.

    It is recognized that security clearance of certain union 
representatives may be necessary to assure opportunity for effective 
representation of employees in collective bargaining relationships with 
DOE contractors. Accordingly, DOE managers may authorize investigation 
for ``Q'' clearance of union officials whose functions as 
representatives of employees may reasonably be expected to require 
access to Restricted Data under NLRB and other procedures according to 
applicable law (LMRA, 1947); to effectively perform their representation 
functions in the resolution of grievances and in other collective 
bargaining relationships with contractors; to effectuate the 
recommendation of the President's Commission on Labor Relations in the 
Atomic Energy Installations in respect to integration of the union into 
the plant organization ``as to two-way channel of communication and a 
medium of understanding between management and workers''.
    (a) In the pre-contract stage of union-management relations, the 
requirements of the Labor Management Relations Act normally will be the 
applicable criteria for determining which bargaining representatives, if 
any, will need access to classified material in the exercise of their 
functions as employee representatives.
    (b) After a bargaining relationship has been established between the 
contractor and the representatives of its employees the nature of this 
relationship and the procedures followed in it normally will be the 
controlling criteria for determination of the access to be granted to 
particular persons in carrying out their functions as employee 
representatives. For example, many contract grievance procedures 
designate by title certain union and management officials who are to 
have definite roles in the resolution of grievances under the procedure. 
Investigation for ``Q'' clearance will normally be

[[Page 321]]

in order for such officials, both company and union, employee, and non-
employee. In addition, persons not so designated may be investigated for 
clearance where the company and the union advise DOE manager that their 
established relationships contemplate access for such persons.



Sec. 706.31  Clearance of conciliators and arbitrators.

    Conciliators and arbitrators who are regularly assigned to DOE cases 
may be processed for ``Q'' clearance at the discretion of the local DOE 
manager, either on the manager's initiative or at the request of a 
contractor.



Sec. 706.32  Security indoctrination of non-employee representatives.

    All collective bargaining representatives, company and union, who 
are to have access to Restricted Data, will be given appropriate 
security indoctrination.



Sec. 706.40  Final responsibility of DOE in security matters.

    On all matters of security at all Government-owned, privately 
operated DOE installations, DOE retains absolute and final authority, 
and neither the security rules nor their administration are matters for 
collective bargaining between management and labor, insofar as DOE 
security regulations affect the collective bargaining process, the 
security policies and regulations will be made known to both parties. To 
the fullest extent feasible DOE will consult with representatives of 
management and labor in formulating security rules and regulations that 
affect the collective bargaining process.



PART 707_WORKPLACE SUBSTANCE ABUSE PROGRAMS AT DOE SITES--Table of Contents



                      Subpart A_General Provisions

Sec.
707.1 Purpose.
707.2 Scope.
707.3 Policy.
707.4 Definitions.

                          Subpart B_Procedures

707.5 Submission, approval, and implementation of a baseline workplace 
          substance abuse program.
707.6 Employee assistance, education, and training.
707.7 Random drug testing requirements and identification of testing 
          designated positions.
707.8 Applicant drug testing.
707.9 Drug testing as a result of an occurrence.
707.10 Drug testing for reasonable suspicion of illegal drug use.
707.11 Drugs for which testing is performed.
707.12 Specimen collection, handling, and laboratory analysis for drug 
          testing.
707.13 Medical review of results of tests for illegal drug use.
707.14 Action pursuant to a determination of illegal drug use.
707.15 Collective bargaining.
707.16 Records.
707.17 Permissible actions in the event of contractor noncompliance.

    Authority: 41 U.S.C. 701 et seq.; 42 U.S.C. 2012, 2013, 2051, 2061, 
2165, 2201b, 2201i, and 2201p; 42 U.S.C. 5814 and 5815; 42 U.S.C. 7151, 
7251, 7254, and 7256; 50 U.S.C. 2401 et seq.

    Source: 57 FR 32656, July 22, 1992, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 707.1  Purpose.

    The Department of Energy (DOE) promulgates this part in order to 
protect the environment, maintain public health and safety, and 
safeguard the national security. This part establishes policies, 
criteria, and procedures for developing and implementing programs that 
help to maintain a workplace free from the use of illegal drugs. It 
applies to DOE contractors and subcontractors performing work at sites 
owned or controlled by DOE and operated under the authority of the 
Atomic Energy Act of 1954, as amended, and to individuals with 
unescorted access to the control areas of certain DOE reactors. The 
procedures include detection of the use of illegal drugs by current or 
prospective contractor employees in testing designated positions.



Sec. 707.2  Scope.

    (a) This part applies to the following contracts with DOE, at sites 
owned or controlled by DOE which are operated

[[Page 322]]

under the authority of the Atomic Energy Act of 1954, as amended:
    (1) Management and operating contracts; and
    (2) Other contracts or subcontracts with a value of $25,000 or more, 
and which have been determined by DOE to involve:
    (i) Access to or handling of classified information or special 
nuclear materials;
    (ii) High risk of danger to life, the environment, public health and 
safety, or national security; or
    (iii) Transportation of hazardous materials to or from a DOE site.
    (b) Individuals described in Sec. 707.7 (b) and (c) will be subject 
to random drug testing; to drug testing as a result of an occurrence, as 
described in Sec. 707.9; and to drug testing on the basis of reasonable 
suspicion, as described in Sec. 707.10.
    (c) Applicants for employment in testing designated positions will 
be tested in accordance with Sec. 707.8.



Sec. 707.3  Policy.

    It is the policy of DOE to conduct its programs so as to protect the 
environment, maintain public health and safety, and safeguard the 
national security. This policy is advanced in this rule by requiring 
contractors and subcontractors within its scope to adopt procedures 
consistent with the baseline requirements of this part, and to impose 
significant sanctions on individuals in testing designated positions or 
with unescorted access to the control areas of certain DOE reactors, who 
use or are involved with illegal drugs.



Sec. 707.4  Definitions.

    For the purposes of this part, the following definitions apply:
    Collection Site Person means a technician or other person trained 
and qualified to take urine samples and to secure urine samples for 
later laboratory analysis.
    Confirmed Positive Test means, for drugs, a finding based on a 
positive initial or screening test result, confirmed by another positive 
test on the same sample. The confirmatory test must be by the gas 
chromatography/mass spectrometry method.
    Counseling means assistance provided by qualified professionals to 
employees, especially, but not limited to those employees whose job 
performance is, or might be, impaired as a result of illegal drug use or 
a medical-behavioral problem; such assistance may include short-term 
counseling and assessment, crisis intervention, referral to outside 
treatment facilities, and follow-up services to the individual after 
completion of treatment and return to work.
    Drug Certification means a written assurance signed by an individual 
with known past illegal drug involvement, as a condition for obtaining 
or retaining a DOE access authorization, stating that the individual 
will refrain from using or being involved with illegal drugs while 
employed in a position requiring DOE access authorization (security 
clearance).
    Employee Assistance means a program of counseling, referral, and 
educational services concerning illegal drug use and other medical, 
mental, emotional, or personal problems of employees, particularly those 
which adversely affect behavior and job performance.
    Hazardous Material means any material subject to the placarding 
requirements of 49 CFR 172.504, table 1, and materials presenting a 
poison-inhalation hazard that must be placarded under the provisions of 
49 CFR 172.505.
    Illegal Drug means a controlled substance, as specified in Schedules 
I through V of the Controlled Substances Act, 21 U.S.C. 811, 812. The 
term ``illegal drugs'' does not apply to the use of a controlled 
substance in accordance with terms of a valid prescription, or other 
uses authorized by law.
    Management and Operating Contract means an agreement for the 
operation, maintenance, or support, on behalf of the Government, of a 
Government-owned or controlled research, development, special 
production, or testing establishment wholly or principally devoted to 
one or more major programs of DOE.
    Medical Review Officer (MRO) means a licensed physician, approved by 
DOE to perform certain functions under this part. The MRO is responsible 
for receiving laboratory results generated by an employer's drug testing 
program, has knowledge of illegal drug use and

[[Page 323]]

other substance abuse disorders, and has appropriate medical training to 
interpret and evaluate an individual's positive test result, together 
with that person's medical history and any other relevant biomedical 
information. For purposes of this part a physician from the site 
occupational medical department may be the MRO.
    Occurrence means any event or incident that is a deviation from the 
planned or expected behavior or course of events in connection with any 
Department of Energy or Department of Energy-controlled operation, if 
the deviation has environmental, public health and safety, or national 
security protection significance. Incidents having such significance 
include the following, or incidents of a similar nature:
    (1) Injury or fatality to any person involving actions of a 
Department of Energy contractor employee.
    (2) Involvement of nuclear explosives under Department of Energy 
jurisdiction which results in an explosion, fire, the spread of 
radioactive material, personal injury or death, or significant damage to 
property.
    (3) Accidental release of pollutants which results or could result 
in a significant effect on the public or environment.
    (4) Accidental release of radioactive material above regulatory 
limits.
    Random Testing means the unscheduled, unannounced urine drug testing 
of randomly selected individuals in testing designated positions, by a 
process designed to ensure that selections are made in a non-
discriminatory manner.
    Reasonable Suspicion means a suspicion based on an articulable 
belief that an employee uses illegal drugs, drawn from particularized 
facts and reasonable inferences from those facts, as detailed further in 
Sec. 707.10.
    Referral means the direction of an individual toward an employee 
assistance program or to an outside treatment facility by the employee 
assistance program professional, for assistance with prevention of 
illegal drug use, treatment, or rehabilitation from illegal drug use or 
other problems. Referrals to an employee assistance program can be made 
by the individual (self-referral), by contractor supervisors or 
managers, or by a bargaining unit representative.
    Rehabilitation means a formal treatment process aimed at the 
resolution of behavioral-medical problems, including illegal drug use, 
and resulting in such resolution.
    Special Nuclear Material has the same meaning as in section 11aa of 
the Atomic Energy Act of 1954 (42 U.S.C. 2014(aa)).
    Specimen Chain of Custody Form is a form used to document the 
security of the specimen from time of collection until receipt by the 
laboratory. This form, at a minimum, shall include specimen identifying 
information, date and location of collection, name and signature of 
collector, name of testing laboratory, and the names and signatures of 
all individuals who had custody of the specimen from time of collection 
until the specimen was prepared for shipment to the laboratory.
    Testing Designated Position names a position whose incumbents are 
subject to drug testing under this part.



                          Subpart B_Procedures



Sec. 707.5  Submission, approval, and implementation of a baseline workplace substance abuse program.

    (a) Each contractor subject to this part shall develop a written 
program consistent with the requirements of this part and the guidelines 
of the Department of Health and Human Services and subsequent amendments 
to those guidelines (``Mandatory Guidelines for Federal Workplace Drug 
Testing Programs,'' 53 FR 11970, April 11, 1988; hereinafter ``HHS 
Mandatory Guidelines''), and applicable to appropriate DOE sites. Such a 
program shall be submitted to DOE for review and approval, and shall 
include at least the following baseline elements:
    (1) Prohibition of the use; possession, sale, distribution, or 
manufacture of illegal drugs at sites owned or controlled by DOE;

[[Page 324]]

    (2) Plans for instruction of supervisors and employees concerning 
problems of substance abuse, including illegal drug use, and the 
availability of assistance through the employee assistance program and 
referrals to other resources, and the penalties that may be imposed upon 
employees for drug-related violations occurring on the DOE owned or 
controlled site;
    (3) Provision for distribution to all employees engaged in 
performance of the contract on the DOE owned or controlled site of a 
statement which sets forth the contractor's policies prohibiting the 
possession, sale, distribution, or manufacture of illegal drugs at the 
DOE owned or controlled site. The statement shall include notification 
to all employees that as a condition of employment under the contract, 
the employee will:
    (i) Abide by the terms of the statement; and
    (ii) Notify the employer in writing of the employee's conviction 
under a criminal drug statute for a violation occurring on the DOE owned 
or controlled site no later than 10 calendar days after such conviction;
    (4) Provision for written notification to the DOE contracting 
officer within 10 calendar days after receiving notice under paragraph 
(a)(3)(ii) of this section, from an employee or otherwise receiving 
actual notice of an employee's conviction of a drug-related offense;
    (5) Provision for imposing one of the following actions, with 
respect to any employee who is convicted of a drug-related violation 
occurring in the workplace, within 30 calendar days after receiving such 
notice of conviction under paragraph (a)(4) of this section;
    (i) Taking appropriate personnel action against such employee, up to 
and including termination; or
    (ii) Offering such employee, consistent with the contractor's 
policies, an opportunity to participate satisfactorily in a drug abuse 
assistance or rehabilitation program approved for such purposes by a 
Federal, State, or local health, law enforcement, or other appropriate 
agency. If the employee does not participate in such a rehabilitation 
program, the contractor must take appropriate personnel action, up to 
and including termination, in accordance with the contractor's policies.
    (6) Commitment to make a good faith effort to maintain a workplace 
free of substance abuse through implementation of paragraphs (a)(1) 
through (a)(5) of this section.
    (b) In addition, the following baseline elements must be included in 
programs developed by contractors that have identified testing 
designated positions (see Sec. 707.7(b));
    (1) Notification to DOE of the positions subject to drug testing;
    (2) Prohibition of individuals in testing designated positions who 
are not free from the use of illegal drugs from working in those 
positions;
    (3) Sanctions for individuals in testing designated positions who 
violate the prohibitions of paragraphs (a)(1) or (b)(2) of this section;
    (4) Provision for:
    (i) Notification, at least 60 days in advance of initiating testing, 
to those individuals subject to drug testing, unless the contractor is 
currently conducting a testing program.
    (ii) Urine drug analysis of applicants for testing designated 
positions before final selection for employment or assignment;
    (iii) Random urine drug analysis for employees in testing designated 
positions;
    (iv) Urine drug analysis for employees in testing designated 
positions on the basis of reasonable suspicion, as a result of an 
occurrence, or as a follow-up to rehabilitation; and
    (v) Random urine drug analysis and urine drug analysis on the basis 
of reasonable suspicion or as the result of an occurrence, for any 
individual with unescorted access to the control areas of certain DOE 
reactors (see Sec. 707.7(c)).
    (vi) Written notice to the contractor by an employee in a testing 
designated position of a drug-related arrest or conviction, or receipt 
of a positive drug test result regarding that employee, as soon as 
possible but within 10 calendar days of such arrest, conviction, or 
receipt; and
    (vii) Appropriate action, if any, to be taken regarding an employee 
who:
    (A) is arrested for or convicted of a drug-related offense; or

[[Page 325]]

    (B) has a positive drug test result (consistent with Sec. 707.14).
    (5) Provision to employees of the opportunity for rehabilitation, 
consistent with the contractor's policies, under circumstances as 
provided in this part (see Sec. 707.14(b));
    (6) Immediate notification to DOE security officials whenever the 
circumstances in connection with procedures under this part raise a 
security concern as provided in DOE Orders, rules and regulations; such 
circumstances including, but are not necessarily limited to, a 
determination that an individual holding a DOE access authorization has 
used an illegal drug.
    (c) Each contractor's written policy and procedures under this part 
shall comply with the requirements of 10 CFR part 710, ``Criteria and 
Procedures for Determining Eligibility for Access to Classified Matter 
or Significant Quantities of Special Nuclear Material.''
    (d) Contractors are required to submit all subcontracts they believe 
to be within the scope of this part to DOE for a determination as to 
whether the subcontract falls within the scope of this part. 
Subcontractors so determined to be within the scope of this part shall 
be required to agree to comply with its requirements, as a condition of 
eligibility for performing the subcontract work. Each subcontractor 
subject to this part shall submit its plan to the appropriate prime 
contractor for approval; the contractor shall be responsible for 
periodically monitoring the implementation of the subcontractor's 
program for effectiveness and compliance with this part.
    (e) In reviewing each proposed workplace substance abuse plan, DOE 
shall decide whether the program meets the applicable baseline 
requirements established by this part. The responsible DOE official will 
reject proposed workplace substance abuse plans that are deemed not to 
meet the baseline requirements. DOE shall provide the contractor with a 
written notification regarding the decision as to the acceptability of 
the plan. Nothing in this rule is intended to prohibit any contractor 
subject to this part from implementing workplace substance abuse 
requirements additional to those of the baseline, including drug testing 
employees and applicants for employment in any position and testing for 
any illegal drugs. However, the contractor shall inform DOE of such 
additional requirements at least 30 days prior to implementation.
    (f) DOE shall periodically review and evaluate each contractor's 
program, including the contractor's oversight of the covered 
subcontractors, to assure effectiveness and compliance with this part.
    (g) Contractors or proposers will submit their program to DOE for 
review within 30 days of notification by DOE that the contract or 
proposed contract falls within the scope of this part. Workplace 
substance abuse programs, as provided in this part, shall be implemented 
within 30 days of approval by DOE. DOE may grant an extension to the 
notification or implementation period, as warranted by local conditions. 
Implementation may require changes to collective bargaining agreements 
as discussed in Sec. 707.15 of this part.
    (h) To assure consistency of application, DOE shall periodically 
review designated contracts and testing designated positions included in 
the workplace substance abuse plans approved by DOE. DOE will also 
periodically review implementation of programs conducted by prime 
contractors, to assure consistency of application among prime contracts 
(and subcontracts where appropriate) throughout DOE.
    (i) This part preempts any State or local law, rule, regulation, 
order, or standard to the extent that:
    (1) compliance with both the State or local requirement and any 
requirements in this part is not possible; or
    (2) compliance with the State or local requirement is an obstacle to 
the accomplishments and execution of any requirement in this part.



Sec. 707.6  Employee assistance, education, and training.

    Contractor programs shall include the following or appropriate 
alternatives:
    (a) Employee assistance programs emphasizing preventive services, 
education, short-term counseling, coordination and referral to outside 
agencies,

[[Page 326]]

and follow-up. These services shall be available to all contractor on-
site employees involved in the DOE contract. The contractor has no 
obligation to pay the costs of any individual's counseling, treatment, 
or rehabilitation beyond those services provided by the contractor's 
employee assistance program, except as provided for in the contractor's 
benefits programs. DOE undertakes no obligation to pay for any 
individual's counseling, rehabilitation, or treatment, unless 
specifically provided for by contract.
    (b) Education and training programs for on-site employees on a 
periodic basis, which will include, at a minimum, the following 
subjects:
    (1) For all on-site employees: Health aspects of substance abuse, 
especially illegal drug use; safety, security, and other workplace-
related problems caused by substance abuse, especially illegal drug use; 
the provisions of this rule; the employer's policy; and available 
employee assistance services.
    (2) For managers and supervisors:
    (i) The subjects listed in paragraph (b)(1) of this section;
    (ii) Recognition of deteriorating job performance or judgment, or 
observation of unusual conduct which may be the result of possible 
illegal drug use;
    (iii) Responsibility to intervene when there is deterioration in 
performance, or observed unusual conduct, and to offer alternative 
courses of action that can assist the employee in returning to 
satisfactory performance, judgment, or conduct, including seeking help 
from the employee assistance program;
    (iv) Appropriate handling and referral of employees with possible 
substance abuse problems, especially illegal drug use; and
    (v) Employer policies and practices for giving maximum consideration 
to the privacy interests of employees and applicants.



Sec. 707.7  Random drug testing requirements and identification of testing designated positions.

    (a)(1) Each workplace substance abuse program will provide for 
random testing for evidence of the use of illegal drugs of employees in 
testing designated positions identified in this section.
    (2) Programs developed under this part for positions identified in 
paragraph (b)(3) of this section shall provide for random tests at a 
rate equal to 30 percent of the total number of employees in testing 
designated positions for each 12 month period. Employees in the 
positions identified in paragraphs (b)(1), (b)(2), and (c) of this 
section will be subject to random testing at a rate equal to 100 percent 
of the total number of employees identified, and those identified in 
paragraphs (b)(1) and (b)(2) of this section may be subject to 
additional drug tests.
    (b) The testing designated positions subject to random drug testing 
are:
    (1) Positions determined to be covered by the Human Reliability 
Program (HRP), codified at 10 CFR part 712. HRP employees will be 
subject to the drug testing standards of this part and any additional 
requirements of the HRP rule.
    (2) Positions identified by the contractor which entail duties where 
failure of an employee adequately to discharge his or her position could 
significantly harm the environment, public health or safety, or national 
security, such as:
    (i) Pilots;
    (ii) Firefighters;
    (iii) Protective force personnel, exclusive of those covered in 
paragraphs (b)(1) or (b)(2) of this section, in positions involving use 
of firearms where the duties also require potential contact with, or 
proximity to, the public at large;
    (iv) Personnel directly engaged in construction, maintenance, or 
operation of nuclear reactors; or
    (v) Personnel directly engaged in production, use, storage, 
transportation, or disposal of hazardous materials sufficient to cause 
significant harm to the environment or public health and safety.
    (3) Other positions determined by the DOE, after consultation with 
the contractor, to have the potential to significantly affect the 
environment, public health and safety, or national security.
    (c) Each contractor shall require random testing of any individual, 
whether or not an employee, who is allowed unescorted access to the 
control areas

[[Page 327]]

of the following DOE reactors: Advanced Test Reactor (ATR); C Production 
Reactor (C); Experimental Breeder Reactor II (EBR-II); Fast Flux Test 
Facility (FFTF); High Flux Beam Reactor (HFBR); High Flux Isotope 
Reactor (HFIR); K Production Reactor (K); L Production Reactor (L); N 
Production Reactor (N); Oak Ridge Research Reactor (ORR); and P 
Production Reactor (P). A confirmed positive test shall result in such 
an individual being denied unescorted access. If such an individual is 
not an employee of the contractor, that individual may be granted 
unescorted access only after the individual meets the conditions 
established in Sec. 707.14(d) of this part. If, after restoration of 
unescorted access, such an individual is determined to have used illegal 
drugs for a second time, unescorted access shall be denied for a period 
of not less than three (3) years. Such an individual thereafter shall be 
granted unescorted access only upon a determination by DOE that a grant 
of unescorted access to the individual presents no unacceptable safety 
or security risk. If such an individual is an employee, that individual 
is subject to the other requirements of this part, including appropriate 
disciplinary measures.
    (d) A position otherwise subject to testing under this part may be 
exempted from such testing if it is within the scope of another 
comparable Federal drug testing program, as determined by DOE, after 
consultation with the contractor, to avoid unnecessary multiple tests.

[57 FR 32656, July 22, 1992, as amended at 73 FR 3863, Jan. 23, 2008]



Sec. 707.8  Applicant drug testing.

    An applicant for a testing designated position will be tested for 
the use of illegal drugs before final selection for employment or 
assignment to such a position. Provisions of this part do not prohibit 
contractors from conducting drug testing on applicants for employment in 
any position.



Sec. 707.9  Drug testing as a result of an occurrence.

    When there is an occurrence which is required to be reported to DOE 
by the contractor, under contract provisions incorporating applicable 
DOE Orders, rules, and regulations, it may be necessary to test 
individuals in testing designated positions, or individuals with 
unescorted access to the control areas of the DOE reactors listed in 
Sec. 707.7(c), for the use of illegal drugs, if such individuals could 
have caused or contributed to the conditions which caused the 
occurrence. For an occurrence requiring immediate notification or 
reporting as required by applicable DOE Orders, rules, and regulations, 
the contractor will require testing as soon as possible after the 
occurrence but within 24 hours of the occurrence, unless DOE determines 
that it is not feasible to do so. For other occurrences requiring 
notifications to DOE as required by applicable DOE Orders, rules, and 
regulations, the contractor may require testing.



Sec. 707.10  Drug testing for reasonable suspicion of illegal drug use.

    (a)(1) It may be necessary to test any employee in a testing 
designated position, or individuals with unescorted access to the 
control areas of the DOE reactors listed in Sec. 707.7(c), for the use 
of illegal drugs, if the behavior of such an individual creates the 
basis for reasonable suspicion of the use of illegal drugs. Two or more 
supervisory or management officials, at least one of whom is in the 
direct chain of supervision of the employee, or is a physician from the 
site occupational medical department, must agree that such testing is 
appropriate. Reasonable suspicion must be based on an articulable belief 
that an employee uses illegal drugs, drawn from particularized facts and 
reasonable inferences from those facts.
    (2) Such a belief may be based upon, among other things:
    (i) Observable phenomena, such as direct observation of:
    (A) The use or possession of illegal drugs; or
    (B) The physical symptoms of being under the influence of drugs;
    (ii) A pattern of abnormal conduct or erratic behavior;
    (iii) Arrest for a conviction of a drug related offense, or the 
identification of

[[Page 328]]

the individual as the focus of a criminal investigation into illegal 
drug possession use, or trafficking;
    (iv) Information that is either provided by a reliable and credible 
source or is independently corroborated;
    (v) Evidence that an employee has tampered with a drug test; or
    (vi) Temperature of the urine specimen is outside the range of 32.5-
37.7 degrees centigrade or 90.5-99.8 degrees Fahrenheit.
    (b) The fact that an employee had a confirmed positive test for the 
use for the use of illegal drugs at some prior time, or has undergone a 
period of rehabilitation or treatment, will not, in and of itself, be 
grounds for testing on the basis of reasonable suspicion.
    (c) The requirements of this part relating to the testing for the 
use of illegal drugs are not intended to prohibit the contractor from 
pursuing other existing disciplinary procedures or from requiring 
medical evaluation of any employee exhibiting aberrant or unusual 
behavior.



Sec. 707.11  Drugs for which testing is performed.

    Where testing is performed under this part, at a minimum, 
contractors will be required to test for the use of the following drugs 
or classes of drugs: marijuana; cocaine; opiates; phencyclidine; and 
amphetamines. However, when conducting reasonable suspicion or 
occurrence testing, the contractor may test for any drug listed in 
Schedules I or II of the Controlled Substances Act.



Sec. 707.12  Specimen collection, handling and laboratory analysis for drug testing.

    (a) Procedures for providing urine specimens must allow individual 
privacy, unless there is reason to believe that a particular individual 
may alter or substitute the specimen to be provided. Contractors shall 
utilize a chain of custody procedure for maintaining control and 
accountability from point of collection to final disposition of 
specimens, and testing laboratories shall use appropriate cutoff levels 
in screening specimens to determine whether they are negative or 
positive for a specific drug, consistent with the HHS Mandatory 
Guidelines (see Sec. 707.5(a)). The contractor shall ensure that only 
testing laboratories certified by the Department of Health and Human 
Services, under subpart C of the HHS Mandatory Guidelines are utilized.
    (b)(1) If the individual refuses to cooperate with the urine 
collection (e.g., refusal to provide a specimen, or to complete 
paperwork), then the collection site person shall inform the MRO and 
shall document the non-cooperation on the specimen chain of custody 
form. The MRO shall report the failure to cooperate to the appropriate 
management authority, who shall report to DOE if the individual holds an 
access authorization. Individuals so failing to cooperate shall be 
treated in all respects as if they had been tested and had been 
determined to have used an illegal drug. The contractor may apply 
additional sanctions consistent with its disciplinary policy.
    (2) The collection site person shall ascertain that there is a 
sufficient amount of urine to conduct an initial test, a confirmatory 
test, and a retest, in accordance with the HHS Mandatory Guidelines. If 
there is not a sufficient amount of urine, additional urine will be 
collected in a separate container. The individual may be given 
reasonable amounts of liquid and a reasonable amount of time in which to 
provide the specimen required. The individual and the collection site 
person must keep the specimen in view at all times. In the event that 
the individual fails to provide a sufficient amount of urine, the amount 
collected will be noted on the ``Urine Sample Custody Document.'' In 
this case, the collection site person will telephone the individual's 
supervisor who will determine the next appropriate action. This may 
include deciding to reschedule the individual for testing, to return the 
individual to his or her work site and initiate disciplinary action, or 
both.

[57 FR 32656, July 22, 1992, as amended at 73 FR 3863, Jan. 23, 2008]

[[Page 329]]



Sec. 707.13  Medical review of results of tests for illegal drug use.

    (a) All test results shall be submitted for medical review by the 
MRO. A confirmed positive test for drugs shall consist of an initial 
test performed by the immunoassay method, with positive results on that 
initial test confirmed by another test, performed by the gas 
chromatography/mass spectrometry method (GC/MS). This procedure is 
described in paragraphs 2.4 (e) and (f) of the HHS Mandatory Guidelines.
    (b) The Medical Review Officer will consider the medical history of 
the employee or applicant, as well as any other relevant biomedical 
information. When there is a confirmed positive test result, the 
employee or applicant will be given an opportunity to report to the MRO 
the use of any prescription or over-the-counter medication. If the MRO 
determines that there is a legitimate medical explanation for a 
confirmed positive test result, consistent with legal and non-abusive 
drug use, the MRO will certify that the test results do not meet the 
conditions for a determination of use of illegal drugs. If no such 
certification can be made, the MRO will make a determination of use of 
illegal drugs. Determinations of use of illegal drugs will be made in 
accordance with the criteria provided in the Medical Review Officer 
Manual issued by the Department of Health and Human Services [DHHS 
Publication No. (ADM) 88-1526].



Sec. 707.14  Action pursuant to a determination of illegal drug use.

    (a) When an applicant for employment has been tested and determined 
to have used an illegal drug, processing for employment will be 
terminated and the applicant will be so notified.
    (b)(1) When an employee who is in a testing designated position has 
been tested and determined to have used an illegal drug, the contractor 
shall immediately remove that employee from the testing designated 
position; if such employee also holds, or is an applicant for, an access 
authorization, then the contractor shall immediately notify DOE security 
officials for appropriate adjudication. If this is the first 
determination of use of illegal drugs by that employee (for example, the 
employee has not previously signed a DOE drug certification, and has not 
previously tested positive for use of illegal drugs), the employee may 
be offered a reasonable opportunity for rehabilitation, consistent with 
the contractor's policies. If rehabilitation is offered, the employee 
will be placed in a non-testing designated position, which does not 
require a security clearance, provided there is such an acceptable 
position in which the individual can be placed during rehabilitation; if 
there is no acceptable non-testing designated position, the employee 
will be placed on sick, annual, or other leave status, for a reasonable 
period sufficient to permit rehabilitation. However, the employee will 
not be protected from disciplinary action which may result from 
violations of work rules other than a positive test result for illegal 
drugs.
    (2) Following a determination by the site occupational medical 
department, after counseling or rehabilitation, that the employee can 
safely return to duty, the contractor may offer the employee 
reinstatement, in the same or a comparable position to the one held 
prior to the removal, consistent with the contractor's policies and the 
requirements of 10 CFR part 710. Failure to take the opportunity for 
rehabilitation, if it has been made available, for the use of illegal 
drugs, will require significant disciplinary action up to and including 
removal from employment under the DOE contract, in accordance with the 
contractor's policies. Any employee who is twice determined to have used 
illegal drugs shall in all cases be removed from employment under the 
DOE contract. Also, if an employee who has signed a DOE drug 
certification violates the terms of the certification, DOE shall conduct 
a timely review of the circumstances of such violation, and the 
individual's continued eligibility for a DOE access authorization shall 
be determined under the provisions of 10 CFR part 710, ``Criteria and 
Procedures for Determining Eligibility for Access to Classified Matter 
or Significant Quantities of Special Nuclear Material.''
    (c) An employee who has been removed from a testing designated 
position because of the use of illegal drugs

[[Page 330]]

may not be returned to such position until that employee has:
    (1) Successfully completed counseling or a program of 
rehabilitation;
    (2) Undergone a urine drug test with a negative result; and
    (3) Been evaluated by the site occupational medical department, 
which has determined that the individual is capable of safely returning 
to duty.
    (d) An individual who is not an employee of a contractor who has 
been denied unescorted access because of the use of illegal drugs may 
not have the unescorted access reinstated until that individual has:
    (1) Provided evidence of successful completion of counseling or a 
program of rehabilitation;
    (2) Undergone a urine drug test with a negative result; and
    (3) Been evaluated by the site occupational medical department, 
which has determined that the individual is capable of being permitted 
unescorted access to a reactor control area.
    (e) If a DOE access authorization is involved, DOE must be notified 
of a contractor's intent to return to a testing designated position an 
employee removed from such duty for use of illegal drugs. Positions 
identified in Sec. 707.7(b)(1) and (2) will require DOE approval prior 
to return to a testing designated position.
    (f) An individual who has been notified of a positive test result 
may request a retest of the same sample at the same or another certified 
laboratory. The individual shall bear the costs of transportation and/or 
testing of the specimen. The contractor will inform employees of their 
right to request a retest under the provisions of this paragraph.
    (g) After an employee determined to have used illegal drugs has been 
returned to duty, the employee shall be subject to unannounced drug 
testing, at intervals, for a period of 12 months.



Sec. 707.15  Collective bargaining.

    When establishing drug testing programs, contractors who are parties 
to collective bargaining agreements will negotiate with employee 
representatives, as appropriate, under labor relations laws or 
negotiated agreements. Such negotiation, however, cannot change or alter 
the requirements of this rule because DOE security requirements 
themselves are non-negotiable under the security provisions of DOE 
contracts. Employees covered under collective bargaining agreements will 
not be subject to the provisions of this rule until those agreements 
have been modified, as necessary; provided, however, that if one year 
after commencement of negotiation the parties have failed to reach 
agreement, an impasse will be determined to have been reached and the 
contractor will unilaterally implement the requirements of this rule.



Sec. 707.16  Records.

    (a) Confirmed positive test results shall be provided to the Medical 
Review Officer and other contractor and DOE officials with a need to 
know. Any other disclosure may be made only with the written consent of 
the individual.
    (b) Contractors shall maintain maximum confidentiality of records 
related to illegal drug use, to the extent required by applicable 
statutes and regulations (including, but not limited to, 42 U.S.C. 
290dd-3, 42 U.S.C. 290ee-3, and 42 CFR part 2). If such records are 
sought from the contractor for criminal investigations, or to resolve a 
question or concern relating to the Personnel Assurance Program 
certification or access authorization under 10 CFR part 710, any 
applicable procedures in statute or regulation for disclosure of such 
information shall be followed. Moreover, owing to DOE's express 
environmental, public health and safety, and national security 
interests, and the need to exercise proper contractor oversight, DOE 
must be kept fully apprised of all aspects of the contractor's program, 
including such information as incidents involving reasonable suspicion, 
occurrences, and confirmed test results, as well as information 
concerning test results in the aggregate.
    (c) Unless otherwise approved by DOE, the contractors shall ensure 
that all laboratory records relating to positive drug test results, 
including initial

[[Page 331]]

test records and chromatographic tracings, shall be retained by the 
laboratory in such a manner as to allow retrieval of all information 
pertaining to the individual urine specimens for a minimum period of 
five years after completion of testing of any given specimen, or longer 
if so instructed by DOE or by the contractor. In addition, a frozen 
sample of all positive urine specimens shall be retained by the 
laboratory for at least six months, or longer if so instructed by DOE.
    (d) The contractor shall maintain as part of its medical records 
copies of specimen chain of custody forms.
    (e) The specimen chain of custody form will contain the following 
information:
    (1) Date of collection;
    (2) Tested person's name;
    (3) Tested employee/applicant's social security number or other 
identification number unique to the individual;
    (4) Specimen number;
    (5) Type of test (random, applicant, occurrence, reasonable 
suspicion, follow-up, or other);
    (6) Temperature range of specimen;
    (7) Remarks regarding unusual behavior or conditions;
    (8) Collector's signature; and
    (9) Certification signature of specimen provider certifying that 
specimen identified is in fact the specimen the individual provided.



Sec. 707.17  Permissible actions in the event of contractor noncompliance.

    Actions available to DOE in the event of contractor noncompliance 
with the provisions of this part or otherwise performing in a manner 
inconsistent with its approved program include, but are not limited to, 
suspension or debarment, contract termination, or reduction in fee in 
accordance with the contract terms.



PART 708_DOE CONTRACTOR EMPLOYEE PROTECTION PROGRAM--Table of Contents



                      Subpart A_General Provisions

Sec.
708.1 What is the purpose of this part?
708.2 What are the definitions of terms used in this part?
708.3 What employee complaints are covered?
708.4 What employee complaints are not covered?
708.5 What employee conduct is protected from retaliation by an 
          employer?
708.6 What constitutes ``a reasonable fear of serious injury?''
708.7 What must an employee do before filing a complaint based on 
          retaliation for refusal to participate?
708.8 Does this part apply to pending cases?
708.9 When is a complaint or other document considered to be ``filed'' 
          under this part?

             Subpart B_Employee Complaint Resolution Process

708.10 Where does an employee file a complaint?
708.11 Will an employee's identity be kept confidential if the employee 
          so requests?
708.12 What information must an employee include in a complaint?
708.13 What must an employee do to show that all grievance-arbitration 
          procedures have been exhausted?
708.14 How much time does an employee have to file a complaint?
708.15 What happens if an employee files a complaint under this part and 
          also pursues a remedy under State or other law?
708.16 Will a contractor or a labor organization that represents an 
          employee be notified of an employee's complaint and be given 
          an opportunity to respond with information?
708.17 When may DOE dismiss a complaint for lack of jurisdiction or 
          other good cause?
708.18 How can an employee appeal dismissal of a complaint for lack of 
          jurisdiction or other good cause?
708.19 How can a party obtain review by the Secretary of Energy of a 
          decision on appeal of a dismissal?
708.20 Will DOE encourage the parties to resolve the complaint 
          informally?

          Subpart C_Investigation, Hearing and Decision Process

708.21 What are the employee's options if the complaint cannot be 
          resolved informally?
708.22 What process does the Office of Hearings and Appeals use to 
          conduct an investigation of the complaint?
708.23 How does the Office of Hearings and Appeals issue a report of 
          investigation?
708.24 Will there always be a hearing after a report of investigation is 
          issued?
708.25 Who will conduct the hearing?
708.26 When and where will the hearing be held?
708.27 May the Hearing Officer recommend mediation to the parties?

[[Page 332]]

708.28 What procedures govern a hearing conducted by the Office of 
          Hearings and Appeals?
708.29 What must the parties to a complaint prove?
708.30 What process does the Hearing Officer follow to issue an initial 
          agency decision?
708.31 If no hearing is conducted, what is the process for issuing an 
          initial agency decision?
708.32 Can a dissatisfied party appeal an initial agency decision?
708.33 What is the procedure for an appeal?
708.34 What is the process for issuing an appeal decision?
708.35 How can a party obtain review by the Secretary of Energy of an 
          appeal decision?
708.36 What remedies for retaliation may be ordered in initial and final 
          agency decisions?
708.37 Will an employee whose complaint is denied by a final agency 
          decision be reimbursed for costs and expenses incurred in 
          pursuing the complaint?
708.38 How is a final agency decision implemented?
708.39 Is a decision and order implemented under this regulation 
          considered a claim by the government against a contractor or a 
          decision by the contracting officer under sections 6 and 7 of 
          the Contract Disputes Act?
708.40 Are contractors required to inform their employees about this 
          program?
708.41 Will DOE ever refer a complaint filed under this part to another 
          agency for investigation and a decision?
708.42 May the deadlines established by this part be extended by any DOE 
          official?
Sec. 708.43 Does this rule impose an affirmative duty on DOE 
          contractors not to retaliate?

    Authority: 42 U.S.C. 2201(b), 2201(c), 2201(i), and 2201(p); 42 
U.S.C. 5814 and 5815; 42 U.S.C. 7251, 7254, 7255, and 7256; and 5 U.S.C. 
Appendix 3.

    Source: 64 FR 12870, Mar. 15, 1999, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 708.1  What is the purpose of this part?

    This part provides procedures for processing complaints by employees 
of DOE contractors alleging retaliation by their employers for 
disclosure of information concerning danger to public or worker health 
or safety, substantial violations of law, or gross mismanagement; for 
participation in Congressional proceedings; or for refusal to 
participate in dangerous activities.



Sec. 708.2  What are the definitions of terms used in this part?

    For purposes of this part:
    Contractor means a seller of goods or services who is a party to:
    (1) A management and operating contract or other type of contract 
with DOE to perform work directly related to activities at DOE-owned or 
-leased facilities, or
    (2) A subcontract under a contract of the type described in 
paragraph (1) of this definition, but only with respect to work related 
to activities at DOE-owned or -leased facilities.
    Day means a calendar day.
    Discovery means a process used to enable the parties to learn about 
each other's evidence before a hearing takes place, including oral 
depositions, written interrogatories, requests for admissions, 
inspection of property and requests for production of documents.
    DOE Official means any officer or employee of DOE whose duties 
include program management or the investigation or enforcement of any 
law, rule, or regulation relating to Government contractors or the 
subject matter of a contract.
    EC Director means the Director of the Office of Employee Concerns at 
DOE Headquarters, or any official to whom the Director delegates his or 
her functions under this part.
    Employee means a person employed by a contractor, and any person 
previously employed by a contractor if that person's complaint alleges 
that employment was terminated for conduct described in Sec. 708.5 of 
this subpart.
    Field element means a DOE field-based office that is responsible for 
the management, coordination, and administration of operations at a DOE 
facility.
    Head of Field Element means the manager or head of a DOE operations 
office or field office, or any official to whom those individuals 
delegate their functions under this part.
    Hearing Officer means an individual appointed by the OHA Director to 
conduct a hearing on a complaint filed under this part.
    Management and operating contract means an agreement under which DOE

[[Page 333]]

contracts for the operation, maintenance, or support of a Government-
owned or -leased research, development, special production, or testing 
establishment that is wholly or principally devoted to one or more of 
the programs of DOE.
    Mediation means an informal, confidential process in which a neutral 
third person assists the parties in reaching a mutually acceptable 
resolution of their dispute; the neutral third person does not render a 
decision.
    OHA Director means the Director of the Office of Hearings and 
Appeals, or any official to whom the Director delegates his or her 
functions under this part.
    Party means an employee, contractor, or other party named in a 
proceeding under this part.
    Retaliation means an action (including intimidation, threats, 
restraint, coercion or similar action) taken by a contractor against an 
employee with respect to employment (e.g., discharge, demotion, or other 
negative action with respect to the employee's compensation, terms, 
conditions or privileges of employment) as a result of the employee's 
disclosure of information, participation in proceedings, or refusal to 
participate in activities described in Sec. 708.5 of this subpart.
    You means the employee who files a complaint under this part, or the 
complainant.



Sec. 708.3  What employee complaints are covered?

    This part applies to a complaint of retaliation filed by an employee 
of a contractor that performs work on behalf of DOE, directly related to 
activities at a DOE-owned or -leased site, if the complaint stems from a 
disclosure, participation, or refusal described in Sec. 708.5.



Sec. 708.4  What employee complaints are not covered?

    If you are an employee of a contractor, you may not file a complaint 
against your employer under this part if:
    (a) The complaint is based on race, color, religion, sex, age, 
national origin, or other similar basis; or
    (b) The complaint involves misconduct that you, acting without 
direction from your employer, deliberately caused, or in which you 
knowingly participated; or
    (c) Except as provided in Sec. 708.15(a), the complaint is based on 
the same facts for which you have chosen to pursue a remedy available 
under:
    (1) Department of Labor regulations at 29 CFR part 24, ``Procedures 
for the Handling of Discrimination Complaints under Federal Employee 
Protection Statutes;''
    (2) Federal Acquisition Regulations, 48 CFR part 3, ``Federal 
Acquisition Regulation; Whistleblower Protection for Contractor 
Employees (Ethics);'' or
    (3) State or other applicable law, including final and binding 
grievance-arbitration, as described in Sec. 708.15 of subpart B; or
    (d) The complaint is based on the same facts in which you, in the 
course of a covered disclosure or participation, improperly disclosed 
Restricted Data, national security information, or any other classified 
or sensitive information in violation of any Executive Order, statute, 
or regulation. This part does not override any provision or requirement 
of any regulation pertaining to Restricted Data, national security 
information, or any other classified or sensitive information; or
    (e) The complaint deals with ``terms and conditions of employment'' 
within the meaning of the National Labor Relations Act, except as 
provided in Sec. 708.5.



Sec. 708.5  What employee conduct is protected from retaliation by an employer?

    If you are an employee of a contractor, you may file a complaint 
against your employer alleging that you have been subject to retaliation 
for:
    (a) Disclosing to a DOE official, a member of Congress, any other 
government official who has responsibility for the oversight of the 
conduct of operations at a DOE site, your employer, or any higher tier 
contractor, information that you reasonably believe reveals--
    (1) A substantial violation of a law, rule, or regulation;

[[Page 334]]

    (2) A substantial and specific danger to employees or to public 
health or safety; or
    (3) Fraud, gross mismanagement, gross waste of funds, or abuse of 
authority; or
    (b) Participating in a Congressional proceeding or an administrative 
proceeding conducted under this part; or
    (c) Subject to Sec. 708.7 of this subpart, refusing to participate 
in an activity, policy, or practice if you believe participation would--
    (1) Constitute a violation of a federal health or safety law; or
    (2) Cause you to have a reasonable fear of serious injury to 
yourself, other employees, or members of the public.

[57 FR 7541, Mar. 3, 1992, as amended at 65 FR 6319, Feb. 9, 2000]



Sec. 708.6  What constitutes ``a reasonable fear of serious injury?''

    Participation in an activity, policy, or practice may cause an 
employee to have a reasonable fear of serious injury that justifies a 
refusal to participate if:
    (a) A reasonable person, under the circumstances that confronted the 
employee, would conclude there is a substantial risk of a serious 
accident, injury, or impairment of health or safety resulting from 
participation in the activity, policy, or practice; or
    (b) An employee, because of the nature of his or her employment 
responsibilities, does not have the training or skills needed to 
participate safely in the activity or practice.

[57 FR 7541, Mar. 3, 1992, as amended at 65 FR 6319, Feb. 9, 2000]



Sec. 708.7  What must an employee do before filing a complaint based on retaliation for refusal to participate?

    You may file a complaint for retaliation for refusing to participate 
in an activity, policy, or practice only if:
    (a) Before refusing to participate in the activity, policy, or 
practice, you asked your employer to correct the violation or remove the 
danger, and your employer refused to take such action; and
    (b) By the 30th day after you refused to participate, you reported 
the violation or dangerous activity, policy, or practice to a DOE 
official, a member of Congress, another government official with 
responsibility for the oversight of the conduct of operations at the DOE 
site, your employer, or any higher tier contractor, and stated your 
reasons for refusing to participate.



Sec. 708.8  Does this part apply to pending cases?

    The procedures in this part apply prospectively in any complaint 
proceeding pending on the effective date of this part.



Sec. 708.9  When is a complaint or other document considered to be ``filed'' under this part?

    Under this part, a complaint or other document is considered 
``filed'' on the date it is mailed or on the date it is personally 
delivered to the specified official or office.



             Subpart B_Employee Complaint Resolution Process



Sec. 708.10  Where does an employee file a complaint?

    (a) If you were employed by a contractor whose contract is handled 
by a contracting officer located in DOE Headquarters when the alleged 
retaliation occurred, you must file two copies of your written complaint 
with the EC Director.
    (b) If you were employed by a contractor at a DOE field facility or 
site when the alleged retaliation occurred, you must file two copies of 
your written complaint with the Head of Field Element at the DOE field 
element with jurisdiction over the contract.



Sec. 708.11  Will an employee's identity be kept confidential if the employee so requests?

    No. The identity of an employee who files a complaint under this 
part appears on the complaint. A copy of the complaint is provided to 
the contractor and it becomes a public document.



Sec. 708.12  What information must an employee include in a complaint?

    Your complaint does not need to be in any specific form but must be 
signed by you and contain the following:
    (a) A statement specifically describing

[[Page 335]]

    (1) The alleged retaliation taken against you and
    (2) The disclosure, participation, or refusal that you believe gave 
rise to the retaliation;
    (b) A statement that you are not currently pursuing a remedy under 
State or other applicable law, as described in Sec. 708.15 of this 
subpart;
    (c) A statement that all of the facts that you have included in your 
complaint are true and correct to the best of your knowledge and belief; 
and
    (d) An affirmation, as described in Sec. 708.13 of this subpart, 
that you have exhausted (completed) all applicable grievance or 
arbitration procedures.



Sec. 708.13  What must an employee do to show that all grievance-arbitration procedures have been exhausted?

    (a) To show that you have exhausted all applicable grievance-
arbitration procedures, you must:
    (1) State that all available opportunities for resolution through an 
applicable grievance-arbitration procedure have been exhausted, and 
provide the date on which the grievance-arbitration procedure was 
terminated and the reasons for termination; or
    (2) State that you filed a grievance under applicable grievance-
arbitration procedures, but more than 150 days have passed and a final 
decision on it has not been issued, and provide the date that you filed 
your grievance; or
    (3) State that your employer has established no grievance-
arbitration procedures.
    (b) If you do not provide the information specified in Sec. 
708.13(a), your complaint may be dismissed for lack of jurisdiction as 
provided in Sec. 708.17 of this subpart.



Sec. 708.14  How much time does an employee have to file a complaint?

    (a) You must file your complaint by the 90th day after the date you 
knew, or reasonably should have known, of the alleged retaliation.
    (b) The period for filing a complaint does not include time spent 
attempting to resolve the dispute through an internal company grievance-
arbitration procedure. The time period for filing stops running on the 
day the internal grievance is filed and begins to run again on the 
earlier of:
    (1) The day after such dispute resolution efforts end; or
    (2) 150 days after the internal grievance was filed if a final 
decision on the grievance has not been issued.
    (c) The period for filing a complaint does not include time spent 
resolving jurisdictional issues related to a complaint you file under 
State or other applicable law. The time period for filing stops running 
on the date the complaint under State or other applicable law is filed 
and begins to run again the day after a final decision on the 
jurisdictional issues is issued.
    (d) If you do not file your complaint during the 90-day period, the 
Head of Field Element or EC Director (as applicable) will give you an 
opportunity to show any good reason you may have for not filing within 
that period, and that official may, in his or her discretion, accept 
your complaint for processing.



Sec. 708.15  What happens if an employee files a complaint under this part and also pursues a remedy under State or other law?

    (a) You may not file a complaint under this part if, with respect to 
the same facts, you choose to pursue a remedy under State or other 
applicable law, including final and binding grievance-arbitration 
procedures, unless:
    (1) Your complaint under State or other applicable law is dismissed 
for lack of jurisdiction;
    (2) Your complaint was filed under 48 CFR part 3, Subpart 3.9 and 
the Inspector General, after conducting an initial inquiry, determines 
not to pursue it; or
    (3) You have exhausted grievance-arbitration procedures pursuant to 
Sec. 708.13, and issues related to alleged retaliation for conduct 
protected under Sec. 708.5 remain.
    (b) Pursuing a remedy other than final and binding grievance-
arbitration procedures does not prevent you from filing a complaint 
under this part.
    (c) You are considered to have filed a complaint under State or 
other applicable law if you file a complaint, or other pleading, with 
respect to the same facts in a proceeding established

[[Page 336]]

or mandated by State or other applicable law, whether you file such 
complaint before, concurrently with, or after you file a complaint under 
this part.
    (d) If you file a complaint under State or other applicable law 
after filing a complaint under this part, your complaint under this 
regulation will be dismissed under Sec. 708.17(c)(3).

[57 FR 7541, Mar. 3, 1992, as amended at 65 FR 6319, Feb. 9, 2000]



Sec. 708.16  Will a contractor or a labor organization that represents an employee

be notified of an employee's complaint and be given an opportunity to 
          respond with information?

    (a) By the 15th day after receiving your complaint, the Head of 
Field Element or EC Director (as applicable) will provide your employer 
a copy of your complaint. Your employer has 10 days from receipt of your 
complaint to submit any comments it wishes to make regarding the 
allegations in the complaint.
    (b) If you are part of a bargaining unit represented for purposes of 
collective bargaining by a labor organization, the Head of Field Element 
or EC Director (as applicable) will provide your representative a copy 
of your complaint by the 15th day after receiving it. The labor 
organization will be advised that it has 10 days from the receipt of 
your complaint to submit any comments it wishes to make regarding the 
allegations in the complaint.



Sec. 708.17  When may DOE dismiss a complaint for lack of jurisdiction or other good cause?

    (a) The Head of Field Element or EC Director (as applicable) may 
dismiss your complaint for lack of jurisdiction or for other good cause 
after receiving your complaint, either on his or her own initiative or 
at the request of a party named in your complaint. Such decisions are 
generally issued by the 15th day after the receipt of your employer's 
comments.
    (b) The Head of Field Element or EC Director (as applicable) will 
notify you by certified mail, return receipt requested, if your 
complaint is dismissed for lack of jurisdiction or other good cause, and 
give you specific reasons for the dismissal, and will notify other 
parties of the dismissal.
    (c) Dismissal for lack of jurisdiction or other good cause is 
appropriate if:
    (1) Your complaint is untimely; or
    (2) The facts, as alleged in your complaint, do not present issues 
for which relief can be granted under this part; or
    (3) You filed a complaint under State or other applicable law with 
respect to the same facts as alleged in a complaint under this part; or
    (4) Your complaint is frivolous or without merit on its face; or
    (5) The issues presented in your complaint have been rendered moot 
by subsequent events or substantially resolved; or
    (6) Your employer has made a formal offer to provide the remedy that 
you request in your complaint or a remedy that DOE considers to be 
equivalent to what could be provided as a remedy under this part.



Sec. 708.18  How can an employee appeal dismissal of a complaint for lack of jurisdiction or other good cause?

    (a) If your complaint is dismissed by the Head of Field Element or 
EC Director, the administrative process is terminated unless you appeal 
the dismissal to the OHA Director by the 10th day after you receive the 
notice of dismissal as evidenced by a receipt for delivery of certified 
mail.
    (b) If you appeal a dismissal to the OHA Director, you must send 
copies of your appeal to the Head of Field Element or EC Director (as 
applicable) and all parties. Your appeal must include a copy of the 
notice of dismissal, and state the reasons why you think the dismissal 
was erroneous.
    (c) The OHA Director will issue a decision on your appeal and notify 
the parties of the decision by the 30th day after it is received.
    (d) The OHA Director's decision, either upholding the dismissal by 
the Head of Field Element or EC Director or ordering further processing 
of your complaint, is the final decision on your appeal, unless a party 
files a petition for Secretarial review by the 30th day after receiving 
the appeal decision.

[[Page 337]]



Sec. 708.19  How can a party obtain review by the Secretary of Energy of a decision on appeal of a dismissal?

    (a) By the 30th day after receiving a decision on an appeal under 
Sec. 708.18 from the OHA Director, any party may file a petition for 
Secretarial review of a dismissal with the Office of Hearings and 
Appeals.
    (b) By the 15th day after filing the petition for Secretarial 
review, a party must file a statement setting forth the arguments in 
support of its position. A copy of the statement must be served on the 
other parties, who may file a response by the 20th day after receipt of 
the statement. Any response must also be served on the other parties.
    (c) All submissions permitted under this section must be filed with 
the Office of Hearings and Appeals.
    (d) After a petition for Secretarial review is filed, the Secretary 
(or his or her delegee) will issue the final agency decision on 
jurisdiction over the complaint. The Secretary will reverse or revise an 
appeal decision by the OHA Director only under extraordinary 
circumstances. In the event he or she determines that a revision in the 
appeal decision is appropriate, the Secretary will direct the OHA 
Director to issue an order either upholding the dismissal by the Head of 
Field Element or EC Director or ordering further processing of your 
complaint.



Sec. 708.20  Will DOE encourage the parties to resolve the complaint informally?

    (a) Yes. The Head of Field Element or EC Director (as applicable) 
may recommend that the parties attempt to resolve the complaint 
informally, for example, through mediation.
    (b) The period for attempting informal resolution of the complaint 
may not exceed 30 days from the date you filed your complaint, unless 
the parties agree to extend the time.
    (c) The 30-day period permitted for informal resolution of the 
complaint stops running when a request to dismiss your complaint on 
jurisdictional grounds is filed with the Head of Field Element or EC 
Director, and begins to run again on the date the OHA Director returns 
the complaint to the Head of Field Element or EC Director for further 
processing.
    (d) If the parties resolve the complaint informally, the Head of 
Field Element or EC Director (as applicable) must be given a copy of the 
settlement agreement or a written statement from you withdrawing the 
complaint.



          Subpart C_Investigation, Hearing and Decision Process



Sec. 708.21  What are the employee's options if the complaint cannot be resolved informally?

    (a) If the attempt at informal resolution is not successful, the 
Head of Field Element or EC Director (as applicable) will notify you in 
writing that you have the following options:
    (1) Request that your complaint be referred to the Office of 
Hearings and Appeals for a hearing without an investigation; or
    (2) Request that your complaint be referred to the Office of 
Hearings and Appeals for an investigation followed by a hearing.
    (b) You must notify the Head of Field Element or EC Director (as 
applicable), in writing, by the 20th day after receiving notice of your 
options, whether you request referral of your complaint to the Office of 
Hearings and Appeals for a hearing without an investigation, or an 
investigation followed by a hearing.
    (c) If the Head of Field Element or EC Director does not receive 
your response to the notice of options by the 20th day after your 
receipt of that notice, DOE will consider your complaint withdrawn.
    (d) If you timely request referral to the Office of Hearings and 
Appeals, the Head of Field Element or EC Director (as applicable) will 
forward your complaint to the OHA Director by the 5th day after receipt 
of your request.
    (e) The Head of the Field Element or EC Director (as applicable) 
will notify all parties that the complaint has been referred to the 
Office of Hearings and Appeals, and state whether you have requested a 
hearing without an investigation or requested an investigation followed 
by a hearing.

[[Page 338]]



Sec. 708.22  What process does the Office of Hearings and Appeals use to conduct an investigation of the complaint?

    (a) If you request a hearing without an investigation, the OHA 
Director will not initiate an investigation even if another party 
requests one.
    (b) If you request an investigation followed by a hearing, the OHA 
Director will appoint a person from the Office of Hearings and Appeals 
to conduct the investigation. The investigator may not participate or 
advise in the initial or final agency decision on your complaint.
    (c) The investigator will determine the appropriate scope of 
investigation based on the circumstances of the complaint. The 
investigator may enter and inspect places and records; make copies of 
records; interview persons alleged to have been involved in retaliation 
and other employees of the charged contractor who may have relevant 
information; take sworn statements; and require the production of any 
documents or other evidence.
    (d) A contractor must cooperate fully with the investigator by 
making employees and all pertinent evidence available upon request.
    (e) A person being interviewed in an investigation has the right to 
be represented by a person of his or her choosing.
    (f) Parties to the complaint are not entitled to be present at 
interviews conducted by an investigator.
    (g) If a person other than the complainant requests that his or her 
identity be kept confidential, the investigator may grant 
confidentiality, but must advise such person that confidentiality means 
that the Office of Hearings and Appeals will not identify the person as 
a source of information to anyone outside the Office of Hearings and 
Appeals, except as required by statute or other law, or as determined by 
the OHA Director to be unavoidable.



Sec. 708.23  How does the Office of Hearings and Appeals issue a report of investigation?

    (a) The investigator will complete the investigation and issue a 
report of investigation by the 60th day after the complaint is received 
by the Office of Hearings and Appeals, unless the OHA Director, for good 
cause, extends the investigation for no more than 30 days.
    (b) The investigator will provide copies of the report of 
investigation to the parties. The investigation will not be reopened 
after the report of investigation is issued.
    (c) If the parties informally resolve the complaint (e.g., through 
mediation) after an investigation is started, you must notify the OHA 
Director in writing of your decision to withdraw the complaint.



Sec. 708.24  Will there always be a hearing after a report of investigation is issued?

    (a) No. An employee may withdraw a hearing request after the report 
of investigation is issued. However, the hearing may be canceled only if 
all parties agree that they do not want a hearing.
    (b) If the hearing is canceled, the Hearing Officer will issue an 
initial agency decision pursuant to Sec. 708.31 of this subpart.



Sec. 708.25  Who will conduct the hearing?

    (a) The OHA Director will appoint a Hearing Officer from the Office 
of Hearings and Appeals to conduct a hearing.
    (b) The Hearing Officer may not be subject to the supervision or 
direction of the investigator.



Sec. 708.26  When and where will the hearing be held?

    (a) The Hearing Officer will schedule a hearing to be held by the 
90th day after receipt of the complaint, or issuance of the report of 
investigation, whichever is later. Any extension of the hearing date 
must be approved by the OHA Director.
    (b) The Hearing Officer will schedule the hearing for a location 
near the site where the alleged retaliation occurred or your place of 
employment, or at another location that is appropriate considering the 
circumstances of a particular case.



Sec. 708.27  May the Hearing Officer recommend mediation to the parties?

    The Hearing Officer may recommend, but may not require, that the 
parties

[[Page 339]]

attempt to resolve the complaint through mediation or other informal 
means at any time before issuance of an initial agency decision on the 
complaint.



Sec. 708.28  What procedures govern a hearing conducted by the Office of Hearings and Appeals?

    (a) In all hearings under this part:
    (1) The parties have the right to be represented by a person of 
their choosing or to proceed without representation. The parties are 
responsible for producing witnesses in their behalf, including 
requesting the issuance of subpoenas, if necessary;
    (2) Testimony of witnesses is given under oath or affirmation, and 
witnesses must be advised of the applicability of 18 U.S.C. 1001 and 
1621, dealing with the criminal penalties associated with false 
statements and perjury;
    (3) Witnesses are subject to cross-examination;
    (4) Formal rules of evidence do not apply, but OHA may use the 
Federal Rules of Evidence as a guide; and
    (5) A court reporter will make a transcript of the hearing.
    (b) The Hearing Officer has all powers necessary to regulate the 
conduct of proceedings:
    (1) The Hearing Officer may order discovery at the request of a 
party, based on a showing that the requested discovery is designed to 
produce evidence regarding a matter, not privileged, that is relevant to 
the subject matter of the complaint;
    (2) The Hearing Officer may permit parties to obtain discovery by 
any appropriate method, including deposition upon oral examination or 
written questions; written interrogatories; production of documents or 
things; permission to enter upon land or other property for inspection 
and other purposes; and requests for admission;
    (3) The Hearing Officer may issue subpoenas for the appearance of 
witnesses on behalf of either party, or for the production of specific 
documents or other physical evidence;
    (4) The Hearing Officer may rule on objections to the presentation 
of evidence; exclude evidence that is immaterial, irrelevant, or unduly 
repetitious; require the advance submission of documents offered as 
evidence; dispose of procedural requests; grant extensions of time; 
determine the format of the hearing; direct that written motions, 
documents, or briefs be filed with respect to issues raised during the 
course of the hearing; ask questions of witnesses; direct that 
documentary evidence be served upon other parties (under protective 
order if such evidence is deemed confidential); and otherwise regulate 
the conduct of the hearing;
    (5) The Hearing Officer may, at the request of a party or on his or 
her own initiative, dismiss a claim, defense, or party and make adverse 
findings upon the failure of a party or the party's representative to 
comply with a lawful order of the Hearing Officer, or, without good 
cause, to attend a hearing;
    (6) The Hearing Officer, upon request of a party, may allow the 
parties a reasonable time to file pre-hearing briefs or written 
statements with respect to material issues of fact or law. Any pre-
hearing submission must be limited to the issues specified and filed 
within the time prescribed by the Hearing Officer.
    (7) The parties are entitled to make oral closing arguments, but 
post-hearing submissions are only permitted by direction of the Hearing 
Officer.
    (8) Parties allowed to file written submissions must serve copies 
upon the other parties within the time prescribed by the Hearing 
Officer.
    (9) The Hearing Officer is prohibited, beginning with his or her 
appointment and until a final agency decision is issued, from initiating 
or otherwise engaging in ex parte (private) discussions with any party 
on the merits of the complaint.



Sec. 708.29  What must the parties to a complaint prove?

    The employee who files a complaint has the burden of establishing by 
a preponderance of the evidence that he or she made a disclosure, 
participated in a proceeding, or refused to participate, as described 
under Sec. 708.5, and that such act was a contributing factor in one or 
more alleged acts of retaliation against the employee by the contractor. 
Once the employee has met this burden, the burden shifts to the 
contractor to prove by clear and convincing evidence

[[Page 340]]

that it would have taken the same action without the employee's 
disclosure, participation, or refusal.



Sec. 708.30  What process does the Hearing Officer follow to issue an initial agency decision?

    (a) The Hearing Officer will issue an initial agency decision on 
your complaint by the 60th day after the later of:
    (1) The date the Hearing Officer approves the parties' agreement to 
cancel the hearing;
    (2) The date the Hearing Officer receives the transcript of the 
hearing; or
    (3) The date the Hearing Officer receives post-hearing submissions 
permitted under Sec. 708.28(b)(7) of this subpart.
    (b) The Hearing Officer will serve the initial agency decision on 
all parties.
    (c) An initial agency decision issued by the Hearing Officer will 
contain appropriate findings, conclusions, an order, and the factual 
basis for each finding, whether or not a hearing has been held on the 
complaint. In making such findings, the Hearing Officer may rely upon, 
but is not bound by, the report of investigation.
    (d) If the Hearing Officer determines that an act of retaliation has 
occurred, the initial agency decision will include an order for any form 
of relief permitted under Sec. 708.36.
    (e) If the Hearing Officer determines that an act of retaliation has 
not occurred, the initial agency decision will state that the complaint 
is denied.



Sec. 708.31  If no hearing is conducted, what is the process for issuing an initial agency decision?

    (a) If no party wants a hearing after the issuance of a report of 
investigation, the Hearing Officer will issue an initial agency decision 
by the 60th day after the hearing is canceled pursuant to Sec. 708.24. 
The standards in Sec. 708.30, governing the issuance of an initial 
agency decision, apply whether or not a hearing has been held on the 
complaint.
    (b) The Hearing Officer will serve the initial agency decision on 
all parties.



Sec. 708.32  Can a dissatisfied party appeal an initial agency decision?

    (a) Yes. By the 15th day after receiving an initial agency decision 
from the Hearing Officer, any party may file a notice of appeal with the 
OHA Director requesting review of the initial agency decision.
    (b) A party who appeals an initial agency decision (the appellant) 
must serve a copy of the notice of appeal on all other parties.
    (c) A party who receives an initial agency decision by a Hearing 
Officer has not exhausted its administrative remedies until an appeal 
has been filed with the OHA Director and a decision granting or denying 
the appeal has been issued.



Sec. 708.33  What is the procedure for an appeal?

    (a) By the 15th day after filing a notice of appeal under Sec. 
708.32, the appellant must file a statement identifying the issues that 
it wishes the OHA Director to review. A copy of the statement must be 
served on the other parties, who may file a response by the 20th day 
after receipt of the statement. Any response must also be served on the 
other parties.
    (b) In considering the appeal, the OHA Director:
    (1) May initiate an investigation of any statement contained in the 
request for review and utilize any relevant facts obtained by such 
investigation in conducting the review of the initial agency decision;
    (2) May solicit and accept submissions from any party that are 
relevant to the review. The OHA Director may establish appropriate times 
to allow for such submissions;
    (3) May consider any other source of information that will advance 
the evaluation, provided that all parties are given an opportunity to 
respond to all third person submissions; and
    (4) Will close the record on appeal after receiving the last 
submission permitted under this section.



Sec. 708.34  What is the process for issuing an appeal decision?

    (a) If there is no appeal of an initial agency decision, and the 
time for filing an appeal has passed, the initial agency

[[Page 341]]

decision becomes the final agency decision.
    (b) If there is an appeal of an initial agency decision, the OHA 
Director will issue an appeal decision based on the record of 
proceedings by the 60th day after the record is closed.
    (1) An appeal decision issued by the OHA Director will contain 
appropriate findings, conclusions, an order, and the factual basis for 
each finding, whether or not a hearing has been held on the complaint. 
In making such findings, the OHA Director may rely upon, but is not 
bound by, the report of investigation and the initial agency decision.
    (2) If the OHA Director determines that an act of retaliation has 
occurred, the appeal decision will include an order for any form of 
relief permitted under Sec. 708.36.
    (3) If the OHA Director determines that the contractor charged has 
not committed an act of retaliation, the appeal decision will deny the 
complaint.
    (c) The OHA Director will send an appeal decision to all parties and 
to the Head of Field Element or EC Director having jurisdiction over the 
contract under which you were employed when the alleged retaliation 
occurred.
    (d) The appeal decision issued by the OHA Director is the final 
agency decision unless a party files a petition for Secretarial review 
by the 30th day after receiving the appeal decision.



Sec. 708.35  How can a party obtain review by the Secretary of Energy of an appeal decision?

    (a) By the 30th day after receiving an appeal decision from the OHA 
Director, any party may file a petition for Secretarial review with the 
Office of Hearings and Appeals.
    (b) By the 15th day after filing a petition for Secretarial review, 
the petitioner must file a statement identifying the issues that it 
wishes the Secretary to consider. A copy of the statement must be served 
on the other parties, who may file a response by the 20th day after 
receipt of the statement. Any response must also be served on the other 
parties.
    (c) All submissions permitted under this section must be filed with 
the Office of Hearings and Appeals.
    (d) After a petition for Secretarial review is filed, the Secretary 
(or his or her delegee) will issue the final agency decision on the 
complaint. The Secretary will reverse or revise an appeal decision by 
the OHA Director only under extraordinary circumstances. In the event 
the Secretary determines that a revision in the appeal decision is 
appropriate, the Secretary will direct the OHA Director to issue a 
revised decision which is the final agency action on the complaint.



Sec. 708.36  What remedies for retaliation may be ordered in initial and final agency decisions?

    (a) General remedies. If the initial or final agency decision 
determines that an act of retaliation has occurred, it may order:
    (1) Reinstatement;
    (2) Transfer preference;
    (3) Back pay;
    (4) Reimbursement of your reasonable costs and expenses, including 
attorney and expert-witness fees reasonably incurred to prepare for and 
participate in proceedings leading to the initial or final agency 
decision; or
    (5) Such other remedies as are deemed necessary to abate the 
violation and provide you with relief.
    (b) Interim relief. If an initial agency decision contains a 
determination that an act of retaliation occurred, the decision may 
order the contractor to provide you with appropriate interim relief 
(including reinstatement) pending the outcome of any request for review 
of the decision by the OHA Director. Such interim relief will not 
include payment of any money.



Sec. 708.37  Will an employee whose complaint is denied by a final agency decision be

reimbursed for costs and expenses incurred in pursuing the complaint?

    No. If your complaint is denied by a final agency decision, you may 
not be reimbursed for the costs and expenses you incurred in pursuing 
the complaint.



Sec. 708.38  How is a final agency decision implemented?

    (a) The Head of Field Element having jurisdiction over the contract 
under

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which you were employed when the alleged retaliation occurred, or EC 
Director, will implement a final agency decision by forwarding the 
decision and order to the contractor, or subcontractor, involved.
    (b) A contractor's failure or refusal to comply with a final agency 
decision and order under this regulation may result in a contracting 
officer's decision to disallow certain costs or terminate the contract 
for default. In the event of a contracting officer's decision to 
disallow costs or terminate a contract for default, the contractor may 
file a claim under the disputes procedures of the contract.



Sec. 708.39  Is a decision and order implemented under this regulation considered 

a claim by the government against a contractor or a decision by the 
          contracting officer under sections 6 and 7 of the Contract 
          Disputes Act?

    No. A final agency decision and order issued pursuant to this 
regulation is not considered a claim by the government against a 
contractor or ``a decision by the contracting officer'' under sections 6 
and 7 of the Contract Disputes Act (41 U.S.C. 605 and 606).



Sec. 708.40  Are contractors required to inform their employees about this program?

    Yes. Contractors who are covered by this part must inform their 
employees about these regulations by posting notices in conspicuous 
places at the work site. These notices must include the name and address 
of the DOE office where you can file a complaint under this part.

[64 FR 37397, July 12, 1999]



Sec. 708.41  Will DOE ever refer a complaint filed under this part to another agency for investigation and a decision?

    Notwithstanding the provisions of this part, the Secretary of Energy 
retains the right to request that a complaint filed under this part be 
accepted by another Federal agency for investigation and factual 
determinations.

[64 FR 37397, July 12, 1999]



Sec. 708.42  May the deadlines established by this part be extended by any DOE official?

    Yes. The Secretary of Energy (or the Secretary's designee) may 
approve the extension of any deadline established by this part, and the 
OHA Director may approve the extension of any deadline under Sec. 
708.22 through Sec. 708.34 of this subpart (relating to the 
investigation, hearing, and OHA appeal process).

[64 FR 37397, July 12, 1999]



Sec. 708.43  Does this rule impose an affirmative duty on DOE contractors not to retaliate?

    Yes. DOE contractors may not retaliate against any employee because 
the employee (or any person acting at the request of the employee) has 
taken an action listed in Sec. Sec. 708.5(a)-(c).

[65 FR 6319, Feb. 9, 2000; 65 FR 9201, Feb. 24, 2000]



PART 709_COUNTERINTELLIGENCE EVALUATION PROGRAM--Table of Contents



                      Subpart A_General Provisions

Sec.
709.1 Purpose.
709.2 Definitions.
709.3 Covered persons subject to a CI evaluation and polygraph.
709.4 Notification of a CI evaluation.
709.5 Waiver of polygraph examination requirements.

  Subpart B_CI Evaluation Protocols and Protection of National Security

709.10 Scope of a counterintelligence evaluation.
709.11 Topics within the scope of a polygraph examination.
709.12 Defining polygraph examination questions.
709.13 Implications of refusal to take a polygraph examination.
709.14 Consequences of a refusal to complete a CI evaluation including a 
          polygraph examination.
709.15 Processing counterintelligence evaluation results.
709.16 Application of Counterintelligence Evaluation Review Boards in 
          reaching conclusions regarding CI evaluations.
709.17 Final disposition of CI evaluation findings and recommendations.

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           Subpart C_Safeguarding Privacy and Employee Rights

709.21 Requirements for notification of a polygraph examination.
709.22 Right to counsel or other representation.
709.23 Obtaining consent to a polygraph examination.
709.24 Other information provided to the covered person prior to a 
          polygraph examination.
709.25 Limits on use of polygraph examination results that reflect 
          ``Significant Response'' or ``No Opinion''.
709.26 Protection of confidentiality of CI evaluation records to include 
          polygraph examination records and other pertinent 
          documentation.

         Subpart D_Polygraph Examination and Examiner Standards

709.31 DOE standards for polygraph examiners and polygraph examinations.
709.32 Training requirements for polygraph examiners.

    Authority: 42 U.S.C. 2011, et seq., 7101, et seq., 7144b, et seq., 
7383h-1; 50 U.S.C. 2401, et seq.

    Source: 71 FR 57392, Sept. 29, 2006, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 709.1  Purpose.

    This part:
    (a) Describes the categories of individuals who are subject for 
counterintelligence evaluation processing;
    (b) Provides guidelines for the counterintelligence evaluation 
process, including the use of counterintelligence-scope polygraph 
examinations, and for the use of event-specific polygraph examinations; 
and
    (c) Provides guidelines for protecting the rights of individual DOE 
employees and DOE contractor employees subject to this part.



Sec. 709.2  Definitions.

    For purposes of this part:
    Access authorization means an administrative determination under the 
Atomic Energy Act of 1954, Executive Order 12968, or 10 CFR part 710 
that an individual is eligible for access to classified matter or is 
eligible for access to, or control over, special nuclear material.
    Adverse personnel action means:
    (1) With regard to a DOE employee, the removal, suspension for more 
than 14 days, reduction in grade or pay, or a furlough of 30 days or 
less as described in 5 U.S.C. Chapter 75; or
    (2) With regard to a contractor employee, the discharge, discipline, 
or denial of employment or promotion, or any other discrimination in 
regard to hire or tenure of employment or any term or condition of 
employment.
    Contractor means any industrial, educational, commercial, or other 
entity, assistance recipient, or licensee, including an individual who 
has executed an agreement with DOE for the purpose of performing under a 
contract, license, or other agreement, and including any subcontractors 
of any tier.
    Counterintelligence or CI means information gathered and activities 
conducted to protect against espionage, other intelligence activities, 
sabotage, or assassinations conducted for or on behalf of foreign 
powers, organizations or persons, or international terrorist activities, 
but not including personnel, physical, document or communications 
security programs.
    Counterintelligence evaluation or CI evaluation means the process, 
possibly including a counterintelligence scope polygraph examination, 
used to make recommendations as to whether certain employees should have 
access to information or materials protected by this part.
    Counterintelligence program office means the Office of 
Counterintelligence in the Office of Intelligence and 
Counterintelligence (and any successor office to which that office's 
duties and authorities may be reassigned).
    Counterintelligence-scope or CI-scope polygraph examination means a 
polygraph examination using questions reasonably calculated to obtain 
counterintelligence information, including questions relating to 
espionage, sabotage, terrorism, unauthorized disclosure of classified 
information, deliberate damage to or malicious misuse of a United States 
Government information or defense system, and unauthorized contact with 
foreign nationals.

[[Page 344]]

    Covered person means an applicant for employment with DOE or a DOE 
contractor, a DOE employee, a DOE contractor employee, and an assignee 
or detailee to DOE from another agency.
    DOE means the Department of Energy including the National Nuclear 
Security Administration (NNSA).
    Foreign nexus means specific indications that a covered person is or 
may be engaged in clandestine or unreported relationships with foreign 
powers, organizations or persons, or international terrorists; contacts 
with foreign intelligence services; or other hostile activities directed 
against DOE facilities, property, personnel, programs or contractors by 
or on behalf of foreign powers, organizations or persons, or 
international terrorists.
    Human Reliability Program means the program under 10 CFR part 712.
    Intelligence means information relating to the capabilities, 
intentions, or activities of foreign governments or elements thereof, 
foreign organizations or foreign persons.
    Local commuting area means the geographic area that usually 
constitutes one area for employment purposes. It includes any population 
center (or two or more neighboring ones) and the surrounding localities 
in which people live and can reasonably be expected to travel back and 
forth daily to their usual employment.
    Materials means any ``nuclear explosive'' as defined in 10 CFR 
712.3, and any ``special nuclear material,'' hazardous ``source 
material,'' and hazardous ``byproduct material'' as those terms are 
defined by the Atomic Energy Act of 1954 (42 U.S.C. 2014).
    National security information means information that has been 
determined pursuant to Executive Order 12958, as amended by Executive 
Order 13292, or any predecessor order to require protection against 
unauthorized disclosure and is marked to indicate its classified status 
when in documentary form.
    NNSA means DOE's National Nuclear Security Administration.
    No opinion means an evaluation of a polygraph test by a polygraph 
examiner in which the polygraph examiner cannot render an opinion.
    Polygraph examination means all activities that take place between a 
Polygraph Examiner and an examinee (person taking the test) during a 
specific series of interactions, including the pretest interview, the 
use of the polygraph instrument to collect physiological data from the 
examinee while presenting a series of tests, the test data analysis 
phase, and the post-test phase.
    Polygraph examination records means all records of the polygraph 
examination, including the polygraph report, audio-video recording, and 
the polygraph consent form.
    Polygraph instrument means a diagnostic instrument used during a 
polygraph examination, which is capable of monitoring, recording and/or 
measuring at a minimum, respiratory, electrodermal, and cardiovascular 
activity as a response to verbal or visual stimuli.
    Polygraph report means a document that may contain identifying data 
of the examinee, a synopsis of the basis for which the examination was 
conducted, the relevant questions utilized, and the examiner's 
conclusion.
    Polygraph test means that portion of the polygraph examination 
during which the polygraph instrument collects physiological data based 
upon the individual's responses to questions from the examiner.
    Program Manager means a DOE official designated by the Secretary or 
the Head of a DOE Element to make an access determination under this 
part.
    Random means a statistical process whereby eligible employees have 
an equal probability of selection for a CI evaluation each time the 
selection process occurs.
    Regular and routine means access by individuals without further 
permission more than two times per calendar quarter.
    Relevant questions are those questions used during the polygraph 
examination that pertain directly to the issues for which the 
examination is being conducted.
    Restricted data means all data concerning the design, manufacture, 
or utilization of atomic weapons; the production of special nuclear 
material; or the use of special nuclear material in the production of 
energy, but does not include data declassified or removed

[[Page 345]]

from the restricted data category pursuant to section 142 of the Atomic 
Energy Act of 1954.
    Secret means the security classification that is applied to DOE-
generated information or material the unauthorized disclosure of which 
reasonably could be expected to cause serious damage to the national 
security.
    Secretary means the Secretary of Energy or the Secretary's designee.
    Significant response means an opinion that the analysis of the 
polygraph charts reveals consistent, significant, timely physiological 
responses to the relevant questions.
    Special Access Program or SAP means a program established under 
Executive Order 12958 for a specific class of classified information 
that imposes safeguarding and access requirements that exceed those 
normally required for information at the same classification level.
    Suspend means temporarily to withdraw an employee's access to 
information or materials protected under Sec. 709.3 of this part.
    System Administrator means any individual who has privileged system, 
data, or software access that permits that individual to exceed the 
authorization of a normal system user and thereby override, alter, or 
negate integrity verification and accountability procedures or other 
automated and/or technical safeguards provided by the systems security 
assets for normal users.
    Top Secret means the security classification that is applied to DOE-
generated information or material the unauthorized disclosure of which 
reasonably could be expected to cause exceptionally grave damage to the 
national security.
    Unresolved issues means an opinion by a CI evaluator that the 
analysis of the information developed during a CI evaluation remains 
inconclusive and needs further clarification before a CI access 
recommendation can be made.



Sec. 709.3  Covered persons subject to a CI evaluation and polygraph.

    (a) Mandatory CI evaluation. Except as provided in Sec. 709.5 of 
this part with regard to waivers, a CI evaluation, which may include a 
CI-scope polygraph examination, is required for any covered person in 
any category under paragraph (b) of this section who will have or has 
access to classified information or materials protected under this 
paragraph. Such an evaluation is required for covered persons who are 
incumbent employees at least once every five years. DOE, in its sole 
discretion, may require a CI-scope polygraph examination:
    (1) If the CI evaluation reveals foreign nexus issues;
    (2) If a covered person who is an incumbent employee is to be 
assigned within DOE to activities involving another agency and a 
polygraph examination is required as a condition of access to the 
activities by the other agency; or
    (3) If a covered person who is an incumbent employee is proposed to 
be assigned or detailed to another agency and the receiving agency 
requests DOE to administer a polygraph examination as a condition of the 
assignment or detail.
    (b) Paragraph (a) of this section applies to covered persons:
    (1) In an intelligence or counterintelligence program office (or 
with programmatic reporting responsibility to an intelligence or 
counterintelligence program office) because of access to classified 
intelligence information, or sources, or methods;
    (2) With access to Sensitive Compartmented Information;
    (3) With access to information that is protected within a non-
intelligence Special Access Program (SAP) designated by the Secretary;
    (4) With regular and routine access to Top Secret Restricted Data;
    (5) With regular and routine access to Top Secret National Security 
Information; and
    (6) Designated, with approval of the Secretary, on the basis of a 
risk assessment consistent with paragraphs (e) and (f) of this section, 
by a Program Manager for the following DOE offices and programs (and any 
successors to those offices and programs): The Office of the Secretary; 
the Human Reliability Program; the National Nuclear Security 
Administration (including the Office of Emergency Operations); and the 
Office of Health, Safety and Security.

[[Page 346]]

    (c) Random CI evaluation. Except as provided in Sec. 709.5 of this 
part with regard to waivers, DOE may require a CI evaluation, including 
a CI-scope polygraph examination, of covered persons who are incumbent 
employees selected on a random basis from the following:
    (1) All covered persons identified in Sec. 709.3(b);
    (2) All employees in the Office of Independent Oversight (or any 
successor office) within the Office of Health, Safety and Security 
because of access to classified information regarding the inspection and 
assessment of safeguards and security functions, including cyber 
security, of the DOE;
    (3) All employees in other elements of the Office of Health, Safety 
and Security (or any successor office) because of their access to 
classified information;
    (4) All employees in the NNSA Office of Emergency Operations (OEO or 
any successor office) including DOE field offices or contractors who 
support OEO because of their access to classified information;
    (5) All employees with regular and routine access to classified 
information concerning: The design and function of nuclear weapons use 
control systems, features, and their components (currently designated as 
Sigma 15); vulnerability of nuclear weapons to deliberate unauthorized 
nuclear detonation (currently designated as Sigma 14); and improvised 
nuclear device concepts or designs; and
    (6) Any system administrator with access to a system containing 
classified information, as identified by the DOE or NNSA Chief 
Information Officer.
    (d) Specific incident polygraph examinations. In response to 
specific facts or circumstances with potential counterintelligence 
implications with a defined foreign nexus, the Director of the Office of 
Intelligence and Counterintelligence (or, in the case of a covered 
person in NNSA, the Administrator of NNSA, after consideration of the 
recommendation of the Director, Office of Intelligence and 
Counterintelligence) may require a covered person with access to DOE 
classified information or materials to consent to and take an event-
specific polygraph examination. Except as otherwise determined by the 
Secretary, on the recommendation of the appropriate Program Manager, if 
a covered person with access to DOE classified information or materials 
refuses to consent to or take a polygraph examination under this 
paragraph, then the Director of the Office of Intelligence and 
Counterintelligence (or, in the case of a covered person in NNSA, the 
Administrator of NNSA, after consideration of the recommendation of the 
Director, Office of Intelligence and Counterintelligence) shall direct 
the denial of access (if any) to classified information and materials 
protected under paragraphs (b) and (c) of this section, and shall refer 
the matter to the Office of Health, Safety and Security for a review of 
access authorization eligibility under 10 CFR part 710. In addition, in 
the circumstances described in this paragraph, any covered person with 
access to DOE classified information or material may request a polygraph 
examination.
    (e) Risk assessment. For the purpose of deciding whether to 
designate or remove employees for mandatory CI evaluations under 
paragraph (b)(6) of this section, Program Managers may consider:
    (1) Access on a non-regular and non-routine basis to Top Secret 
Restricted Data or Top Secret National Security Information or the 
nature and extent of access to other classified information;
    (2) Unescorted or unrestricted access to significant quantities or 
forms of special nuclear materials; and
    (3) Any other factors concerning the employee's responsibilities 
that are relevant to determining risk of unauthorized disclosure of 
classified information or materials.
    (f) Based on the risk assessments conducted under paragraph (e) of 
this section and in consultation with the Director of the Office of 
Intelligence and Counterintelligence, the Program Manager shall provide 
recommendations as to positions to be designated or removed under 
paragraph (b)(6) of this section for approval by the Secretary. 
Recommendations shall include a summary of the basis for designation or 
removal of the positions and of the views of the Director of the Office 
of

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Intelligence and Counterintelligence as to the recommendations.
    (g) Not less than once every calendar year quarter, the responsible 
Program Manager must provide a list of all incumbent employees who are 
covered persons under paragraphs (b) and (c) of this section to the 
Director of the Office of Intelligence and Counterintelligence.



Sec. 709.4  Notification of a CI evaluation.

    (a) If a polygraph examination is scheduled, DOE must notify the 
covered person, in accordance with Sec. 709.21 of this part.
    (b) Any job announcement or posting with respect to any position 
with access to classified information or materials protected under Sec. 
709.3(b) and (c) of this part should indicate that DOE may condition the 
selection of an individual for the position (709.3(b)) or retention in 
that position (709.3(b) and (c)) upon his or her successful completion 
of a CI evaluation, including a CI-scope polygraph examination.
    (c) Advance notice will be provided to the affected Program Manager 
and laboratory/site/facility director of the covered persons who are 
included in any random examinations that are administered in accordance 
with provisions at Sec. 709.3(c).



Sec. 709.5  Waiver of polygraph examination requirements.

    (a) General. Upon a waiver request submitted under paragraph (b) of 
this section, DOE may waive the CI-scope polygraph examination under 
Sec. 709.3 of this part for:
    (1) Any covered person based upon certification from another Federal 
agency that the covered person has successfully completed a full scope 
or CI-scope polygraph examination administered within the previous five 
years;
    (2) Any covered person who is being treated for a medical or 
psychological condition that, based upon consultation with the covered 
person and appropriate medical personnel, would preclude the covered 
person from being tested; or
    (3) Any covered person in the interest of national security.
    (b) Submission of Waiver Requests. A covered person may submit a 
request for waiver under this section, and the request shall assert the 
basis for the waiver sought and shall be submitted, in writing, to the 
Director, Office of Intelligence and Counterintelligence, at the 
following address: U.S. Department of Energy, Attn: Director, Office of 
Intelligence and Counterintelligence, 1000 Independence Avenue, SW., 
Washington, DC 20585.
    (c) Disposition of Waiver Requests. The Director, Office of 
Intelligence and Counterintelligence, shall issue a written decision on 
a request for waiver prior to the administration of a polygraph 
examination. The Director shall obtain the concurrence of the Secretary 
in his or her decision on a request for waiver under Sec. 709.5(a)(3) 
and shall obtain the concurrence of the Administrator of NNSA in a 
decision on a waiver request from an NNSA covered person under Sec. 
709.5(a)(1) and Sec. 709.5(a)(2). Notification of approval of a waiver 
request will contain information regarding the duration of the waiver 
and any other relevant information. Notification of the denial of a 
waiver request will state the basis for the denial and state that the 
covered person may request reconsideration of the denial by the 
Secretary under Sec. 709.5(d).
    (d) Reconsideration Rights. If a waiver is denied, the covered 
person may file with the Secretary a request for reconsideration of the 
denial within 30 days of receipt of the decision, and the Secretary's 
decision will be issued prior to the administration of a polygraph 
examination.



  Subpart B_CI Evaluation Protocols and Protection of National Security



Sec. 709.10  Scope of a counterintelligence evaluation.

    A counterintelligence evaluation consists of a counterintelligence-
based review of the covered person's personnel security file and review 
of other relevant information available to DOE in accordance with 
applicable guidelines and authorities. As provided in Sec. 709.3(b), 
DOE also may require a CI-

[[Page 348]]

scope polygraph examination. As provided for in Sec. 709.3(c), a CI 
evaluation, if conducted on a random basis, will include a CI-scope 
polygraph examination. As set forth in Sec. 709.15(b) and (c) of this 
part, a counterintelligence evaluation may also include other pertinent 
measures to address and resolve counterintelligence issues in accordance 
with Executive Order 12333, the DOE ``Procedures for Intelligence 
Activities,'' and other relevant laws, guidelines and authorities, as 
applicable.



Sec. 709.11  Topics within the scope of a polygraph examination.

    (a) DOE may ask questions in a specific incident polygraph 
examination that are appropriate for a CI-scope examination or that are 
relevant to the counterintelligence concerns with a defined foreign 
nexus raised by the specific incident.
    (b) A CI-scope polygraph examination is limited to topics concerning 
the covered person's involvement in espionage, sabotage, terrorism, 
unauthorized disclosure of classified information, unauthorized foreign 
contacts, and deliberate damage to or malicious misuse of a U.S. 
government information or defense system.
    (c) DOE may not ask questions that:
    (1) Probe a covered person's thoughts or beliefs;
    (2) Concern conduct that has no CI implication with a defined 
foreign nexus; or
    (3) Concern conduct that has no direct relevance to a CI evaluation.



Sec. 709.12  Defining polygraph examination questions.

    The examiner determines the exact wording of the polygraph questions 
based on the examiner's pretest interview of the covered person, the 
covered person's understanding of the questions, established test 
question procedures from the Department of Defense Polygraph Institute, 
and other input from the covered person.



Sec. 709.13  Implications of refusal to take a polygraph examination.

    (a) Subject to Sec. 709.14 of this part, a covered person may 
refuse to take a polygraph examination pursuant to Sec. 709.3 of this 
part, and a covered person being examined may terminate the examination 
at any time.
    (b) If a covered person terminates a polygraph examination prior to 
the completion of the examination, DOE may treat that termination as a 
refusal to complete a CI evaluation under Sec. 709.14 of this part.



Sec. 709.14  Consequences of a refusal to complete a CI evaluation including a polygraph examination.

    (a) If a covered person is an applicant for employment or assignment 
or a potential detailee or assignee with regard to an identified 
position and the covered person refuses to complete a CI evaluation 
including a polygraph examination required by this part as an initial 
condition of access, DOE and its contractors must refuse to employ, 
assign, or detail that covered person with regard to the identified 
position.
    (b) If a covered person is an incumbent employee in an identified 
position subject to a CI evaluation including a polygraph examination 
under Sec. 709.3(b), (c), or (d), and the covered person refuses to 
complete a CI evaluation, DOE and its contractors must deny that covered 
person access to classified information and materials protected under 
Sec. 709.3(b) and (c) and may take other actions consistent with the 
denial of access, including administrative review of access 
authorization under 10 CFR part 710. If the covered person is a DOE 
employee, DOE may reassign or realign the DOE employee's duties, or take 
other action, consistent with that denial of access and applicable 
personnel regulations.
    (c) If a DOE employee refuses to take a CI polygraph examination, 
DOE may not record the fact of that refusal in the employee's personnel 
file.



Sec. 709.15  Processing counterintelligence evaluation results.

    (a) If the reviews under Sec. 709.10 or a polygraph examination 
present unresolved foreign nexus issues that raise significant questions 
about the covered person's access to classified information or materials 
protected under Sec. 709.3 of this part that justified the 
counterintelligence evaluation, DOE may undertake a more comprehensive

[[Page 349]]

CI evaluation that, in appropriate circumstances, may include evaluation 
of financial, credit, travel, and other relevant information to resolve 
any identified issues. Participation by Office of Intelligence and 
Counterintelligence personnel in any such evaluation is subject to 
Executive Order 12333, the DOE ``Procedures for Intelligence 
Activities,'' and other relevant laws, guidelines, and authorities as 
may be applicable with respect to such matters.
    (b) The Office of Intelligence and Counterintelligence, in 
coordination with NNSA with regard to issues concerning a NNSA covered 
person, may conduct an in-depth interview with the covered person, may 
request relevant information from the covered person, and may arrange 
for the covered person to undergo an additional polygraph examination.
    (c) Whenever information is developed by the Office of Health, 
Safety and Security indicating counterintelligence issues, the Director 
of that Office shall notify the Director, Office of Intelligence and 
Counterintelligence.
    (d) If, in carrying out a comprehensive CI evaluation of a covered 
person under this section, there are significant unresolved issues, not 
exclusively related to polygraph examination results, indicating 
counterintelligence issues, then the Director, Office of Intelligence 
and Counterintelligence shall notify the DOE national laboratory 
director (if applicable), plant manager (if applicable) and program 
manager(s) for whom the individual works that the covered person is 
undergoing a CI evaluation pursuant to this part and that the evaluation 
is not yet complete.
    (e) Utilizing the DOE security criteria in 10 CFR part 710, the 
Director, Office of Intelligence and Counterintelligence, makes a 
determination whether a covered person completing a CI evaluation has 
made disclosures that warrant referral, as appropriate, to the Office of 
Health, Safety and Security or the Manager of the applicable DOE/NNSA 
Site, Operations Office or Service Center.



Sec. 709.16  Application of Counterintelligence Evaluation Review Boards in reaching conclusions regarding CI evaluations.

    (a) General. If the results of a counterintelligence evaluation are 
not dispositive, the Director of the Office of Intelligence and 
Counterintelligence may convene a Counterintelligence Evaluation Review 
Board to obtain the individual views of each member as assistance in 
resolving counterintelligence issues identified during a 
counterintelligence evaluation.
    (b) Composition. A Counterintelligence Evaluation Review Board is 
chaired by the Director of the Office of Intelligence and 
Counterintelligence (or his/her designee) and includes representation 
from the appropriate line Program Managers, lab/site/facility management 
(if a contractor employee is involved), NNSA, if the unresolved issues 
involve an NNSA covered person, the DOE Office of Health, Safety and 
Security and security directors for the DOE or NNSA site or operations 
office.
    (c) Process. When making a final recommendation under Sec. 709.17 
of this part, to a Program Manager, the Director of Intelligence and 
Counterintelligence shall report on the Counterintelligence Evaluation 
Review Board's views, including any consensus recommendation, or if the 
members are divided, a summary of majority and dissenting views.



Sec. 709.17  Final disposition of CI evaluation findings and recommendations.

    (a) Following completion of a CI evaluation, the Director of the 
Office of Intelligence and Counterintelligence must recommend, in 
writing, to the appropriate Program Manager that the covered person's 
access be approved or retained, or denied or revoked.
    (b) If the Program Manager agrees with the recommendation, the 
Program Manager notifies the covered person that the covered person's 
access has been approved or retained, or denied or revoked.
    (c) If the Program Manager disagrees with the recommendation of the 
Director, Office of Intelligence and Counterintelligence, the matter is 
referred to the Secretary for a final decision.

[[Page 350]]

    (d) If the Program Manager denies or revokes a DOE employee's 
access, DOE may reassign the employee or realign the employee's duties 
within the local commuting area or take other actions consistent with 
the denial of access.
    (e) If the Program Manager revokes the access of a covered person 
assigned or detailed to DOE, DOE may remove the assignee or detailee 
from access to the information that justified the CI evaluation and 
return the assignee or detailee to the agency of origin.
    (f) Covered persons whose access is denied or revoked may request 
reconsideration by the head of the relevant DOE element.
    (g) For cases involving a question of loyalty to the United States, 
the Director of the Office of Intelligence and Counterintelligence may 
refer the matter to the FBI as required by section 145d of the Atomic 
Energy Act of 1954. For cases indicating that classified information is 
being, or may have been, disclosed in an unauthorized manner to a 
foreign power or an agent of a foreign power, DOE is required by 50 
U.S.C. 402a(e) to refer the matter to the Federal Bureau of 
Investigation.



           Subpart C_Safeguarding Privacy and Employee Rights



Sec. 709.21  Requirements for notification of a polygraph examination.

    When a polygraph examination is scheduled, the DOE must notify the 
covered person, in writing, of the date, time, and place of the 
polygraph examination, the provisions for a medical waiver, and the 
covered person's right to obtain and consult with legal counsel or to 
secure another representative prior to the examination. DOE must provide 
a copy of this part to the covered person. The covered person must 
receive the notification at least ten days, excluding weekend days and 
holidays, before the time of the examination except when good cause is 
shown or when the covered person waives the advance notice provision.



Sec. 709.22  Right to counsel or other representation.

    (a) At the covered person's own expense, a covered person has the 
right to obtain and consult with legal counsel or another 
representative. However, the counsel or representative may not be 
present during the polygraph examination. Except for interpreters and 
signers, no one other than the covered person and the examiner may be 
present in the examination room during the polygraph examination.
    (b) A covered person has the right to consult with legal counsel or 
another representative at any time during an interview conducted in 
accordance with Sec. 709.15 of this part.



Sec. 709.23  Obtaining consent to a polygraph examination.

    DOE may not administer a polygraph examination unless DOE:
    (a) Notifies the covered person of the polygraph examination in 
writing in accordance with Sec. 709.21 of this part; and
    (b) Obtains written consent from the covered person prior to the 
polygraph examination.



Sec. 709.24  Other information provided to a covered person prior to a polygraph examination.

    Before administering the polygraph examination, the examiner must:
    (a) Inform the covered person that audio and video recording of each 
polygraph examination session will be made, and that other observation 
devices, such as two-way mirrors and observation rooms, also may be 
employed;
    (b) Explain to the covered person the characteristics and nature of 
the polygraph instrument and examination;
    (c) Explain to the covered person the physical operation of the 
instrument and the procedures to be followed during the examination;
    (d) Review with the covered person the relevant questions to be 
asked during the examination;
    (e) Advise the covered person of the covered person right against 
self-incrimination; and
    (f) Provide the covered person with a pre-addressed envelope, which 
may be used to submit a quality assurance questionnaire, comments or 
complaints concerning the examination.

[[Page 351]]



Sec. 709.25  Limits on use of polygraph examination results that reflect ``Significant Response'' or ``No Opinion''.

    DOE or its contractors may not:
    (a) Take an adverse personnel action against a covered person or 
make an adverse access recommendation solely on the basis of a polygraph 
examination result of ``significant response'' or ``no opinion''; or
    (b) Use a polygraph examination that reflects ``significant 
response'' or ``no opinion'' as a substitute for any other required 
investigation.



Sec. 709.26  Protection of confidentiality of CI evaluation records to

include polygraph examination records and other pertinent documentation.

    (a) DOE owns all CI evaluation records, including polygraph 
examination records and reports and other evaluation documentation.
    (b) DOE maintains all CI evaluation records, including polygraph 
examination records and other pertinent documentation acquired in 
conjunction with a counterintelligence evaluation, in a system of 
records established under the Privacy Act of 1974 (5 U.S.C. 552a).
    (c) DOE must afford the full privacy protection provided by law to 
information regarding a covered person's refusal to participate in a CI 
evaluation to include a polygraph examination and the completion of 
other pertinent documentation.
    (d) With the exception of the polygraph report, all other polygraph 
examination records are destroyed ninety days after the CI evaluation is 
completed, provided that a favorable recommendation has been made to 
grant or continue the access to the position. If a recommendation is 
made to deny or revoke access to the information or involvement in the 
activities that justified conducting the CI evaluation, then all of the 
polygraph examination records are retained until the final resolution of 
any request for reconsideration by the covered person or the completion 
of any ongoing investigation.



         Subpart D_Polygraph Examination and Examiner Standards



Sec. 709.31  DOE standards for polygraph examiners and polygraph examinations.

    (a) DOE adheres to the procedures and standards established by the 
Department of Defense Polygraph Institute (DODPI). DOE administers only 
DODPI approved testing formats.
    (b) A polygraph examiner may administer no more than five polygraph 
examinations in any twenty-four hour period. This does not include those 
instances in which a covered person voluntarily terminates an 
examination prior to the actual testing phase.
    (c) The polygraph examiner must be certified to conduct polygraph 
examinations under this part by the DOE Psychophysiological Detection of 
Deception/Polygraph Program Quality Control Official.
    (d) To be certified under paragraph (c) of this section, an examiner 
must have the following minimum qualifications:
    (1) The examiner must be an experienced CI or criminal investigator 
with extensive additional training in using computerized instrumentation 
in Psychophysiological Detection of Deception and in psychology, 
physiology, interviewing, and interrogation.
    (2) The examiner must have a favorably adjudicated single-scope 
background investigation, complete a CI-scope polygraph examination, and 
must hold a ``Q'' access authorization, which is necessary for access to 
Secret Restricted Data and Top Secret National Security Information. In 
addition, he or she must have been granted SCI access approval.
    (3) The examiner must receive basic Forensic Psychophysiological 
Detection of Deception training from the DODPI.



Sec. 709.32  Training requirements for polygraph examiners.

    (a) Examiners must complete an initial training course of thirteen 
weeks, or longer, in conformance with the procedures and standards 
established by DODPI.
    (b) Examiners must undergo annual continuing education for a minimum 
of

[[Page 352]]

forty hours training within the discipline of Forensic 
Psychophysiological Detection of Deception.
    (c) The following organizations provide acceptable curricula to meet 
the training requirement of paragraph (b) of this section:
    (1) American Polygraph Association,
    (2) American Association of Police Polygraphists, and
    (3) Department of Defense Polygraph Institute.



PART 710_CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO CLASSIFIED MATTER OR SPECIAL NUCLEAR MATERIAL--Table of Contents



 Subpart A_General Criteria and Procedures for Determining Eligibility 
       for Access to Classified Matter or Special Nuclear Material

                           General Provisions

Sec.
710.1 Purpose.
710.2 Scope.
710.3 Reference.
710.4 Policy.
710.5 Definitions.

   Criteria and Procedures for Determining Eligibility for Access to 
              Classified Matter or Special Nuclear Material

710.6 Cooperation by the individual.
710.7 Application of the criteria.
710.8 Criteria.
710.9 Action on derogatory information.
710.10 Suspension of access authorization.

                          Administrative Review

710.20 Purpose of administrative review.
710.21 Notice to the individual.
710.22 Initial decision process.
710.23 Extensions of time by the Manager.
710.24 Appointment of DOE Counsel.
710.25 Appointment of Hearing Officer; prehearing conference; 
          commencement of hearings.
710.26 Conduct of hearings.
710.27 Hearing Officer's decision.
710.28 Action on the Hearing Officer's decision.
710.29 Final appeal process.
710.30 New evidence.
710.31 Action by the Secretary.
710.32 Reconsideration of access eligibility.

                              Miscellaneous

710.33 Terminations.
710.34 Attorney representation.
710.35 Time frames.
710.36 Acting officials.

Appendix A to Subpart A of Part 710--Selected Provisions of the Atomic 
          Energy Act of 1954, as amended, Sec. 141 (42 U.S.C. 2161), 
          Sec. 145 (42 U.S.C. 2165), Sec. 161 (42 U.S.C. 2201)
Appendix B to Subpart A of Part 710--Adjudicative Guidelines Approved by 
          the President in Accordance With the Provisions of Executive 
          Order 12968

Supart B [Reserved]

    Authority: 42 U.S.C. 2165, 2201, 5815, 7101, et seq., 7383h-1; 50 
U.S.C. 2401, et seq.; E.O. 10450, 3 CFR 1949-1953 comp., p. 936, as 
amended; E.O. 10865, 3 CFR 1959-1963 comp., p. 398, as amended, 3 CFR 
Chap. IV; E.O. 12958, as amended by E.O.13292, 68 FR 15315, 3 CFR 2004 
Comp., p. 196; E.O. 12968, 3 CFR 1995 Comp., p. 391.



 Subpart A_General Criteria and Procedures for Determining Eligibility 
       for Access to Classified Matter or Special Nuclear Material

    Source: 59 FR 35185, July 8, 1994, unless otherwise noted.

                           General Provisions



Sec. 710.1  Purpose.

    (a) This subpart establishes the criteria, procedures, and methods 
for resolving questions concerning the eligibility of individuals who 
are employed by, or applicants for employment with, Department of Energy 
(DOE) contractors, agents, and access permittees, individuals who are 
DOE employees or applicants for DOE employment, and other persons 
designated by the Secretary of Energy, for access to Restricted Data or 
special nuclear material, pursuant to the Atomic Energy Act of 1954, as 
amended, or for access to national security information.
    (b) This subpart is published to implement: Executive Order 12968, 
60 FR 40245 (August 7, 1995); Executive Order 12958, 60 FR 19825 (April 
20, 1995); Executive Order 10865, 25 FR 1583 (February 24, 1960), as 
amended; and Executive Order 10450, 18 FR 2489 (April 27, 1954), as 
amended. This subpart also provides for public information: selected 
provisions of the Atomic Energy Act of 1954,

[[Page 353]]

as amended, set forth in appendix A to this subpart; and the 1997 
Adjudicative Guidelines approved by the President and set forth in 
appendix B to this subpart.

[59 FR 35185, July 8, 1994, as amended at 66 FR 47062, Sept. 11, 2001]



Sec. 710.2  Scope.

    The criteria and procedures outlined in this subpart shall be used 
in those cases in which there are questions of eligibility for DOE 
access authorization involving:
    (a) Employees (including consultants) of, and applicants for 
employment with, contractors and agents of the DOE;
    (b) Access permittees of the DOE and their employees (including 
consultants) and applicants for employment;
    (c) Employees (including consultants) of, and applicants for 
employment with, the DOE; and
    (d) Other persons designated by the Secretary of Energy.



Sec. 710.3  Reference.

    The pertinent sections of the Atomic Energy Act of 1954, as amended, 
relative to this regulation are set forth in Appendix A to this subpart.



Sec. 710.4  Policy.

    (a) It is the policy of DOE to provide for the security of its 
programs in a manner consistent with traditional American concepts of 
justice and fairness. To this end, the Secretary has established 
criteria for determining eligibility for access authorization and 
procedures that will afford those individuals described in Sec. 710.2 
the opportunity for administrative review of questions concerning their 
eligibility for access authorization.
    (b) It is also the policy of DOE that none of the procedures 
established by DOE for determining eligibility for access authorization 
shall be used for an improper purpose, including any attempt to coerce, 
restrain, threaten, intimidate, or retaliate against individuals for 
exercising their rights under any statute, regulation or DOE directive. 
Any DOE officer or employee violating, or causing the violation of this 
policy, shall be subject to appropriate disciplinary action.
    (c) If the individual is currently awaiting a hearing or trial, or 
has been convicted of a crime punishable by imprisonment of six (6) 
months or longer, or is awaiting or serving a form of preprosecution 
probation, suspended or deferred sentencing, court ordered probation, or 
parole in conjunction with an arrest or criminal charges initiated 
against the individual for a crime that is punishable by imprisonment of 
six (6) months or longer, DOE may suspend processing an application for 
access authorization until such time as the hearing, trial, criminal 
prosecution, suspended sentencing, deferred sentencing, probation, or 
parole has been completed.
    (d) DOE may suspend processing an application for access 
authorization if sufficient information about the individual's 
background cannot be obtained to meet the investigative scope and extent 
requirements for the access authorization requested.
    (e) DOE may suspend processing an application for access 
authorization until such time as a question regarding an individual's 
national allegiance is resolved. For example, if an individual is 
exercising rights of citizenship conferred by a country other than the 
United States, DOE will be concerned with whether granting access 
authorization to that individual constitutes an unacceptable national 
security risk.
    (f) DOE may suspend processing an application for access 
authorization whenever an individual fails to fulfill the 
responsibilities described in Sec. 710.6.
    (g) If an individual believes that the provisions of paragraph (c), 
(d), or (e) of this section have been inappropriately applied, a written 
appeal may be filed with the Director, Office of Personnel Security, DOE 
Headquarters, within 30 calendar days of the date the individual was 
notified of the action. The Director shall act on the written appeal as 
described in section 710.6(c).

[59 FR 35185, July 8, 1994, as amended at 66 FR 47062, Sept. 11, 2001; 
71 FR 68730, Nov. 28, 2006]



Sec. 710.5  Definitions.

    (a) As used in this subpart:
    Access authorization means an administrative determination that an 
individual is eligible for access to classified

[[Page 354]]

matter or is eligible for access to, or control over, special nuclear 
material.
    Classified Matter means the material of thought or expression that 
is classified pursuant to statute or Executive Order.
    DOE Counsel means a DOE attorney assigned to represent DOE in 
proceedings under this subpart. DOE Counsel shall be a U.S. citizen and 
shall have been subject to a favorably adjudicated background 
investigation.
    Hearing Officer means a DOE attorney or senior management official 
appointed by the Director, Office of Hearings and Appeals, pursuant to 
Sec. 710.25. A Hearing Officer shall be a U.S. citizen and shall have 
been subject to a favorably adjudicated background investigation.
    Local Director of Security means the individual with primary 
responsibility for safeguards and security at the Chicago, Idaho, Oak 
Ridge, Richland, and Savannah River Operations Offices and the 
Pittsburgh and Schenectady Naval Reactors Offices; the Manager, National 
Nuclear Security Administration (NNSA) Service Center; for Washington, 
DC area cases, the Director, Office of Security Operations; and any 
person designated in writing to serve in one of the aforementioned 
positions in an acting capacity.
    Manager means the Manager of a DOE Operations Office (Albuquerque, 
Chicago, Idaho, Nevada, Oak Ridge, Oakland, Richland, or Savannah 
River), the Manager of the Pittsburgh Naval Reactors Office, the Manager 
of the Schenectady Naval Reactors Office, and, for Washington, DC area 
cases, the Director, Office of Personnel Security.
    National Security Information means any information that has been 
determined, pursuant to Executive Order 12958 or any predecessor Order, 
to require protection against unauthorized disclosure and that is so 
designated.
    Secretary means the Secretary of Energy, as provided by section 201 
of the Department of Energy Organization Act.
    Special nuclear material means plutonium, uranium enriched in the 
isotope 233, or in the isotope 235, and any other material which, 
pursuant to the provisions of Section 51 of the Atomic Energy Act of 
1954, as amended, has been determined to be special nuclear material, 
but does not include source material; or any material artificially 
enriched by any of the foregoing, not including source material.
    (b) Throughout this subpart the use of the male gender shall include 
the female gender and vice versa.

[59 FR 35185, July 8, 1994, as amended at 66 FR 47063, Sept. 11, 2001; 
71 FR 68730, Nov. 28, 2006]

   Criteria and Procedures for Determining Eligibility for Access to 
              Classified Matter or Special Nuclear Material



Sec. 710.6  Cooperation by the individual.

    (a)(1) It is the responsibility of the individual to cooperate by 
providing full, frank, and truthful answers to DOE's relevant and 
material questions, and when requested, to furnish or authorize others 
to furnish information that the DOE deems pertinent to the individual's 
eligibility for DOE access authorization. This obligation to cooperate 
applies when completing security forms, during the course of a personnel 
security background investigation or reinvestigation, and at any stage 
of DOE's processing of the individual's access authorization, including 
but not limited to, personnel security interviews, DOE-sponsored mental 
evaluations, and other authorized DOE investigative activities under 
this subpart. The individual may elect not to cooperate; however, such 
refusal may prevent DOE from reaching an affirmative finding required 
for granting or continuing access authorization. In this event, any 
access authorization then in effect may be terminated, or, for 
applicants, further processing may be suspended.
    (2) It is the responsibility of an individual subject to Sec. 
709.3(d) to consent to and take an event-specific polygraph examination. 
A refusal to consent to or take such an examination may prevent DOE from 
reaching an affirmative finding required for continuing access 
authorization. In this event, DOE may suspend or terminate any access 
authorization.
    (b) If the individual believes that the provisions of paragraph (a) 
of this section have been inappropriately applied

[[Page 355]]

in his case, he may file a written appeal of the action with the 
Director, Office of Personnel Security, DOE Headquarters, within 30 
calendar days of the date he was notified of the action.
    (c) Upon receipt of the written appeal, the Director, Office of 
Personnel Security, shall conduct an inquiry as to the circumstances 
involved in the action and shall, within 30 calendar days of receipt of 
the written appeal, notify the individual, in writing, as to whether the 
action to terminate or suspend processing of access authorization was 
appropriate. If the Director determines that the action was 
inappropriate, he shall direct that the individual continue to be 
processed for access authorization, or that access authorization for the 
individual be reinstated.

[59 FR 35185, July 8, 1994, as amended at 71 FR 57397, Sept. 29, 2006; 
71 FR 68730, Nov. 28, 2006]



Sec. 710.7  Application of the criteria.

    (a) The decision as to access authorization is a comprehensive, 
common-sense judgment, made after consideration of all relevant 
information, favorable and unfavorable, as to whether the granting or 
continuation of access authorization will not endanger the common 
defense and security and is clearly consistent with the national 
interest. Any doubt as to an individual's access authorization 
eligibility shall be resolved in favor of the national security. Absent 
any derogatory information, a favorable determination usually will be 
made as to access authorization eligibility.
    (b) To assist in making these determinations, on the basis of all 
the information in a particular case, there are set forth in this 
subpart criteria consisting of a number of specific types of derogatory 
information. These criteria are not exhaustive but contain the principal 
types of derogatory information which create a question as to the 
individual's eligibility for access authorization. DOE is not limited to 
these criteria or precluded from exercising its judgment that 
information or facts in a case under its cognizance are derogatory 
although at variance with, or outside the scope of, the stated 
categories. These criteria are subject to continuing review and may be 
revised from time to time as experience and circumstances may make 
desirable.
    (c) In resolving a question concerning an individual's eligibility 
for access authorization, all DOE officials involved in the decision-
making process shall consider: the nature, extent, and seriousness of 
the conduct; the circumstances surrounding the conduct, to include 
knowledgeable participation; the frequency and recency of the conduct; 
the age and maturity of the individual at the time of the conduct; the 
voluntariness of participation; the absence or presence of 
rehabilitation or reformation and other pertinent behavioral changes; 
the motivation for the conduct; the potential for pressure, coercion, 
exploitation, or duress; the likelihood of continuation or recurrence; 
and other relevant and material factors.

[59 FR 35185, July 8, 1994, as amended at 66 FR 47063, Sept. 11, 2001]



Sec. 710.8  Criteria.

    Derogatory information shall include, but is not limited to, 
information that the individual has:
    (a) Committed, prepared or attempted to commit, or aided, abetted or 
conspired with another to commit or attempt to commit any act of 
sabotage, espionage, treason, terrorism, or sedition.
    (b) Knowingly established or continued a sympathetic association 
with a saboteur, spy, terrorist, traitor, seditionist, anarchist, or 
revolutionist, espionage agent, or representative of a foreign nation 
whose interests are inimical to the interests of the United States, its 
territories or possessions, or with any person advocating the use of 
force or violence to overthrow the Government of the United States or 
any state or subdivision thereof by unconstitutional means.
    (c) Knowingly held membership in or had a knowing affiliation with, 
or has knowingly taken action which evidences a sympathetic association 
with the intent of furthering the aims of, or adhering to, and actively 
participating in, any foreign or domestic organization, association, 
movement, group, or

[[Page 356]]

combination of persons which advocates or practices the commission of 
acts of force or violence to prevent others from exercising their rights 
under the Constitution or Laws of the United States or any state or 
subdivision thereof by unlawful means.
    (d) Publicly or privately advocated, or participated in the 
activities of a group or organization, which has as its goal, revolution 
by force or violence to overthrow the Government of the United States or 
the alteration of the form of Government of the United States by 
unconstitutional means with the knowledge that it will further those 
goals.
    (e) Parent(s), brother(s), sister(s), spouse, or offspring residing 
in a nation whose interests may be inimical to the interests of the 
United States.
    (f) Deliberately misrepresented, falsified, or omitted significant 
information from a Personnel Security Questionnaire, a Questionnaire for 
Sensitive (or National Security) Positions, a personnel qualifications 
statement, a personnel security interview, written or oral statements 
made in response to official inquiry on a matter that is relevant to a 
determination regarding eligibility for DOE access authorization, or 
proceedings conducted pursuant to Sec. 710.20 through Sec. 710.31.
    (g) Failed to protect classified matter, or safeguard special 
nuclear material; or violated or disregarded security or safeguards 
regulations to a degree which would be inconsistent with the national 
security; or disclosed classified information to a person unauthorized 
to receive such information; or violated or disregarded regulations, 
procedures, or guidelines pertaining to classified or sensitive 
information technology systems.
    (h) An illness or mental condition of a nature which, in the opinion 
of a psychiatrist or licensed clinical psychologist, causes or may 
cause, a significant defect in judgment or reliability.
    (i) Refused to testify before a Congressional Committee, Federal or 
state court, or Federal administrative body, regarding charges relevant 
to eligibility for DOE, or another Federal agency's access 
authorization.
    (j) Been, or is, a user of alcohol habitually to excess, or has been 
diagnosed by a psychiatrist or a licensed clinical psychologist as 
alcohol dependent or as suffering from alcohol abuse.
    (k) Trafficked in, sold, transferred, possessed, used, or 
experimented with a drug or other substance listed in the Schedule of 
Controlled Substances established pursuant to section 202 of the 
Controlled Substances Act of 1970 (such as marijuana, cocaine, 
amphetamines, barbiturates, narcotics, etc.) except as prescribed or 
administered by a physician licensed to dispense drugs in the practice 
of medicine, or as otherwise authorized by Federal law.
    (l) Engaged in any unusual conduct or is subject to any 
circumstances which tend to show that the individual is not honest, 
reliable, or trustworthy; or which furnishes reason to believe that the 
individual may be subject to pressure, coercion, exploitation, or duress 
which may cause the individual to act contrary to the best interests of 
the national security. Such conduct or circumstances include, but are 
not limited to, criminal behavior, a pattern of financial 
irresponsibility, conflicting allegiances, or violation of any 
commitment or promise upon which DOE previously relied to favorably 
resolve an issue of access authorization eligibility.

[59 FR 35185, July 8, 1994, as amended at 66 FR 47063, Sept. 11, 2001]



Sec. 710.9  Action on derogatory information.

    (a) If the reports of investigation of an individual or other 
reliable information tend to establish the validity and significance of 
one or more items in the criteria, or of other reliable information or 
facts which are of security concern, although outside the scope of the 
stated categories, such information shall be regarded as derogatory and 
create a question as to the individual's access authorization 
eligibility.
    (b) If a question arises as to the individual's access authorization 
eligibility, the Local Director of Security shall authorize the conduct 
of an interview with the individual, or other appropriate actions, which 
may include a DOE-sponsored mental evaluation, and, on the basis of the 
results of such interview or actions, may authorize the granting of the 
individual's access

[[Page 357]]

authorization. If, in the opinion of the Local Director of Security, the 
question as to the individual's access authorization eligibility has not 
been favorably resolved, he shall submit the matter to the Manager with 
a recommendation that authority be obtained to process the individual's 
case under administrative review procedures.
    (c) If the Manager agrees that unresolved derogatory information is 
present and that appropriate attempts to resolve such derogatory 
information have been unsuccessful, he shall notify the Director, Office 
of Personnel Security, DOE Headquarters, of his proposal to conduct an 
administrative review proceeding, accompanied by an explanation of the 
security concerns and a duplicate Personnel Security File. If the 
Manager believes that the derogatory information has been favorably 
resolved, he shall direct that access authorization be granted for the 
individual. The Manager may also direct the Local Director of Security 
to obtain additional information in the matter prior to deciding whether 
to grant the individual access authorization or to submit a request for 
authority to conduct an administrative review proceeding. A decision in 
the matter shall be rendered by the Manager within 10 calendar days of 
its receipt.
    (d) Upon receipt of the Manager's notification, the Director, Office 
of Personnel Security, shall review the matter and confer with the 
Manager on:
    (1) The institution of administrative review proceedings set forth 
in Sec. Sec. 710.20 through 710.32;
    (2) The granting of access authorization; or
    (3) Other actions as the Director deems appropriate.
    (e) The Director, Office of Personnel Security, shall act pursuant 
to one of these options within 30 calendar days of the receipt of the 
Manager's notification unless an extension is granted by the Deputy 
Chief for Operations, Office of Health, Safety and Security.

[66 FR 47063, Sept. 11, 2001, as amended at 71 FR 68730, Nov. 28, 2006]



Sec. 710.10  Suspension of access authorization.

    (a) If information is received that raises a question concerning an 
individual's continued access authorization eligibility, the Local 
Director of Security shall authorize action(s), to be taken on an 
expedited basis, to resolve the question pursuant to Sec. 710.9(b). If 
the question as to the individual's continued access authorization 
eligibility is not resolved in favor of the individual, the Local 
Director of Security shall submit the matter to the Manager with a 
recommendation that the individual's access authorization be suspended 
pending the final determination resulting from the procedures in this 
subpart.
    (b) Within two working days of receipt of the recommendation from 
the Local Director of Security to suspend the individual's DOE access 
authorization, the Manager shall review the matter and authorize 
continuation or suspension of access authorization. The access 
authorization of an individual shall not be suspended except by the 
direction of the Manager. This authority to suspend access authorization 
may not be delegated but may be exercised by a person who has been 
designated in writing as Acting Manager.
    (c) Upon suspension of an individual's access authorization pursuant 
to paragraph (b) of this section, the individual, the individual's 
employer, any other DOE Operations Office having an access authorization 
interest in the individual, and, if known, any other government agency 
where the individual holds an access authorization, security clearance, 
or access approval, or to which the DOE has certified the individual's 
DOE access authorization, shall be notified immediately. The Central 
Personnel Clearance Index shall also be updated. Notification to the 
individual shall be made in writing and shall reflect, in general terms, 
the reason(s) why the suspension has been effected. Pending final 
determination of the individual's eligibility for access authorization 
from the operation of the procedures provided in this subpart, the 
individual shall not be afforded access to classified matter, special 
nuclear material, or unescorted access to

[[Page 358]]

security areas that require the individual to possess a DOE access 
authorization.
    (d) Following the decision to suspend an individual's DOE access 
authorization, the Manager shall immediately notify the Director, Office 
of Personnel Security, DOE Headquarters, of the action and the reason(s) 
therefore. In addition, the Manager, within 10 calendar days of the date 
of suspension, shall notify the Director of his proposal to conduct an 
administrative review proceeding, accompanied by an explanation of its 
basis and a duplicate Personnel Security File.
    (e) Upon receipt of the Manager's notification, the Director, Office 
of Personnel Security, shall review the matter and confer with the 
Manager on:
    (1) The institution of administrative review procedures set forth in 
Sec. Sec. 710.20 through 710.32;
    (2) The reinstatement of access authorization; or
    (3) Other actions as the Director deems appropriate.
    (f) The Director, Office of Personnel Security, shall act pursuant 
to one of these options within 30 calendar days of the receipt of the 
Manager's notification unless an extension is granted by the Deputy 
Chief for Operations, Office of Health, Safety and Security.

[59 FR 35185, July 8, 1994, as amended at 66 FR 47064, Sept. 11, 2001; 
71 FR 68730, Nov. 28, 2006]

                          Administrative Review



Sec. 710.20  Purpose of administrative review.

    These procedures establish methods for the conduct of the 
administrative review of questions concerning an individual's 
eligibility for access authorization when it is determined that such 
questions cannot be favorably resolved by interview or other action.



Sec. 710.21  Notice to the individual.

    (a) Unless an extension is authorized by the Director, Office of 
Personnel Security, DOE Headquarters, within 30 calendar days of receipt 
of authority to institute administrative review procedures, the Manager 
shall prepare and deliver to the individual a notification letter 
approved by the local Office of Chief Counsel, or the Office of General 
Counsel for Headquarters cases. Where practicable, the letter shall be 
delivered to the individual in person.
    (b) The letter shall state:
    (1) That reliable information in the possession of DOE has created a 
substantial doubt concerning the individual's eligibility for access 
authorization.
    (2) The information which creates a substantial doubt regarding the 
individual's access authorization eligibility (which shall be as 
comprehensive and detailed as the national security permits) and why 
that information creates such doubt.
    (3) That the individual has the option to have the substantial doubt 
regarding eligibility for access authorization resolved in one of two 
ways:
    (i) By the Manager, without a hearing, on the basis of the existing 
information in the case;
    (ii) By personal appearance before a Hearing Officer (a 
``hearing'').
    (4) That, if the individual desires a hearing, the individual must, 
within 20 calendar days of the date of receipt of the notification 
letter, indicate this in writing to the Manager from whom the letter was 
received.
    (5) That the individual may also file with the Manager the 
individual's written answer to the reported information which raises the 
question of the individual's eligibility for access authorization, and 
that, if the individual requests a hearing without filing a written 
answer, the request shall be deemed a general denial of all of the 
reported information.
    (6) That, if the individual so requests, a hearing will be scheduled 
before a Hearing Officer, with due regard for the convenience and 
necessity of the parties or their representatives, for the purpose of 
affording the individual an opportunity of supporting his eligibility 
for access authorization;
    (7) That, if a hearing is requested, the individual will have the 
right to appear personally before a Hearing Officer; to present evidence 
in his own behalf, through witnesses, or by documents, or both; and, 
subject to the limitations set forth in Sec. 710.26(g), to be present 
during the entire hearing and be accompanied, represented, and advised 
by

[[Page 359]]

counsel or representative of the individual's choosing and at the 
individual's own expense;
    (8) That the individual's failure to file a timely written request 
for a hearing before a Hearing Officer in accordance with paragraph 
(b)(4) of this section, unless time deadlines are extended for good 
cause, will be considered as a relinquishment by the individual of the 
right to a hearing provided in this subpart, and that in such event a 
final decision will be made by the Manager; and
    (9) That in any proceedings under this subpart DOE Counsel will be 
participating on behalf of and representing the Department of Energy, 
and that any statements made by the individual to DOE Counsel may be 
used in subsequent proceedings.
    (c) The notification letter referenced in paragraph (b) of this 
section shall also:
    (1) Describe the individual's access authorization status until 
further notice;
    (2) Advise the individual of the right to representation at the 
individual's own expense at each and every stage of the proceedings;
    (3) Provide the name and telephone number of the designated DOE 
official to contact for any further information desired concerning the 
proceedings, including an explanation of the individual's rights under 
the Freedom of Information and Privacy Acts; and
    (4) Include a copy of this subpart.

[59 FR 35185, July 8, 1994, as amended at 66 FR 47064, Sept. 11, 2001; 
71 FR 68730, Nov. 28, 2006]



Sec. 710.22  Initial decision process.

    (a) The Manager shall make an initial decision as to the 
individual's access authorization eligibility based on the existing 
information in the case if:
    (1) The individual fails to respond to the notification letter by 
filing a timely written request for a hearing before a Hearing Officer 
or fails to respond to the notification letter after requesting an 
extension of time to do so;
    (2) The individual's response to the notification letter does not 
request a hearing before a Hearing Officer; or
    (3) The Hearing Officer refers the individual's case to the Manager 
in accordance with Sec. 710.25(e) or Sec. 710.26(b).
    (b) Unless an extension of time is granted by the Director, Office 
of Personnel Security, DOE Headquarters, the Manager's initial decision 
as to the individual's access authorization eligibility shall be made 
within 15 calendar days of the date of receipt of the information in 
paragraph (a) of this section. The Manager shall either grant or deny, 
or reinstate or revoke, the individual's access authorization.
    (c) A letter reflecting the Manager's initial decision in the 
individual's case shall be signed by the Manager and delivered to the 
individual within 15 calendar days of the date of the Manager's decision 
unless an extension of time is granted by the Director, Office of 
Personnel Security, DOE Headquarters. If the Manager's initial decision 
is unfavorable to the individual, the individual shall be advised:
    (1) Of the Manager's unfavorable decision and the reason(s) 
therefor;
    (2) That within 30 calendar days from the date of receipt of the 
letter, he may file a written request for a review of the Manager's 
initial decision through the Director, Office of Personnel Security, DOE 
Headquarters, to the DOE Headquarters Appeal Panel (hereafter referred 
to as the ``Appeal Panel'');
    (3) That the Director, Office of Personnel Security, DOE 
Headquarters, may, for good cause shown, at the written request of the 
individual, extend the time for filing a written request for a review of 
the case by the Appeal Panel; and
    (4) That if the written request for a review of the Manager's 
initial decision by the Appeal Panel is not filed within 30 calendar 
days of the individual's receipt of the Manager's letter, the Manager's 
initial decision in the case shall be final.

[66 FR 47064, Sept. 11, 2001, as amended at 71 FR 68730, Nov. 28, 2006]



Sec. 710.23  Extensions of time by the Manager.

    The Manager may, for good cause shown, at the written request of the 
individual, extend the time for filing a written request for a hearing, 
and/or the time for filing a written answer to

[[Page 360]]

the matters contained in the notification letter. The Manager shall 
notify the Director, Office of Personnel Security, DOE Headquarters, 
when such extensions have been approved.

[59 FR 35185, July 8, 1994, as amended at 71 FR 68730, Nov. 28, 2006]



Sec. 710.24  Appointment of DOE Counsel.

    (a) Upon receipt from the individual of a written request for a 
hearing, an attorney shall forthwith be assigned by the Manager to act 
as DOE Counsel.
    (b) DOE Counsel is authorized to consult directly with the 
individual if he is not represented by counsel, or with the individual's 
counsel or representative if so represented, to clarify issues and reach 
stipulations with respect to testimony and contents of documents and 
other physical evidence. Such stipulations shall be binding upon the 
individual and the DOE Counsel for the purposes of this subpart.



Sec. 710.25  Appointment of Hearing Officer; prehearing conference; commencement of hearings.

    (a) Upon receipt of a request for a hearing, the Manager shall in a 
timely manner transmit that request to the Office of Hearings and 
Appeals, and identify the DOE Counsel. The Manager shall at the same 
time transmit a copy of the notification letter and the individual's 
response to the Office of Hearings and Appeals.
    (b) Upon receipt of the hearing request from the Manager, the 
Director, Office of Hearings and Appeals, shall appoint, as soon as 
practicable, a Hearing Officer.
    (c) Immediately upon appointment of the Hearing Officer, the Office 
of Hearings and Appeals shall notify the individual and DOE Counsel of 
the Hearing Officer's identity and the address to which all further 
correspondence should be sent.
    (d) The Hearing Officer shall have all powers necessary to regulate 
the conduct of proceedings under this subpart, including, but not 
limited to, establishing a list of persons to receive service of papers, 
issuing subpoenas for witnesses to attend the hearing or for the 
production of specific documents or other physical evidence, 
administering oaths and affirmations, ruling upon motions, receiving 
evidence, regulating the course of the hearing, disposing of procedural 
requests or similar matters, and taking other actions consistent with 
the regulations in this subpart. Requests for subpoenas shall be 
liberally granted except where the Hearing Officer finds that the grant 
of subpoenas would clearly result in evidence or testimony that is 
repetitious, incompetent, irrelevant, or immaterial to the issues in the 
case. The Hearing Officer may take sworn testimony, sequester witnesses, 
and control the dissemination or reproduction of any record or testimony 
taken pursuant to this part, including correspondence, or other relevant 
records or tangible evidence including, but not limited to, information 
retained in computerized or other automated systems in possession of the 
subpoenaed person.
    (e) The Hearing Officer will determine the day, time, and place for 
the hearing. Hearings will normally be held at or near the appropriate 
DOE facility, unless the Hearing Officer determines that another 
location would be more appropriate. Normally the location for the 
hearing will be selected for the convenience of all participants. In the 
event the individual fails to appear at the time and place specified, 
the record in the case shall be closed and returned to the Manager, who 
will then make a final determination regarding the eligibility of the 
individual for DOE access authorization.
    (f) At least 7 calendar days prior to the date scheduled for the 
hearing, the Hearing Officer will convene a prehearing conference for 
the purpose of discussing stipulations and exhibits, identifying 
witnesses, and disposing of other appropriate matters. The conference 
will usually be conducted by telephone.
    (g) Hearings shall commence within 90 calendar days from the date 
the individual's request for hearing is received by the Office of 
Hearings and Appeals. Any extension of the hearing date past 90 calendar 
days from the date the request for hearing is received by the Office of 
Hearings and Appeals shall be approved by the Director, Office of 
Hearings and Appeals.

[[Page 361]]



Sec. 710.26  Conduct of hearings.

    (a) In all hearings conducted under this subpart, the individual 
shall have the right to be represented by a person of his own choosing. 
The individual is responsible for producing witnesses in his own behalf, 
including requesting the issuance of subpoenas, if necessary, or 
presenting other proof before the Hearing Officer to support his defense 
to the allegations contained in the notification letter. With the 
exception of procedural or scheduling matters, the Hearing Officer is 
prohibited from initiating or otherwise engaging inex partediscussions 
about the case during the pendency of proceedings under this part.
    (b) Unless the Hearing Officer finds good cause for granting a 
waiver of this paragraph or granting an extension of time, in the event 
that the individual unduly delays the hearing, such as by failure to 
meet deadlines set by the Hearing Officer, the record shall be closed, 
and a final decision shall be made by the Manager on the basis of the 
record in the case.
    (c) Hearings shall be open only to DOE Counsel, duly authorized 
representatives of the staff of DOE, the individual and his counsel or 
other representatives, and such other persons as may be authorized by 
the Hearing Officer. Unless otherwise ordered by the Hearing Officer, 
witnesses shall testify in the presence of the individual but not in the 
presence of other witnesses.
    (d) DOE Counsel shall assist the Hearing Officer in establishing a 
complete administrative hearing record in the proceeding and bringing 
out a full and true disclosure of all facts, both favorable and 
unfavorable, having a bearing on the issues before the Hearing Officer. 
The individual shall be afforded the opportunity of presenting evidence, 
including testimony by the individual in the individual's own behalf. 
The proponent of a witness shall conduct the direct examination of that 
witness. All witnesses shall be subject to cross- examination, if 
possible. Whenever reasonably possible, testimony shall be given in 
person.
    (e) The Hearing Officer may ask the witnesses any questions which 
the Hearing Officer deems appropriate to assure the fullest possible 
disclosure of relevant and material facts.
    (f) During the course of the hearing, the Hearing Officer shall rule 
on all questions presented to the Hearing Officer for the Hearing 
Officer's determination.
    (g) In the event it appears during the course of the hearing that 
Restricted Data or national security information may be disclosed, it 
shall be the duty of the Hearing Officer to assure that disclosure is 
not made to persons who are not authorized to receive it.
    (h) Formal rules of evidence shall not apply, but the Federal Rules 
of Evidence may be used as a guide for procedures and principles 
designed to assure production of the most probative evidence available. 
The Hearing Officer shall admit into evidence any matters, either oral 
or written, which are material, relevant, and competent in determining 
issues involved, including the testimony of responsible persons 
concerning the integrity of the individual. In making such 
determinations, the utmost latitude shall be permitted with respect to 
relevancy, materiality, and competency. The Hearing Officer may also 
exclude evidence which is incompetent, immaterial, irrelevant, or unduly 
repetitious. Every reasonable effort shall be made to obtain the best 
evidence available. Subject to Sec. Sec. 710.26(1), 710.26(m), 710.(n), 
710.26(o), hearsay evidence may in the discretion of the Hearing Officer 
and for good cause shown be admitted without strict adherence to 
technical rules of admissibility and shall be accorded such weight as 
the circumstances warrant.
    (i) Testimony of the individual and witnesses shall be given under 
oath or affirmation. Attention of the individual and each witness shall 
be directed to 18 U.S.C. 1001 and 18 U.S.C. 1621.
    (j) The Hearing Officer shall endeavor to obtain all the facts that 
are reasonably available in order to arrive at findings. If, prior to or 
during the proceedings, in the opinion of the Hearing Officer, the 
allegations in the notification letter are not sufficient to cover all 
matters into which inquiry should be directed, the Hearing Officer shall 
recommend to the Manager concerned that, in order to give more adequate

[[Page 362]]

notice to the individual, the notification letter should be amended. Any 
amendment shall be made with the concurrence of the local Office of 
Chief Counsel or the Office of General Counsel in Headquarters cases. 
If, in the opinion of the Hearing Officer, the circumstances of such 
amendment may involve undue hardships to the individual because of 
limited time to answer the new allegations in the notification letter, 
an appropriate adjournment shall be granted upon the request of the 
individual.
    (k) A written or oral statement of a person relating to the 
characterization in the notification letter of any organization or 
person other than the individual may be received and considered by the 
Hearing Officer without affording the individual an opportunity to 
cross-examine the person making the statement on matters relating to the 
characterization of such organization or person, provided the individual 
is given notice that it has been received and may be considered by the 
Hearing Officer, and is informed of its contents provided such is not 
prohibited by paragraph (g) of this section.
    (l) Any oral or written statement adverse to the individual relating 
to a controverted issue may be received and considered by the Hearing 
Officer without affording an opportunity for cross-examination in either 
of the following circumstances:
    (1) The head of the agency supplying the statement certifies that 
the person who furnished the information is a confidential informant who 
has been engaged in obtaining intelligence information for the 
Government and that disclosure of the informant's identity would be 
substantially harmful to the national interest;
    (2) The Secretary or his special designee for that particular 
purpose has preliminarily determined, after considering information 
furnished by the investigative agency as to the reliability of the 
person and the accuracy of the statement concerned, that:
    (i) The statement concerned appears to be reliable and material; and
    (ii) Failure of the Hearing Officer to receive and consider such 
statement would, in view of the access sought to Restricted Data, 
national security information, or special nuclear material, be 
substantially harmful to the national security and that the person who 
furnished the information cannot appear to testify
    (A) Due to death, severe illness, or similar cause, in which case 
the identity of the person and the information to be considered shall be 
made available to the individual, or
    (B) Due to some other specified cause determined by the head of the 
agency to be good and sufficient.
    (m) Whenever procedures under paragraph (l) of this section are 
used:
    (1) The individual shall be given a summary or description of the 
information which shall be as comprehensive and detailed as the national 
interest permits, and
    (2) Appropriate consideration shall be accorded to the fact that the 
individual did not have an opportunity to cross-examine such person(s).
    (n) Records compiled in the regular course of business, or other 
physical evidence other than investigative reports obtained by DOE, may 
be received and considered subject to rebuttal without authenticating 
witnesses provided that such information has been furnished to DOE by an 
investigative agency pursuant to its responsibilities in connection with 
assisting the Secretary to safeguard Restricted Data, national security 
information, or special nuclear material.
    (o) Records compiled in the regular course of business, or other 
physical evidence other than investigative reports, relating to a 
controverted issue which, because they are classified, may not be 
inspected by the individual, may be received and considered provided 
that:
    (1) The Secretary or his special designee for that particular 
purpose has made a preliminary determination that such physical evidence 
appears to be material;
    (2) The Secretary or his special designee for that particular 
purpose has made a determination that failure to receive and consider 
such physical evidence would, in view of the access sought to Restricted 
Data, national security information, or special nuclear material sought, 
be substantially harmful to the national security; and

[[Page 363]]

    (3) To the extent that national security permits, a summary or 
description of such physical evidence is made available to the 
individual. In every such case, information as to the authenticity and 
accuracy of such physical evidence furnished by the investigative agency 
shall be considered.
    (p) The Hearing Officer may request the Local Director of Security 
to arrange for additional investigation on any points which are material 
to the deliberations of the Hearing Officer and which the Hearing 
Officer believes need further investigation or clarification. In this 
event, the Hearing Officer shall set forth in writing those issues upon 
which more evidence is requested, identifying where possible persons or 
sources from which the evidence should be sought. The Local Director of 
Security shall make every effort through appropriate sources to obtain 
additional information upon the matters indicated by the Hearing 
Officer.
    (q) A written transcript of the entire proceedings shall be made 
and, except for portions containing Restricted Data or national security 
information, a copy of such transcript shall be furnished the individual 
without cost.
    (r) Whenever information is made a part of the record under the 
exceptions authorized by paragraphs (l) or (o) of this section, the 
record shall contain certificates evidencing that the determinations 
required therein have been made.

[59 FR 35185, July 8, 1994, as amended at 71 FR 68730, Nov. 28, 2006]



Sec. 710.27  Hearing Officer's decision.

    (a) The Hearing Officer shall carefully consider the record in view 
of the standards set forth herein and shall render a decision as to 
whether the grant or restoration of access authorization to the 
individual would not endanger the common defense and security and would 
be clearly consistent with the national interest. In resolving a 
question concerning the eligibility of an individual for access 
authorization under these procedures, the Hearing Officer shall consider 
the factors stated in paragraph 710.7(c) to determine whether the 
findings will be adverse or favorable.
    (b) In reaching the findings, the Hearing Officer shall consider the 
demeanor of the witnesses who have testified at the hearing, the 
probability or likelihood of the truth of their testimony, their 
credibility, and the authenticity and accuracy of documentary evidence, 
or lack of evidence on any material points in issue. If the individual 
is, or may be, handicapped by the non-disclosure to the individual of 
confidential information or by lack of opportunity to cross-examine 
confidential informants, the Hearing Officer shall take that fact into 
consideration. Possible impact of the loss of the individual's access 
authorization upon the DOE program shall not be considered by the 
Hearing Officer.
    (c) The Hearing Officer shall make specific findings based upon the 
record as to the validity of each of the allegations contained in the 
notification letter and the significance which the Hearing Officer 
attaches to such valid allegations. These findings shall be supported 
fully by a statement of reasons which constitute the basis for such 
findings.
    (d) The Hearing Officer's decision shall be based on the Hearing 
Officer's findings of fact. If, after considering all of the factors in 
light of the criteria set forth in this subpart, the Hearing Officer is 
of the opinion that it will not endanger the common defense and security 
and will be clearly consistent with the national interest to grant or 
reinstate access authorization for the individual, the Hearing Officer 
shall render a favorable decision; otherwise, the Hearing Officer shall 
render an unfavorable decision. Within 15 calendar days of the Hearing 
Officer's written decision, the Hearing Officer shall provide copies of 
the decision and the administrative record to the Manager and the 
Director, Office of Personnel Security, DOE Headquarters.

[59 FR 35185, July 8, 1994, as amended at 66 FR 47065, Sept. 11, 2001; 
71 FR 68730, Nov. 28, 2006]



Sec. 710.28  Action on the Hearing Officer's decision.

    (a) Within 10 calendar days of receipt of the decision and the 
administrative record, unless an extension of time is

[[Page 364]]

granted by the Director, Office of Personnel Security, DOE Headquarters, 
the Manager shall:
    (1) Notify the individual in writing of the Hearing Officer's 
decision;
    (2) Advise the individual in writing of the appeal procedures 
available to the individual in paragraph (b) of this section if the 
decision is unfavorable to the individual;
    (3) Advise the individual in writing of the appeal procedures 
available to the Manager and the Director, Office of Personnel Security, 
DOE Headquarters, in paragraph (c) of this section if the decision is 
favorable to the individual; and,
    (4) Provide the individual and/or counsel or representative, a copy 
of the Hearing Officer's decision and the administrative record.
    (b) If the Hearing Officer's decision is unfavorable to the 
individual:
    (1) The individual may file with the Director, Office of Personnel 
Security, DOE Headquarters, a written request for further review of the 
decision by the Appeal Panel along with a statement required by 
paragraph (e) of this section within 30 calendar days of the 
individual's receipt of the Manager's notice;
    (2) The Director, Office of Personnel Security, DOE Headquarters 
may, for good cause shown, extend the time for filing a request for 
further review of the decision by the Appeal Panel at the written 
request of the individual provided the request for an extension of time 
is filed by the individual within 30 calendar days of receipt of the 
Manager's notice;
    (3) The Hearing Officer's decision shall be considered final if the 
individual does not: file a written request for a review of the decision 
by the Appeal Panel or for an extension of time to file a written 
request for further review of the decision by the Appeal Panel in 
accordance with paragraphs (b)(1) or (b)(2) of this section; or, file a 
written request for a further review of the decision by the Appeal Panel 
after having been granted an extension of time to do so.
    (c) If the Hearing Officer's decision is favorable to the 
individual, within 30 calendar days of the individual's receipt of the 
Manager's notice:
    (1) The Manager or the Director, Office of Personnel Security, DOE 
Headquarters, may file a written request for further review of the 
decision by the Appeal Panel along with the statement required by 
paragraph (e) of this section;
    (2) The Deputy Chief for Operations, Office of Health, Safety and 
Security, may, at the written request of the Manager or Director, Office 
of Personnel Security, DOE Headquarters, extend the time for filing a 
request for further review of the decision by the Appeal Panel; or
    (3) The Manager, with the concurrence of the Director, Office of 
Personnel Security, DOE Headquarters, shall grant or reinstate the 
individual's access authorization.
    (d) A copy of any request for further review of the individual's 
case by the Appeal Panel filed by the Manager or the Director, Office of 
Personnel Security, shall be provided to the individual by the Manager.
    (e) The party filing a request for review of the individual's case 
by the Appeal Panel shall include with the request a statement 
identifying the issues on which it wishes the Appeal Panel to focus. A 
copy of such statement shall be served on the other party, who may file 
a response with the Appeal Panel within 20 calendar days of receipt of 
the statement.

[66 FR 47065, Sept. 11, 2001, as amended at 71 FR 68730, Nov. 28, 2006]



Sec. 710.29  Final appeal process.

    (a) The Appeal Panel shall be convened by the Deputy Chief for 
Operations, Office of Health, Safety and Security, to review and render 
a final decision in an access authorization eligibility case referred by 
the individual, the Manager, or the Director, Office of Personnel 
Security, in accordance with Sec. Sec. 710.22, 710.28, and 710.32.
    (b) The Appeal Panel shall consist of three members, each of whom 
shall be a DOE Headquarters employee, a United States citizen, and hold 
a DOE Q access authorization. The Deputy Chief for Operations, Office of 
Health, Safety and Security, shall serve as a permanent member of the 
Appeal Panel and as the Appeal Panel Chairman. The second member of the 
Appeal

[[Page 365]]

Panel shall be a DOE attorney designated by the General Counsel. The 
head of the DOE Headquarters element who has cognizance over the 
individual whose access authorization eligibility is being considered 
may designate an employee to act as the third member on the Appeal 
Panel; otherwise, the third member will be designated by the Chairman. 
Only one member of the Appeal Panel shall be from the security field.
    (c) In filing a written request for a review by the Appeal Panel in 
accordance with Sec. Sec. 710.22 and 710.28, the individual, or the 
counsel or representative, shall identify the relevant issues and may 
also submit any relevant material in support of the individual. The 
individual's written request and supportive material shall be made a 
part of the administrative record. The Director, Office of Personnel 
Security, shall provide staff support to the Appeal Panel as requested 
by the Deputy Chief for Operations, Office of Health, Safety and 
Security.
    (d) Within 15 calendar days from the date of receipt of a request 
for a review of a case by the Appeal Panel, the Deputy Chief for 
Operations, Office of Health, Safety and Security, shall:
    (1) Request the General Counsel to designate an attorney who shall 
serve as an Appeal Panel member;
    (2) Either request the head of the cognizant DOE element to 
designate, or himself designate, an employee from outside the security 
field who shall serve as the third member of the Appeal Panel; and
    (3) Arrange for the Appeal Panel members to convene to review the 
administrative record or provide a copy of the administrative record to 
the other Appeal Panel members for their independent review.
    (e) The Appeal Panel may initiate an investigation of any statement 
or material contained in the request for an Appeal Panel review and use 
any relevant facts obtained by such investigation in the conduct of the 
final decision process. The Appeal Panel may solicit and accept 
submissions from either the individual or DOE officials that are 
relevant to the final decision process and may establish appropriate 
time frames to allow for such submissions. The Appeal Panel may also 
consider any other source of information that will advance the final 
decision process, provided that both parties are afforded an opportunity 
to respond to all third party submissions. All information obtained by 
the Appeal Panel under this section shall be made a part of the 
administrative record.
    (f) Within 45 work days of the closing of the administrative record, 
the Appeal Panel shall render a final written decision in the case 
predicated upon an evaluation of the administrative record, findings as 
to each of the allegations contained in the notification letter, and any 
new evidence that may have been submitted pursuant to Sec. 710.30. If a 
majority of the Appeal Panel members determine that it will not endanger 
the common defense and security and will be clearly consistent with the 
national interest, the Deputy Chief for Operations, Office of Health, 
Safety and Security, shall grant or reinstate access authorization for 
the individual; otherwise, he shall deny or revoke access authorization 
for the individual. The Appeal Panel written decision shall be made a 
part of the administrative record.
    (g) The Deputy Chief for Operations, Office of Health, Safety and 
Security, through the Director, Office of Personnel Security, shall 
inform in writing the individual involved and counsel or representative 
of the Appeal Panel's final decision. A copy of the correspondence shall 
also be provided to the other panel members and the Manager.
    (h) If, upon receipt of a written request for a review of the 
individual's case by the Appeal Panel, the Deputy Chief for Operations, 
Office of Health, Safety and Security, is aware or subsequently becomes 
aware of information that the individual is the subject of an unresolved 
inquiry or investigation of a matter that could reasonably be expected 
to affect the individual's DOE access authorization eligibility, the 
Deputy Chief for Operations may defer action by the Appeal Panel on the 
request until the inquiry or investigation is completed and its results 
available for review by the Appeal Panel. In such instances, the Deputy 
Chief for Operations, shall:

[[Page 366]]

    (1) Obtain written approval from the Secretary to defer review of 
the individual's case by the Appeal Panel for an initial interval not to 
exceed 90 calendar days;
    (2) Advise the individual and appropriate DOE officials in writing 
of the initial deferral and the reason(s) therefor;
    (3) Request that the individual's employment status not be affected 
during the initial and any subsequent deferral interval, except at the 
written request of the individual;
    (4) Obtain written approval from the Secretary to extend the 
deferral for each subsequent 90 calendar day interval and advise in 
writing all concerned parties of the Secretary's approval;
    (5) Inform in writing all concerned parties when the inquiry or 
investigation has been completed and the results made available to the 
Appeal Panel.
    (i) If, upon receipt of a written request for review of an 
individual's case by the Appeal Panel, the Deputy Chief for Operations, 
Office of Health, Safety and Security, is aware or subsequently becomes 
aware of information that adversely affects the individual's DOE access 
authorization eligibility and that cannot for national security reasons 
be disclosed in the proceedings before a DOE Hearing Officer, the Deputy 
Chief for Operations may refer the information and the administrative 
record to the Secretary for the final decision as to the individual's 
DOE access authorization eligibility. In such instances, the Deputy 
Chief for Operations shall notify in writing all concerned parties that 
the individual's case has been provided to the Secretary for a final 
decision in accordance with Sec. 710.31.
    (j) Upon the recommendation of the Appeal Panel, the Secretary may 
exercise the appeal authority of the Appeal Panel. If the Secretary 
exercises the appeal authority, then the decision of the Secretary is 
final.

[66 FR 47065, Sept. 11, 2001, as amended at 71 FR 68731, Nov. 28, 2006]



Sec. 710.30  New evidence.

    (a) In the event of the discovery of new evidence relevant to the 
allegations contained in the notification letter prior to final decision 
of the individual's eligibility for access authorization, such evidence 
shall be submitted by the offering party to the Director, Office of 
Personnel Security, DOE Headquarters. DOE Counsel shall notify the 
individual of any new evidence submitted by DOE.
    (b) The Director, Office of Personnel Security, DOE Headquarters, 
shall:
    (1) Refer the matter to the Hearing Officer appointed in the 
individual's case if the Hearing Officer has not yet issued a decision. 
The Hearing Officer receiving the application for the presentation of 
new evidence shall determine the appropriate form in which any new 
evidence, and the other party's response, shall be received, e.g., by 
testimony before the Hearing Officer, by deposition or by affidavit.
    (2) In those cases where the Hearing Officer's decision has been 
issued, the application for presentation of new evidence shall be 
referred to the Deputy Chief for Operations, Office of Health, Safety 
and Security. In the event that the Deputy Chief for Operations, 
determines that the new evidence shall be received, he shall determine 
the form in which it, and the other party's response, shall be received.
    (c) When new evidence submitted by either party is received into the 
record, the opposing party shall be afforded the opportunity to cross-
examine the source of the new information or to submit a written 
response, unless the information is subject to the exceptions in Sec. 
710.26 (l) or (o).

[59 FR 35185, July 8, 1994. Redesignated and amended at 66 FR 47065, 
47066, Sept. 11, 2001; 71 FR 68731, Nov. 28, 2006]



Sec. 710.31  Action by the Secretary.

    (a) Whenever an individual has not been afforded an opportunity to 
cross-examine witnesses who have furnished information adverse to the 
individual under the provisions of Sec. Sec. 710.26(l) or (o), or the 
opportunity to review and respond to the information provided by the 
Deputy Chief for Operations, Office of Health, Safety and Security, to 
the Secretary under Sec. 710.29(i), only the Secretary may issue a 
final decision to deny or revoke DOE access authorization for the 
individual after personally reviewing the administrative record and any 
additional material provided

[[Page 367]]

by the Deputy Chief for Operations, Office of Health, Safety and 
Security. The Secretary's authority may not be delegated and may be 
exercised only when the Secretary determines that the circumstances 
described in Sec. 710.26(l) or (o), or Sec. 710.29(i) are present, and 
such determination shall be final.
    (b) Whenever the Secretary issues a final decision as to the 
individual's DOE access authorization eligibility, the individual and 
other concerned parties will be notified in writing, by the Deputy Chief 
for Operations, Office of Health, Safety and Security, of that decision 
and of the Secretary's findings with respect to each of the allegations 
contained in the notification letter and each substantial issue 
identified in the statement in support of the request for review to the 
extent allowed by the national security.
    (c) Nothing contained in these procedures shall be deemed to limit 
or affect the responsibility and powers of the Secretary to issue 
subpoenas or to deny or revoke access to Restricted Data, national 
security information, or special nuclear material.
    (d) Only the Secretary may approve initial and subsequent requests 
under Sec. 710.29(h) by the Deputy Chief for Operations, Office of 
Health, Safety and Security, to defer the review of an individual's case 
by the Appeal Panel.

[66 FR 47066, Sept. 11, 2001, as amended at 71 FR 68731, Nov. 28, 2006]



Sec. 710.32  Reconsideration of access eligibility.

    (a) If, pursuant to the procedures set forth in Sec. Sec. 710.20 
through 710.31 the Manager, Hearing Officer, Appeal Panel, or the 
Secretary has made a decision granting or reinstating access 
authorization for an individual, the individual's access authorization 
eligibility shall be reconsidered as a new administrative review under 
the procedures set forth in this subpart when previously unconsidered 
derogatory information is identified, or the individual violates a 
commitment or promise upon which the DOE previously relied to favorably 
resolve an issue of access authorization eligibility.
    (b) If, pursuant to the procedures set forth in Sec. Sec. 710.20 
through 710.31 the Manager, Hearing Officer, Appeal Panel, or the 
Secretary has made a decision denying or revoking access authorization 
for the individual, the individual's access authorization eligibility 
may be reconsidered only when the individual so requests, when there is 
a bona fide offer of employment requiring access to Restricted Data, 
national security information, or special nuclear material, and when 
there is either:
    (1) Material and relevant new evidence which the individual and the 
individual's representatives are without fault in failing to present 
earlier, or
    (2) Convincing evidence of rehabilitation or reformation.
    (c) A request for reconsideration shall be submitted in writing to 
the Deputy Chief for Operations, Office of Health, Safety and Security, 
accompanied by an affidavit setting forth in detail the new evidence or 
evidence of rehabilitation or reformation. If the Deputy Chief for 
Operations, determines that the regulatory requirements for 
reconsideration have been met, the Director shall notify the individual 
that the individual's access authorization shall be reconsidered in 
accordance with established procedures for determining eligibility for 
access authorizations.
    (d) If the individual's access authorization is not reinstated 
following reconsideration, the individual shall be advised by the 
Director, Office of Personnel Security, DOE Headquarters, in writing:
    (1) Of the unfavorable action and the reason(s) therefor; and
    (2) That within 30 calendar days from the date of receipt of the 
notification, he may file, through the Director, Office of Personnel 
Security, DOE Headquarters, DOE Headquarters, a written request for a 
review of the decision by the Appeal Panel, in accordance with Sec. 
710.29.

[66 FR 47066, Sept. 11, 2001, as amended at 71 FR 68731, Nov. 28, 2006]

                              Miscellaneous



Sec. 710.33  Terminations.

    If the individual is no longer an applicant for access authorization 
or no longer requires access authorization,

[[Page 368]]

the procedures of this subpart shall be terminated without a final 
decision as to the individual's access authorization eligibility, unless 
a final decision has been rendered prior to the DOE being notified of 
the change in the individual's pending access authorization status.

[66 FR 47067, Sept. 11, 2001]



Sec. 710.34  Attorney representation.

    In the event the individual is represented by an attorney or other 
representatives, the individual shall file with the Hearing Officer and 
DOE Counsel a document designating such attorney or representatives and 
authorizing one such attorney or representative to receive all 
correspondence, transcripts, and other documents pertaining to the 
proceeding under this subpart.

[59 FR 35185, July 8, 1994. Redesignated at 66 FR 47065, Sept. 11, 2001]



Sec. 710.35  Time frames.

    Statements of time established for processing aspects of a case 
under this subpart are the agency's desired time frames in implementing 
the procedures set forth in this subpart. However, failure to meet the 
time frames shall have no impact upon the final disposition of an access 
authorization by a Manager, Hearing Officer, the Appeal Panel, or the 
Secretary, and shall confer no procedural or substantive rights upon an 
individual whose access authorization eligibility is being considered.

[66 FR 47067, Sept. 11, 2001]



Sec. 710.36  Acting officials.

    Except for the Secretary, the responsibilities and authorities 
conferred in this subpart may be exercised by persons who have been 
designated in writing as acting for, or in the temporary capacity of, 
the following DOE positions: The Local Director of Security, the 
Manager, the Director, Office of Personnel Security, DOE Headquarters, 
or the General Counsel. The responsibilities and authorities of the 
Deputy Chief for Operations, Office of Health, Safety and Security, may 
be exercised in his absence only by his designee.

[66 FR 47067, Sept. 11, 2001, as amended at 71 FR 68731, Nov. 28, 2006]



  Sec. Appendix A to Subpart A of Part 710--Selected Provisions of the 
 
 Atomic Energy Act of 1954, as Amended, Sec. 141 (42 U.S.C. 2161), Sec. 
             145 (42 U.S.C. 2165), Sec. 161 (42 U.S.C. 2201)

(By authority of the Department of Energy Organization Act, 42 U.S.C. 
7151(a), the Secretary of Energy or her designated representative is to 
be substituted for the ``Commission'' and ``General Manager'' as 
appropriate.)

    Sec. 141. Policy. It shall be the policy of the Commission to 
control the dissemination and declassification of Restricted Data in 
such a manner as to assure the common defense and security. * * *
    Sec. 145. Restriction. (a) No arrangement shall be made under 
section 31, no contract shall be made or continued in effect under 
section 141, and no license shall be issued under section 103 or 104, 
unless the person with whom such arrangement is made, the contractor or 
prospective contractor, or the prospective licensee agrees in writing 
not to permit any individual to have access to Restricted Data until the 
Civil Service Commission shall have made an investigation and report to 
the Commission on the character, associations, and loyalty of such 
individual, and the Commission shall have determined that permitting 
such person to have access to Restricted Data will not endanger the 
common defense and security.
    (b) Except as authorized by the Commission or the General Manager 
upon a determination by the Commission or General Manager that such 
action is clearly consistent with the national interest, no individual 
shall be employed by the Commission nor shall the Commission permit any 
individual to have access to Restricted Data until the Civil Service 
Commission shall have made an investigation and report to the Commission 
on the character, associations, and loyalty of such individual, and the 
Commission shall have determined that permitting such person to have 
access to Restricted Data will not endanger the common defense and 
security.
    (c) In lieu of the investigation and report to be made by the Civil 
Service Commission pursuant to subsection (b) of this appendix, the 
Commission may accept an investigation and report on the character, 
associations, and loyalty of an individual made by another Government 
agency which conducts personnel security investigations, provided that a 
security clearance has been granted to such individual by another 
Government

[[Page 369]]

agency based on such investigation and report.
    (d) In the event an investigation made pursuant to subsections (a) 
and (b) of this appendix develops any data reflecting that the 
individual who is the subject of the investigation is of questionable 
loyalty, the Civil Service Commission shall refer the matter to the 
Federal Bureau of Investigation for the conduct of a full field 
investigation, the results of which shall be furnished to the Civil 
Service Commission for its information and appropriate action.
    (e) If the President deems it to be in the national interest he may 
from time to time determine that investigations of any group or class 
which are required by subsections (a), (b), and (c) of this appendix be 
made by the Federal Bureau of Investigation.
    (f) Notwithstanding the provisions of subsections (a), (b), and (c) 
of this appendix, a majority of the members of the Commission shall 
certify those specific positions which are of a high degree of 
importance or sensitivity, and upon such certification, the 
investigation and reports required by such provisions shall be made by 
the Federal Bureau of Investigation.
    (g) The Commission shall establish standards and specifications in 
writing as to the scope and extent of investigations, the reports of 
which will be utilized by the Commission in making the determination, 
pursuant to subsections (a), (b), and (c) of this appendix, that 
permitting a person access to Restricted Data will not endanger the 
common defense and security. Such standards and specifications shall be 
based on the location and class or kind of work to be done, and shall, 
among other considerations, take into account the degree of importance 
to the common defense and security of the Restricted Data to which 
access will be permitted.
    (h) Whenever the Congress declares that a state of war exists, or in 
the event of a national disaster due to enemy attack, the Commission is 
authorized during the state of war or period of national disaster due to 
enemy attack to employ individuals and to permit individuals access to 
Restricted Data pending the investigation report, and determination 
required by section 145b, to the extent that and so long as the 
Commission finds that such action is required to prevent impairment of 
its activities in furtherance of the common defense and security.
    Sec. 161. General provisions. In the performance of its functions 
the Commission is authorized to:
    (a) Establish advisory boards to advise with and make 
recommendations to the Commission on legislation, policies, 
administration, research, and other matters, provided that the 
Commission issues regulations setting forth the scope, procedure, and 
limitations of the authority of each such board;
    (b) Establish by rule, regulation, or order, such standards and 
instructions to govern the possession and use of special nuclear 
material, source material, and byproduct material as the Commission may 
deem necessary or desirable to promote the common defense and security 
or to protect health or to minimize danger to life or property;
    (c) Make such studies and investigations, obtain such information, 
and hold such meetings or hearings as the Commission may deem necessary 
or proper to assist it in exercising any authority provided in this 
chapter, or in the administration or enforcement of this Act, or any 
regulations or orders issued thereunder. For such purposes the 
Commission is authorized to administer oaths and affirmations, and by 
subpoena to require any person to appear and testify, or to appear and 
produce documents, or both, at any designated place. Witnesses 
subpoenaed under this subsection, shall be paid the same fees and 
mileage as are paid witnesses in the district courts of the United 
States.

                                * * * * *

    (i) Prescribe such regulations or orders as it may deem necessary 
(1) to protect Restricted Data received by any person in connection with 
any activity authorized pursuant to this Act, (2) to guard against the 
loss or diversion of any special nuclear material acquired by any person 
pursuant to section 53 or produced by any person in connection with any 
activity authorized pursuant to the Act, to prevent any use or 
disposition thereof which the Commission may determine to be inimical to 
the common defense and security, including regulations or orders 
designating activities, involving quantities of special nuclear material 
which in the opinion of the Commission are important to the common 
defense and security, that may be conducted only by persons whose 
character, associations, and loyalty shall have been investigated under 
standards and specifications established by the Commission and as to 
whom the Commission shall have determined that permitting each such 
person to conduct the activity will not be inimical to the common 
defense and security, and (3) to govern any activity authorized pursuant 
to this Act, including standards and restrictions governing the design, 
location, and operation of facilities used in the conduct of such 
activity, in order to protect health and to minimize danger to life or 
property;

                                * * * * *

    (n) Delegate to the General Manager or other officers of the 
Commission any of those functions assigned to it under this Act except 
those specified in sections 51, 57b, 61,

[[Page 370]]

108, 123, 145b (with respect to the determination of those persons to 
whom the Commission may reveal Restricted Data in the national 
interest), 145f, and 161a;

                                * * * * *

    (p) Make, promulgate, issue, rescind, and amend such rules and 
regulations as may be necessary to carry out the purposes of this Act.



   Sec. Appendix B to Subpart A of Part 710--Adjudicative Guidelines 


Approved by the President in Accordance With the Provisions of Executive 
                               Order 12968

(The following guidelines, included in this subpart for reference 
purposes only, are reproduced as provided to the DOE by the Security 
Policy Board. The President may change the guidelines without notice.)

   Adjudicative Guidelines for Determining Eligibility for Access to 
                         Classified Information

    1. Introduction. The following adjudicative guidelines are 
established for all U.S. government civilian and military personnel, 
consultants, contractors, employees of contractors, licensees, 
certificate holders or grantees and their employees and other 
individuals who require access to classified information. They apply to 
persons being considered for initial or continued eligibility for access 
to classified information, to include sensitive compartmented 
information and special access programs and are to be used by government 
departments and agencies in all final clearance determinations.
    2. The Adjudicative Process.
    (a) The adjudicative process is an examination of a sufficient 
period of a person's life to make an affirmative determination that the 
person is eligible for a security clearance. Eligibility for access to 
classified information is predicated upon the individual meeting these 
personnel security guidelines. The adjudicative process is the careful 
weighing of a number of variables known as the whole person concept. 
Available, reliable information about the person, past and present, 
favorable and unfavorable, should be considered in reaching a 
determination. In evaluating the relevance of an individual's conduct, 
the adjudicator should consider the following factors:
    (1) The nature, extent, and seriousness of the conduct;
    (2) The circumstances surrounding the conduct, to include 
knowledgeable participation;
    (3) The frequency and recency of the conduct;
    (4) The individual's age and maturity at the time of the conduct;
    (5) The voluntariness of participation;
    (6) The presence or absence of rehabilitation and other pertinent 
behavioral changes;
    (7) The motivation for the conduct;
    (8) The potential for pressure, coercion, exploitation, or duress; 
and
    (9) The likelihood of continuation or recurrence.
    (b) Each case must be judged on its own merits, and final 
determination remains the responsibility of the specific department or 
agency. Any doubt as to whether access to classified information is 
clearly consistent with national security will be resolved in favor of 
the national security.
    (c) The ultimate determination of whether the granting or continuing 
of eligibility for a security clearance is clearly consistent with the 
interests of national security must be an overall common sense 
determination based upon careful consideration of the following, each of 
which is to be evaluated in the context of the whole person concept, as 
explained further below:
    (1) Guideline A: Allegiance to the United States;
    (2) Guideline B: Foreign influence;
    (3) Guideline C: Foreign preference;
    (4) Guideline D: Sexual behavior;
    (5) Guideline E: Personal conduct;
    (6) Guideline F: Financial considerations;
    (7) Guideline G: Alcohol consumption;
    (8) Guideline H: Drug involvement;
    (9) Guideline I: Emotional, mental, and personality disorders;
    (10) Guideline J: Criminal Conduct;
    (11) Guideline K: Security violations;
    (12) Guideline L: Outside activities;
    (13) Guideline M: Misuse of Information Technology Systems.
    (d) Although adverse information concerning a single criterion may 
not be sufficient for an unfavorable determination, the individual may 
be disqualified if available information reflects a recent or recurring 
pattern of questionable judgment, irresponsibility, or emotionally 
unstable behavior. Notwithstanding, the whole person concept, pursuit of 
further investigation may be terminated by an appropriate adjudicative 
agency in the face of reliable, significant, disqualifying, adverse 
information.
    (e) When information of security concern becomes known about an 
individual who is currently eligible for access to classified 
information, the adjudicator should consider whether the person:
    (1) Voluntarily reported the information;
    (2) Was truthful and complete in responding to questions;
    (3) Sought assistance and followed professional guidance, where 
appropriate;
    (4) Resolved or appears likely to favorably resolve the security 
concern;

[[Page 371]]

    (5) Has demonstrated positive changes in behavior and employment;
    (6) Should have his or her access temporarily suspended pending 
final adjudication of the information.
    (f) If after evaluating information of security concern, the 
adjudicator decides that the information is not serious enough to 
warrant a recommendation of disapproval or revocation of the security 
clearance, it may be appropriate to recommend approval with a warning 
that future incidents of a similar nature may result in revocation of 
access.

              Guideline A: Allegiance to the United States

    3. The Concern. An individual must be of unquestioned allegiance to 
the United States. The willingness to safeguard classified information 
is in doubt if there is any reason to suspect an individual's allegiance 
to the United States.
    4. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) Involvement in any act of sabotage, espionage, treason, 
terrorism, sedition, or other act whose aim is to overthrow the 
Government of the United States or alter the form of government by 
unconstitutional means;
    (b) Association or sympathy with persons who are attempting to 
commit, or who are committing, any of the above acts;
    (c) Association or sympathy with persons or organizations that 
advocate the overthrow of the United States Government, or any state or 
subdivision, by force or violence or by other unconstitutional means;
    (d) Involvement in activities which unlawfully advocate or practice 
the commission of acts of force or violence to prevent others from 
exercising their rights under the Constitution or laws of the United 
States or of any state.
    5. Conditions that could mitigate security concerns include:
    (a) The individual was unaware of the unlawful aims of the 
individual or organization and severed ties upon learning of these;
    (b) The individual's involvement was only with the lawful or 
humanitarian aspects of such an organization;
    (c) Involvement in the above activities occurred for only a short 
period of time and was attributable to curiosity or academic interest;
    (d) The person has had no recent involvement or association with 
such activities.

                     Guideline B: Foreign Influence

    6. The Concern. A security risk may exist when an individual's 
immediate family, including cohabitants and other persons to whom he or 
she may be bound by affection, influence, or obligation are not citizens 
of the United States or may be subject to duress. These situations could 
create the potential for foreign influence that could result in the 
compromise of classified information. Contacts with citizens of other 
countries or financial interests in other countries are also relevant to 
security determinations if they make an individual potentially 
vulnerable to coercion, exploitation, or pressure.
    7. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) An immediate family member, or a person to whom the individual 
has close ties of affection or obligation, is a citizen of, or resident 
or present in, a foreign country.
    (b) Sharing living quarters with a person or persons, regardless of 
their citizenship status, if the potential for adverse foreign influence 
or duress exists;
    (c) Relatives, cohabitants, or associates who are connected with any 
foreign country;
    (d) Failing to report, where required, associations with foreign 
nationals;
    (e) Unauthorized association with a suspected or known collaborator 
or employee of a foreign intelligence service;
    (f) Conduct which may make the individual vulnerable to coercion, 
exploitation, or pressure by a foreign government;
    (g) Indications that representatives or nationals from a foreign 
country are acting to increase the vulnerability of the individual to 
possible future exploitation, coercion or pressure;
    (h) A substantial financial interest in a country, or in any foreign 
owned or operated business that could make the individual vulnerable to 
foreign influence.
    8. Conditions that could mitigate security concerns include:
    (a) A determination that the immediate family member(s) (spouse, 
father, mother, sons, daughters, brothers, sisters), cohabitant, or 
associate(s) in question are not agents of a foreign power or in a 
position to be exploited by a foreign power in a way that could force 
the individual to choose between loyalty to the person(s) involved and 
the United States;
    (b) Contacts with foreign citizens are the result of official United 
States Government business;
    (c) Contact and correspondence with foreign citizens are casual and 
infrequent;
    (d) The individual has promptly complied with existing agency 
requirements regarding the reporting of contacts, requests, or threats 
from persons or organizations from a foreign country;
    (e) Foreign financial interests are minimal and not sufficient to 
affect the individual's security responsibilities.

                     Guideline C: Foreign Preference

    9. The Concern. When an individual acts in such a way as to indicate 
a preference for a foreign country over the United States, then

[[Page 372]]

he or she may be prone to provide information or make decisions that are 
harmful to the interests of the United States.
    10. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) The exercise of dual citizenship;
    (b) Possession and/or use of a foreign passport;
    (c) Military service or a willingness to bear arms for a foreign 
country;
    (d) Accepting educational, medical, or other benefits, such as 
retirement and social welfare, from a foreign country;
    (e) Residence in a foreign country to meet citizenship requirements;
    (f) Using foreign citizenship to protect financial or business 
interests in another country;
    (g) Seeking or holding political office in the foreign country;
    (h) Voting in foreign elections; and
    (i) Performing or attempting to perform duties, or otherwise acting, 
so as to serve the interests of another government in preference to the 
interests of the United States.
    11. Conditions that could mitigate security concerns include:
    (a) Dual citizenship is based solely on parents' citizenship or 
birth in a foreign country;
    (b) Indicators of possible foreign preference (e.g., foreign 
military service) occurred before obtaining United States citizenship;
    (c) Activity is sanctioned by the United States;
    (d) Individual has expressed a willingness to renounce dual 
citizenship.

                      Guideline D: Sexual Behavior

    12. The Concern. Sexual behavior is a security concern if it 
involves a criminal offense, indicates a personality or emotional 
disorder, may subject the individual to coercion, exploitation, or 
duress, or reflects lack of judgment or discretion. (The adjudicator 
should also consider guidelines pertaining to criminal conduct 
(Guideline J) and emotional, mental, and personality disorders 
(Guideline I) in determining how to resolve the security concerns raised 
by sexual behavior.) Sexual orientation or preference may not be used as 
a basis for a disqualifying factor in determining a person's eligibility 
for a security clearance.
    13. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) Sexual behavior of a criminal nature, whether or not the 
individual has been prosecuted;
    (b) Compulsive or addictive sexual behavior when the person is 
unable to stop a pattern of self-destructive high-risk behavior or that 
which is symptomatic of a personality disorder;
    (c) Sexual behavior that causes an individual to be vulnerable to 
coercion, exploitation, or duress;
    (d) Sexual behavior of a public nature and/or that which reflects 
lack of discretion or judgment.
    14. Conditions that could mitigate security concerns include:
    (a) The behavior occurred during or prior to adolescence and there 
is no evidence of subsequent conduct of a similar nature;
    (b) The behavior was not recent and there is no evidence of 
subsequent conduct of a similar nature;
    (c) There is no other evidence of questionable judgment, 
irresponsibility, or emotional instability;
    (d) The behavior no longer serves as a basis for coercion, 
exploitation, or duress.

                      Guideline E: Personal Conduct

    15. The Concern. Conduct involving questionable judgment, 
untrustworthiness, unreliability, lack of candor, dishonesty, or 
unwillingness to comply with rules and regulations could indicate that 
the person may not properly safeguard classified information. The 
following will normally result in an unfavorable clearance action or 
administrative termination of further processing for clearance 
eligibility:
    (a) Refusal to undergo or cooperate with required security 
processing, including medical and psychological testing; or
    (b) Refusal to complete required security forms, releases, or 
provide full, frank and truthful answers to lawful questions of 
investigators, security officials or other official representatives in 
connection with a personnel security or trustworthiness determination.
    16. Conditions that could raise a security concern and may be 
disqualifying also include:
    (a) Reliable, unfavorable information provided by associates, 
employers, coworkers, neighbors, and other acquaintances;
    (b) The deliberate omission, concealment, or falsification of 
relevant and material facts from any personnel security questionnaire, 
personal history statement, or similar form used to conduct 
investigations, determine employment qualifications, award benefits or 
status, determine security clearance eligibility or trustworthiness, or 
award fiduciary responsibilities;
    (c) Deliberately providing false or misleading information 
concerning relevant and material matters to an investigator, security 
official, competent medical authority, or other official representative 
in connection with a personnel security or trustworthiness 
determination.
    (d) Personal conduct or concealment of information that may increase 
an individual's vulnerability to coercion, exploitation, or duress, such 
as engaging in activities which, if known, may affect the person's 
personal, professional, or community standing or render the person 
susceptible to blackmail;

[[Page 373]]

    (e) A pattern of dishonesty or rule violations, including violation 
of any written or recorded agreement made between the individual and the 
agency;
    (f) Association with persons involved in criminal activity.
    17. Conditions that could mitigate security concerns include:
    (a) The information was unsubstantiated or not pertinent to a 
determination of judgment, trustworthiness, or reliability;
    (b) The falsification was an isolated incident, was not recent, and 
the individual has subsequently provided correct information 
voluntarily;
    (c) The individual made prompt, good-faith efforts to correct the 
falsification before being confronted with the facts;
    (d) Omission of material facts was caused or significantly 
contributed to by improper or inadequate advice of authorized personnel, 
and the previously omitted information was promptly and fully provided;
    (e) The individual has taken positive steps to significantly reduce 
or eliminate vulnerability to coercion, exploitation, or duress;
    (f) A refusal to cooperate was based on advice from legal counsel or 
other officials that the individual was not required to comply with 
security processing requirements and, upon being made aware of the 
requirement, fully and truthfully provided the requested information;
    (g) Association with persons involved in criminal activities has 
ceased.

                  Guideline F: Financial Considerations

    18. The Concern. An individual who is financially overextended is at 
risk of having to engage in illegal acts to generate funds. Unexplained 
affluence is often linked to proceeds from financially profitable 
criminal acts.
    19. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) A history of not meeting financial obligations;
    (b) Deceptive or illegal financial practices such as embezzlement, 
employee theft, check fraud, income tax evasion, expense account fraud, 
filing deceptive loan statements, and other intentional financial 
breaches of trust;
    (c) Inability or unwillingness to satisfy debts;
    (d) Unexplained affluence;
    (e) Financial problems that are linked to gambling, drug abuse, 
alcoholism, or other issues of security concern.
    20. Conditions that could mitigate security concerns include:
    (a) The behavior was not recent;
    (b) It was an isolated incident;
    (c) The conditions that resulted in the behavior were largely beyond 
the person's control (e.g., loss of employment, a business downturn, 
unexpected medical emergency, or a death, divorce or separation);
    (d) The person has received or is receiving counseling for the 
problem and there are clear indications that the problem is being 
resolved or is under control;
    (e) The affluence resulted from a legal source; and
    (f) The individual initiated a good-faith effort to repay overdue 
creditors or otherwise resolve debts.

                    Guideline G: Alcohol Consumption

    21. The Concern. Excessive alcohol consumption often leads to the 
exercise of questionable judgment, unreliability, failure to control 
impulses, and increases the risk of unauthorized disclosure of 
classified information due to carelessness.
    22. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) Alcohol-related incidents away from work, such as driving while 
under the influence, fighting, child or spouse abuse, or other criminal 
incidents related to alcohol use;
    (b) Alcohol-related incidents at work, such as reporting for work or 
duty in an intoxicated or impaired condition, or drinking on the job;
    (c) Diagnosis by a credentialed medical professional (e.g., 
physician, clinical psychologist, or psychiatrist) of alcohol abuse or 
alcohol dependence;
    (d) Evaluation of alcohol abuse or alcohol dependence by a licensed 
clinical social worker who is a staff member of a recognized alcohol 
treatment program;
    (e) Habitual or binge consumption of alcohol to the point of 
impaired judgment;
    (f) Consumption of alcohol, subsequent to a diagnosis of alcoholism 
by a credentialed medical professional and following completion of an 
alcohol rehabilitation program.
    23. Conditions that could mitigate security concerns include:
    (a) The alcohol related incidents do not indicate a pattern;
    (b) The problem occurred a number of years ago and there is no 
indication of a recent problem;
    (c) Positive changes in behavior supportive of sobriety;
    (d) Following diagnosis of alcohol abuse or alcohol dependence, the 
individual has successfully completed inpatient or outpatient 
rehabilitation along with aftercare requirements, participated 
frequently in meetings of Alcoholics Anonymous or a similar 
organization, has abstained from alcohol for a period of at least 12 
months, and received a favorable prognosis by a credentialed medical 
professional or a licensed clinical social worker who is a staff member 
of a recognized alcohol treatment program.

                      Guideline H: Drug Involvement

    24. The Concern.

[[Page 374]]

    (a) Improper or illegal involvement with drugs raises questions 
regarding an individual's willingness or ability to protect classified 
information. Drug abuse or dependence may impair social or occupational 
functioning, increasing the risk of an unauthorized disclosure of 
classified information.
    (b) Drugs are defined as mood and behavior altering substances and 
include: (1) Drugs, materials, and other chemical compounds identified 
and listed in the Controlled Substances Act of 1970, as amended (e.g., 
marijuana or cannabis, depressants, narcotics, stimulants, and 
hallucinogens), and (2) inhalants and other similar substances.
    (c) Drug abuse is the illegal use of a drug or use of a legal drug 
in a manner that deviates from approved medical direction.
    25. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) Any drug abuse (see above definition);
    (b) Illegal drug possession, including cultivation, processing, 
manufacture, purchase, sale, or distribution;
    (c) Diagnosis by a credentialed medical professional (e.g., 
physician, clinical psychologist, or psychiatrist) of drug abuse or drug 
dependence;
    (d) Evaluation of drug abuse or drug dependence by a licensed 
clinical social worker who is a staff member of a recognized drug 
treatment program;
    (e) Failure to successfully complete a drug treatment program 
prescribed by a credentialed medical professional. Recent drug 
involvement, especially following the granting of a security clearance, 
or an expressed intent not to discontinue use, will almost invariably 
result in an unfavorable determination.
    26. Conditions that could mitigate security concerns include:
    (a) The drug involvement was not recent;
    (b) The drug involvement was an isolated or aberrational event;
    (c) A demonstrated intent not to abuse any drugs in the future;
    (d) Satisfactory completion of a prescribed drug treatment program, 
including rehabilitation and aftercare requirements, without recurrence 
of abuse, and a favorable prognosis by a credentialed medical 
professional.

        Guideline I: Emotional, Mental, and Personality Disorders

    27. The Concern. Emotional, mental, and personality disorders can 
cause a significant defect in an individual's psychological, social and 
occupational functioning. These disorders are of security concern 
because they may indicate a defect in judgment, reliability, or 
stability. A credentialed mental health professional (e.g., clinical 
psychologist or psychiatrist), employed by, acceptable to or approved by 
the government, should be utilized in evaluating potentially 
disqualifying and mitigating information fully and properly, and 
particularly for consultation with the individual's mental health care 
provider.
    28. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) An opinion by a credentialed mental health professional that the 
individual has a condition or treatment that may indicate a defect in 
judgment, reliability, or stability;
    (b) Information that suggests that an individual has failed to 
follow appropriate medical advice relating to treatment of a condition, 
e.g., failure to take prescribed medication;
    (c) A pattern of high-risk, irresponsible, aggressive, anti-social 
or emotionally unstable behavior;
    (d) Information that suggests that the individual's current behavior 
indicates a defect in his or her judgment or reliability.
    29. Conditions that could mitigate security clearance concerns 
include:
    (a) There is no indication of a current problem;
    (b) Recent opinion by a credentialed mental health professional that 
an individual's previous emotional, mental, or personality disorder is 
cured, under control or in remission and has a low probability of 
recurrence or exacerbation;
    (c) The past emotional instability was a temporary condition (e.g., 
one caused by a death, illness, or marital breakup), the situation has 
been resolved, and the individual is no longer emotionally unstable.

                      Guideline J: Criminal Conduct

    30. The Concern. A history or pattern of criminal activity creates a 
doubt about a person's judgment, reliability and trustworthiness.
    31. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) Allegations or admissions of criminal conduct, regardless of 
whether the person was formally charged;
    (b) A single serious crime or multiple lesser offenses.
    32. Conditions that could mitigate security concerns include:
    (a) The criminal behavior was not recent;
    (b) The crime was an isolated incident;
    (c) The person was pressured or coerced into committing the act and 
those pressures are no longer present in that person's life;
    (d) The person did not voluntarily commit the act and/or the factors 
leading to the violation are not likely to recur;
    (e) Acquittal;
    (f) There is clear evidence of successful rehabilitation.

[[Page 375]]

                    Guideline K: Security Violations

    33. The Concern. Noncompliance with security regulations raises 
doubt about an individual's trustworthiness, willingness, and ability to 
safeguard classified information.
    34. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) Unauthorized disclosure of classified information;
    (b) Violations that are deliberate or multiple or due to negligence.
    35. Conditions that could mitigate security concerns include actions 
that:
    (a) Were inadvertent;
    (b) Were isolated or infrequent;
    (c) Were due to improper or inadequate training;
    (d) Demonstrate a positive attitude towards the discharge of 
security responsibilities.

                     Guideline L: Outside Activities

    36. The Concern. Involvement in certain types of outside employment 
or activities is of security concern if it poses a conflict with an 
individual's security responsibilities and could create an increased 
risk of unauthorized disclosure of classified information.
    37. Conditions that could raise a security concern and may be 
disqualifying include any service, whether compensated, volunteer, or 
employment with:
    (a) A foreign country;
    (b) Any foreign national;
    (c) A representative of any foreign interest;
    (d) Any foreign, domestic, or international organization or person 
engaged in analysis, discussion, or publication of material on 
intelligence, defense, foreign affairs, or protected technology.
    38. Conditions that could mitigate security concerns include:
    (a) Evaluation of the outside employment or activity indicates that 
it does not pose a conflict with an individual's security 
responsibilities;
    (b) The individual terminates employment or discontinues the 
activity upon being notified that it is in conflict with his or her 
security responsibilities.

          Guideline M: Misuse of Information Technology Systems

    39. The Concern. Noncompliance with rules, procedures, guidelines, 
or regulations pertaining to information technology systems may raise 
security concerns about an individual's trustworthiness, willingness, 
and ability to properly protect classified systems, networks, and 
information. Information Technology Systems include all related 
equipment used for the communication, transmission, processing, 
manipulation, and storage of classified or sensitive information.
    40. Conditions that could raise a security concern and may be 
disqualifying include:
    (a) Illegal or unauthorized entry into any information technology 
system;
    (b) Illegal or unauthorized modification destruction, manipulation 
or denial of access to information residing on an information technology 
system;
    (c) Removal (or use) of hardware, software, or media from any 
information technology system without authorization, when specifically 
prohibited by rules, procedures, guidelines or regulations;
    (d) Introduction of hardware, software, or media into any 
information technology system without authorization, when specifically 
prohibited by rules, procedures, guidelines or regulations.
    41. Conditions that could mitigate security concerns include:
    (a) The misuse was not recent or significant;
    (b) The conduct was unintentional or inadvertent;
    (c) The introduction or removal of media was authorized;
    (d) The misuse was an isolated event;
    (e) The misuse was followed by a prompt, good faith effort to 
correct the situation.

[66 FR 47067, Sept. 11, 2001]

Subpart B [Reserved]



PART 712_HUMAN RELIABILITY PROGRAM--Table of Contents



  Subpart A_Establishment of and Procedures for the Human Reliability 
                                 Program

                           General Provisions

Sec.
712.1 Purpose.
712.2 Applicability.
712.3 Definitions.

                               Procedures

712.10 Designation of HRP positions.
712.11 General requirements for HRP certification.
712.12 HRP implementation.
712.13 Supervisory review.
712.14 Medical assessment.
712.15 Management evaluation.
712.16 DOE security review.
712.17 Instructional requirements.
712.18 Transferring HRP certification.
712.19 Removal from HRP.
712.20 Request for reconsideration or certification review hearing.
712.21 Office of Hearings and Appeals.
712.22 Hearing officer's report and recommendation.
712.23 Final decision by DOE Deputy Secretary.

[[Page 376]]

                       Subpart B_Medical Standards

712.30 Applicability.
712.31 Purpose.
712.32 Designated Physician.
712.33 Designated Psychologist.
712.34 Site Occupational Medical Director.
712.35 Director, Office of Health and Safety.
712.36 Medical assessment process.
712.37 Evaluation for hallucinogen use.
712.38 Maintenance of medical records.

    Authority: 42 U.S.C. 2165; 42 U.S.C. 2201; 42 U.S.C. 5814-5815; 42 
U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.; E.O. 10450, 3 CFR 1949-1953 
Comp., p. 936, as amended; E.O. 10865, 3 CFR 1959-1963 Comp., p. 398, as 
amended; 3 CFR Chap. IV.

    Source: 69 FR 3223, Jan. 23, 2004, unless otherwise noted.



  Subpart A_Establishment of and Procedures for the Human Reliability 
                                 Program

                           General Provisions



Sec. 712.1  Purpose.

    This part establishes the policies and procedures for a Human 
Reliability Program (HRP) in the Department of Energy (DOE), including 
the National Nuclear Security Administration (NNSA). The HRP is a 
security and safety reliability program designed to ensure that 
individuals who occupy positions affording access to certain materials, 
nuclear explosive devices, facilities, and programs meet the highest 
standards of reliability and physical and mental suitability. This 
objective is accomplished under this part through a system of continuous 
evaluation that identifies individuals whose judgment and reliability 
may be impaired by physical or mental/personality disorders, alcohol 
abuse, use of illegal drugs or the abuse of legal drugs or other 
substances, or any other condition or circumstance that may be of a 
security or safety concern.



Sec. 712.2  Applicability.

    The HRP applies to all applicants for, or current employees of DOE 
or a DOE contractor or subcontractor in a position defined or designated 
under Sec. 712.10 of this subpart as an HRP position. Individuals 
currently in a Personnel Assurance Program or Personnel Security 
Assurance Program position will be grandfathered into the HRP.



Sec. 712.3  Definitions.

    The following definitions are used in this part:
    Accelerated Access Authorization Program means the DOE program for 
granting interim access to classified matter and special nuclear 
material based on a drug test, a National Agency Check, a psychological 
assessment, a counterintelligence-scope polygraph examination in 
accordance with 10 CFR part 709, and a review of the applicant's 
completed ``Questionnaire for National Security Positions'' (Standard 
Form 86).
    Access means:
    (1) A situation that may provide an individual proximity to or 
control over Category I special nuclear material (SNM); or
    (2) The proximity to a nuclear explosive and/or Category I SNM that 
allows the opportunity to divert, steal, tamper with, and/or damage the 
nuclear explosive or material in spite of any controls that have been 
established to prevent such unauthorized actions.
    Alcohol means the intoxicating agent in beverage alcohol, ethyl 
alcohol, or other low molecular weight alcohol.
    Alcohol abuse means consumption of any beverage, mixture, or 
preparation, including any medication containing alcohol that results in 
impaired social or occupational functioning.
    Alcohol concentration means the alcohol in a volume of breath 
expressed in terms of grams of alcohol per 210 liters of breath as 
indicated by a breath test.
    Alcohol use disorder means a maladaptive pattern in which a person's 
intake of alcohol is great enough to damage or adversely affect physical 
or mental health or personal, social, or occupational function; or when 
alcohol has become a prerequisite to normal function.
    Certification means the formal action the HRP certifying official 
takes that permits an individual to perform HRP duties after it is 
determined that the individual meets the requirements for certification 
under this part.
    Contractor means subcontractors at all tiers and any industrial, 
educational, commercial, or other entity,

[[Page 377]]

grantee, or licensee, including an employee that has executed an 
agreement with the Federal government for the purpose of performing 
under a contract, license, or other arrangement.
    Designated Physician means a licensed doctor of medicine or 
osteopathy who has been nominated by the Site Occupational Medical 
Director (SOMD) and approved by the Manager or designee, with the 
concurrence of the Director, Office of Health and Safety, to provide 
professional expertise in occupational medicine for the HRP.
    Designated Psychologist means a licensed Ph.D., or Psy.D., in 
clinical psychology who has been nominated by the SOMD and approved by 
the Manager or designee, with the concurrence of the Director, Office of 
Health and Safety, to provide professional expertise in the area of 
psychological assessment for the HRP.
    Diagnostic and Statistical Manual of Mental Disorders means the 
current version of the American Psychiatric Association's manual 
containing definitions of psychiatric terms and diagnostic criteria of 
mental disorders.
    Director, Office of Health and Safety means the DOE individual with 
responsibility for policy and quality assurance for DOE occupational 
medical programs.
    Drug abuse means use of an illegal drug or misuse of legal drugs.
    Evidential-grade breath alcohol device means a device that conforms 
to the model standards for an evidential breath-testing device as listed 
on the Conforming Products List of Evidential Breath Measurement Devices 
published by the National Highway Traffic Safety Administration (NHTSA).
    Flashback means an involuntary, spontaneous recurrence of some 
aspect of a hallucinatory experience or perceptual distortion that 
occurs long after taking the hallucinogen that produced the original 
effect; also referred to as hallucinogen persisting perception disorder.
    Hallucinogen means a drug or substance that produces hallucinations, 
distortions in perception of sights and sounds, and disturbances in 
emotion, judgment, and memory.
    HRP candidate means an individual being considered for assignment to 
an HRP position.
    HRP-certified individual means an individual who has successfully 
completed the HRP requirements.
    HRP certifying official means the Manager or the Manager's designee 
who certifies, recertifies, temporarily removes, reviews the 
circumstances of an individual's removal from an HRP position, and 
directs reinstatement.
    HRP management official means an individual designated by the DOE or 
a DOE contractor, as appropriate, who has programmatic responsibility 
for HRP positions.
    Illegal drug means a controlled substance, as specified in Schedules 
I through V of the Controlled Substances Act, 21 U.S.C. 811 and 812; the 
term does not apply to the use of a controlled substance in accordance 
with the terms of a valid prescription, or other uses authorized by 
Federal law.
    Impaired or impairment means a decrease in functional capacity of a 
person that is caused by a physical, mental, emotional, substance abuse, 
or behavioral disorder.
    Incident means an unplanned, undesired event that interrupts the 
completion of an activity and that may include property damage or 
injury.
    Job task analysis means the formal process of defining the 
requirements of a position and identifying the knowledge, skills, and 
abilities necessary to effectively perform the duties of the position.
    Manager means the Manager of the Chicago, Idaho, Oak Ridge, 
Richland, and Savannah River Operations Offices; Manager of the 
Pittsburgh Naval Reactors Office and the Schenectady Naval Reactors 
Office; Site Office Managers for Livermore, Los Alamos, Sandia, Y-12, 
Nevada, Pantex, Kansas City, and Savannah River; Director of the Service 
Center, Albuquerque; Assistant Deputy Administrator for the Office of 
Secure Transportation, Albuquerque; and for the Washington, DC area, the 
Deputy Chief for Operations, Office of Health, Safety and Security.
    Material access area means a type of Security Area that is 
authorized to

[[Page 378]]

contain a Category I quantity of special nuclear material and that has 
specifically defined physical barriers, is located within a Protected 
Area, and is subject to specific access controls.
    Medical assessment means an evaluation of an HRP candidate and HRP-
certified individual's present health status and health risk factors by 
means of:
    (1) Medical history review;
    (2) Job task analysis;
    (3) Physical examination;
    (4) Appropriate laboratory tests and measurements; and
    (5) Appropriate psychological and psychiatric evaluations.
    Nuclear explosive means an assembly of fissionable and/or fusionable 
materials and main charge high explosive parts or propellants that is 
capable of producing a nuclear detonation.
    Nuclear explosive duties means work assignments that allow custody 
of a nuclear explosive or access to a nuclear explosive device or area.
    Occurrence means any event or incident that is a deviation from the 
planned or expected behavior or course of events in connection with any 
DOE or DOE-controlled operation if the deviation has environmental, 
public health and safety, or national security protection significance, 
including (but not limited to) incidents involving:
    (1) Injury or fatality to any person involving actions of a DOE 
employee or contractor employee;
    (2) An explosion, fire, spread of radioactive material, personal 
injury or death, or damage to property that involves nuclear explosives 
under DOE jurisdiction;
    (3) Accidental release of pollutants that results from, or could 
result in, a significant effect on the public or environment; or
    (4) Accidental release of radioactive material above regulatory 
limits.
    Psychological assessment or test means a scientifically validated 
instrument designed to detect psychiatric, personality, and behavioral 
tendencies that would indicate problems with reliability and judgment.
    Random alcohol testing means the unscheduled, unannounced alcohol 
testing of randomly selected employees by a process designed to ensure 
that selections are made in a nondiscriminatory manner.
    Random drug testing means the unscheduled, unannounced drug testing 
of randomly selected employees by a process designed to ensure that 
selections are made in a nondiscriminatory manner.
    Reasonable suspicion means a suspicion based on an articulable 
belief that an individual uses illegal drugs or is under the influence 
of alcohol, drawn from reasonable inferences from particular facts, as 
detailed further in part 707 of this title.
    Recertification means the formal action the HRP certifying official 
takes annually, not to exceed 12 months, that permits an employee to 
remain in the HRP and perform HRP duties.
    Reinstatement means the action the HRP certifying official takes 
after it has been determined that an employee who has been temporarily 
removed from the HRP meets the certification requirements of this part 
and can be returned to HRP duties.
    Reliability means an individual's ability to adhere to security and 
safety rules and regulations.
    Safety concern means any condition, practice, or violation that 
causes a substantial probability of physical harm, property loss, and/or 
environmental impact.
    Security concern means the presence of information regarding an 
individual applying for or holding an HRP position that may be 
considered derogatory under the criteria listed in 10 CFR part 710, 
subpart A.
    Semi-structured interview means an interview by a Designated 
Psychologist, or a psychologist under his or her supervision, who has 
the latitude to vary the focus and content of the questions depending on 
the interviewee's responses.
    Site Occupational Medical Director (SOMD) means the physician 
responsible for the overall direction and operation of the occupational 
medical program at a particular site.
    Supervisor means the individual who has oversight and organizational 
responsibility for a person holding an HRP position, and whose duties 
include evaluating the behavior and performance of the HRP-certified 
individual.

[[Page 379]]

    Transfer means an HRP-certified individual moving from one site to 
another site.
    Unacceptable damage means an incident that could result in a nuclear 
detonation; high-explosive detonation or deflagration from a nuclear 
explosive; the diversion, misuse, or removal of Category I special 
nuclear material; or an interruption of nuclear explosive operations 
with a significant impact on national security.
    Unsafe practice means either a human action departing from 
prescribed hazard controls or job procedures or practices, or an action 
causing a person unnecessary exposure to a hazard.

[69 FR 3223, Jan. 23, 2004, as amended at 71 FR 68731, Nov. 28, 2006]

                               Procedures



Sec. 712.10  Designation of HRP positions.

    (a) HRP certification is required for each individual assigned to, 
or applying for, a position that:
    (1) Affords access to Category I SNM or has responsibility for 
transportation or protection of Category I quantities of SNM;
    (2) Involves nuclear explosive duties or has responsibility for 
working with, protecting, or transporting nuclear explosives, nuclear 
devices, or selected components;
    (3) Affords access to information concerning vulnerabilities in 
protective systems when transporting nuclear explosives, nuclear 
devices, selected components, or Category I quantities of SNM; or
    (4) Is not included in paragraphs (a)(1) through (3) of this section 
but affords the potential to significantly impact national security or 
cause unacceptable damage and is approved pursuant to paragraph (b) of 
this section.
    (b) The Manager or the HRP management official may nominate 
positions for the HRP that are not specified in paragraphs (a)(1) 
through (3) of this section or that have not previously been designated 
HRP positions. All such nominations must be submitted to and approved by 
either the NNSA Administrator, his or her designee, the Chief Health, 
Safety and Security Officer, or the appropriate Lead Program Secretarial 
Officer, or his or her designee.
    (c) Before nominating a position for designation as an HRP position, 
the Manager or the HRP management official must analyze the risks the 
position poses for the particular operational program. If the analysis 
shows that more restrictive physical, administrative, or other controls 
could be implemented that would prevent the position from being 
designated an HRP position, those controls will be implemented, if 
practicable.
    (d) Nothing in this part prohibits contractors from establishing 
stricter employment standards for individuals who are nominated to DOE 
for certification or recertification in the HRP.

[69 FR 3223, Jan. 23, 2004, as amended at 71 FR 68731, Nov. 28, 2006]



Sec. 712.11  General requirements for HRP certification.

    (a) The following certification requirements apply to each 
individual applying for or in an HRP position:
    (1) A DOE ``Q'' access authorization based on a background 
investigation, except for security police officers who have been granted 
an interim ``Q'' through the Accelerated Access Authorization Program;
    (2) The annual submission of SF-86, OMB Control No. 3206-0007, 
Questionnaire for National Security Positions, Part 2, and an annual 
review of the personnel security file;
    (3) Signed releases, acknowledgments, and waivers to participate in 
the HRP on forms provided by DOE;
    (4) Completion of initial and annual HRP instruction as provided in 
Sec. 712.17;
    (5) Successful completion of an initial and annual supervisory 
review, medical assessment, management evaluation, and a DOE personnel 
security review for certification and recertification in accordance with 
this part. With respect to the DOE personnel security review:
    (i) If the DOE personnel security review is not completed within the 
12-month time period and the individual's access authorization is not 
suspended, the HRP certification form shall be forwarded to the HRP 
certifying official

[[Page 380]]

for recertification or temporary removal, contingent upon a favorable 
security review;
    (ii) If a final determination has been made by DOE personnel 
security that is favorable, this information shall be forwarded to the 
HRP certifying official and so noted on the certification form; or
    (iii) If the final determination has been made by DOE personnel 
security that the access authorization has been suspended, the 
individual shall be immediately removed from the HRP position, the HRP 
certifying official notified, the information noted on the certification 
form, and the procedures outlined in 10 CFR part 710, subpart A, shall 
be followed.
    (6) No use of any hallucinogen in the preceding five years and no 
experience of flashback resulting from the use of any hallucinogen more 
than five years before applying for certification or recertification;
    (7) A psychological evaluation consisting of a generally accepted 
psychological assessment (test) and a semi-structured interview;
    (8) An initial drug test and random drug tests for the use of 
illegal drugs at least once each 12 months in accordance with DOE 
policies implementing Executive Order 12564 or the relevant provisions 
of 10 CFR part 707 for DOE contractors, and DOE Order 3792.3, ``Drug-
Free Federal Workplace Testing Implementation Program,'' for DOE 
employees;
    (9) An initial alcohol test and random alcohol tests at least once 
each 12 months using an evidential-grade breath alcohol device, as 
listed without asterisks on the Conforming Products List of Evidential 
Breath Measurement Devices published by the NHTSA (49 CFR part 40); and
    (10) Successful completion of a counterintelligence evaluation, 
which includes a counterintelligence-scope polygraph examination in 
accordance with DOE's Polygraph Examination Regulation, 10 CFR part 709, 
and any subsequent revisions to that regulation.
    (b) Each HRP candidate must be certified in the HRP before being 
assigned to HRP duties and must be recertified annually, not to exceed 
12 months between recertifications. For certification:
    (1) Individuals in newly identified HRP positions must immediately 
sign the releases, acknowledgments, and waivers to participate in the 
HRP and complete initial instruction on the importance of security, 
safety, reliability, and suitability. If these requirements are not met, 
the individual must be removed from the HRP position.
    (2) All remaining HRP requirements listed in paragraph (a) of this 
section must be completed in an expedited manner.
    (c) Alcohol consumption is prohibited within an eight-hour period 
preceding scheduled work for individuals performing nuclear explosive 
duties and for individuals in specific positions designated by either 
the Manager, the NNSA Administrator, his or her designee, or the 
appropriate Lead Program Secretarial Officer, or his or her designee.
    (d) Individuals reporting for unscheduled nuclear explosive duties 
and those specific positions designated by either the Manager, the NNSA 
Administrator or his or her designee, or the appropriate Lead Program 
Secretarial Officer, or his or her designee, will be asked prior to 
performing any type of work if they have consumed alcohol within the 
preceding eight-hour period. If they answer ``no,'' they may perform 
their assigned duties but still may be tested.
    (e) HRP-certified individuals may be tested for alcohol and/or drugs 
in accordance with Sec. 712.15(b), (c), (d) and (e) if they are 
involved in an incident, unsafe practice, or an occurrence, or if there 
is reasonable suspicion that they may be impaired.



Sec. 712.12  HRP implementation.

    (a) The implementation of the HRP is the responsibility of the 
appropriate Manager or his or her designee. The Manager or designee must 
fully implement the HRP by April 22, 2004.
    (b) The HRP Management Official must:
    (1) Prepare an initial HRP implementation plan and submit it by 
March 23, 2004, to the applicable Manager for review and site approval. 
The implementation plan must:

[[Page 381]]

    (i) Be reviewed and updated every two years;
    (ii) Include the four annual components of the HRP process: 
supervisory review, medical assessment, management evaluation (which 
includes random drug and alcohol testing), and a DOE personnel security 
determination; and
    (iii) Include the HRP instruction and education component described 
in Sec. 712.17 of this part.
    (2) Approve the temporary removal and the reinstatement after 
temporary removal of an HRP-certified individual if the removal was 
based on a nonsecurity concern and the HRP-certified individual 
continues to meet the certification requirements and notify the HRP 
certifying official of these actions.
    (c) The Deputy Administrator for Defense Programs, NNSA must:
    (1) Provide advice and assistance to the Chief Health, Safety and 
Security Officer, regarding policies, standards, and guidance for all 
nuclear explosive duty requirements; and
    (2) Be responsible for implementation of all nuclear explosive duty 
safety requirements.
    (d) The DOE Deputy Secretary, based on a recommendation of the Chief 
Health, Safety and Security Officer, makes the final decision for any 
appeal of denial or revocation of certification or recertification from 
HRP.
    (e) The Director, Office of Policy, is responsible for HRP policy 
and must:
    (1) Ensure consistency of the HRP throughout the DOE and NNSA;
    (2) Review and comment on all HRP implementation plans to ensure 
consistency with policy; and
    (3) Provide policies and guidance, including instructional 
materials, to NNSA and non-NNSA field elements concerning the HRP, as 
appropriate.
    (f) The Manager must:
    (1) Review and approve the HRP implementation plan for sites/
facilities under their cognizance and forward the plan to the Director, 
Office of Policy; and
    (2) Ensure that the HRP is implemented at the sites/facilities under 
their cognizance.
    (g) The HRP certifying official must:
    (1) Approve placement, certification, reinstatement, and 
recertification of individuals into HRP positions; for unresolved 
temporary removals, follow the process in Sec. 712.19(c)(5);
    (2) Ensure that instructional requirements are implemented;
    (3) Immediately notify (for the purpose of limiting access) the 
appropriate HRP management official of a personnel security action that 
results in the suspension of access authorization; and
    (4) Ensure that the supervisory review, medical assessment, and 
management evaluation, including drug and alcohol testing, are conducted 
on an annual basis (not to exceed 12 months).
    (h) Individuals assigned to HRP duties must:
    (1) Execute HRP releases, acknowledgments, and waivers to facilitate 
the collection and dissemination of information, the performance of drug 
and alcohol testing, and medical examinations;
    (2) Notify the Designated Physician, the Designated Psychologist, or 
the SOMD immediately of a physical or mental condition requiring 
medication or treatment;
    (3) Provide full, frank, and truthful answers to relevant and 
material questions, and when requested, furnish, or authorize others to 
furnish, information that DOE deems pertinent to reach a decision 
regarding HRP certification or recertification;
    (4) Report any observed or reported behavior or condition of another 
HRP-certified individual that could indicate a reliability concern, 
including those behaviors and conditions listed in Sec. 712.13(c), to a 
supervisor, the Designated Physician, the Designated Psychologist, the 
SOMD, or the HRP management official; and
    (5) Report to a supervisor, the Designated Physician, the Designated 
Psychologist, the SOMD, or the HRP management official, any behavior or 
condition, including those listed in Sec. 712.13(c), that may affect 
his or her ability to perform HRP duties.

[69 FR 3223, Jan. 23, 2004, as amended at 71 FR 68731, Nov. 28, 2006]

[[Page 382]]



Sec. 712.13  Supervisory review.

    (a) The supervisor must ensure that each HRP candidate and each 
individual occupying an HRP position but not yet HRP certified, executes 
the appropriate HRP releases, acknowledgments, and waivers. If these 
documents are not executed:
    (1) The request for HRP certification may not be further processed 
until these requirements are completed; and
    (2) The individual is immediately removed from the position.
    (b) Each supervisor of HRP-certified personnel must conduct an 
annual review of each HRP-certified individual during which the 
supervisor must evaluate information (including security concerns) 
relevant to the individual's suitability to perform HRP tasks in a 
reliable and safe manner.
    (c) The supervisor must report any concerns resulting from his or 
her review to the appropriate HRP management official. Types of behavior 
and conditions that would indicate a concern include, but are not 
limited to:
    (1) Psychological or physical disorders that impair performance of 
assigned duties;
    (2) Conduct that warrants referral for a criminal investigation or 
results in arrest or conviction;
    (3) Indications of deceitful or delinquent behavior;
    (4) Attempted or threatened destruction of property or life;
    (5) Suicidal tendencies or attempted suicide;
    (6) Use of illegal drugs or the abuse of legal drugs or other 
substances;
    (7) Alcohol use disorders;
    (8) Recurring financial irresponsibility;
    (9) Irresponsibility in performing assigned duties;
    (10) Inability to deal with stress, or the appearance of being under 
unusual stress;
    (11) Failure to comply with work directives, hostility or aggression 
toward fellow workers or authority, uncontrolled anger, violation of 
safety or security procedures, or repeated absenteeism; and
    (12) Significant behavioral changes, moodiness, depression, or other 
evidence of loss of emotional control.
    (d) The supervisor must immediately remove an HRP-certified 
individual from HRP duties, pursuant to Sec. 712.19, and temporarily 
reassign the individual to a non-HRP position if the supervisor believes 
the individual has demonstrated a security or safety concern that 
warrants such removal. If temporary removal is based on a security 
concern, the HRP management official must immediately notify the 
applicable DOE personnel security office and the HRP certifying 
official.
    (1) Based on the DOE personnel security office recommendation, the 
HRP certifying official will make the final decision about whether to 
reinstate an individual into an HRP position.
    (2) If temporary removal is based on a medical concern, the 
Designated Physician, the Designated Psychologist, or the SOMD must 
immediately recommend the medical removal or medical restriction in 
writing to the appropriate HRP management official, who will make the 
final determination in temporary removal actions and immediately notify 
the appropriate HRP certifying official.
    (e) The supervisor must immediately remove from HRP duties any 
Federal employee who does not obtain HRP recertification. The supervisor 
may reassign the individual or realign the individual's current duties. 
If these actions are not feasible, the supervisor must contact the 
appropriate personnel office for guidance.
    (f) The supervisor who has been informed by the breath alcohol 
technician that an HRP-certified individual's confirmatory breath 
alcohol test result is at or above an alcohol concentration of 0.02 
percent shall send the individual home and not allow that individual to 
perform HRP duties for 24 hours, and inform the HRP management official 
of this action.



Sec. 712.14  Medical assessment.

    (a) Purpose. The HRP medical assessment is performed to evaluate 
whether an HRP candidate or an HRP-certified individual:
    (1) Represents a security concern; or
    (2) Has a condition that may prevent the individual from performing 
HRP duties in a reliable and safe manner.

[[Page 383]]

    (b) When performed. (1) The medical assessment is performed 
initially on HRP candidates and individuals occupying HRP positions who 
have not yet received HRP certification. The medical assessment is 
performed annually for HRP-certified individuals, or more often as 
required by the SOMD.
    (2) The Designated Physician and other examiners working under the 
direction of the Designated Physician also will conduct an evaluation:
    (i) If an HRP-certified individual requests an evaluation (i.e., 
self-referral); or
    (ii) If an HRP-certified individual is referred by management for an 
evaluation.
    (c) Process. The Designated Physician, under the supervision of the 
SOMD, is responsible for the medical assessment of HRP candidates and 
HRP-certified individuals. In performing this responsibility, the 
Designated Physician or the SOMD must integrate the medical evaluations, 
available testing results, psychological evaluations, any psychiatric 
evaluations, a review of current legal drug use, and any other relevant 
information. This information is used to determine if a reliability, 
safety, or security concern exists and if the individual is medically 
qualified for his or her assigned duties. If a security concern is 
identified, the Designated Physician or SOMD must immediately notify the 
HRP management official, who notifies the applicable DOE personnel 
security office and appropriate HRP certifying official.
    (d) Evaluation. The Designated Physician, with the assistance of the 
Designated Psychologist, must determine the existence or nature of any 
of the following:
    (1) Physical or medical disabilities, such as a lack of visual 
acuity, defective color vision, impaired hearing, musculoskeletal 
deformities, and neuromuscular impairment;
    (2) Mental/personality disorders or behavioral problems, including 
alcohol and other substance use disorders, as described in the 
Diagnostic and Statistical Manual of Mental Disorders;
    (3) Use of illegal drugs or the abuse of legal drugs or other 
substances, as identified by self-reporting or by medical or 
psychological evaluation or testing;
    (4) Threat of suicide, homicide, or physical harm; or
    (5) Medical conditions such as cardiovascular disease, endocrine 
disease, cerebrovascular or other neurologic disease, or the use of 
drugs for the treatment of conditions that may adversely affect the 
judgment or ability of an individual to perform assigned duties in a 
reliable and safe manner.
    (e) Job task analysis. Before the initial or annual medical 
assessment and psychological evaluation, employers must provide, to both 
the Designated Physician and Designated Psychologist, a job task 
analysis for each HRP candidate or HRP-certified individual. Medical 
assessments and psychological evaluations may not be performed if a job 
task analysis has not been provided.
    (f) Psychological evaluations. Psychological evaluations must be 
conducted:
    (1) For initial HRP certification. This psychological evaluation 
consists of a psychological assessment (test), approved by the Director, 
Office of Health and Safety or his or her designee, and a semi-
structured interview.
    (2) For recertification. This psychological evaluation consists of a 
semi-structured interview. A psychological assessment (test) may also be 
conducted as warranted.
    (3) Every third year. The medical assessment for recertification 
must include a psychological assessment (test) approved by the Director, 
Office of Health and Safety or his or her designee. This requirement can 
be implemented over a three-year period for individuals who are 
currently in an HRP position.
    (4) When additional psychological or psychiatric evaluations are 
required by the SOMD to resolve any concerns.
    (g) Return to work after sick leave. HRP-certified individuals who 
have been on sick leave for five or more consecutive days, or an 
equivalent time period for those individuals on an alternative work 
schedule, must report in person to the Designated Physician, the 
Designated Psychologist, or the SOMD before being allowed to return to 
normal duties. The Designated Physician, the Designated Psychologist, or

[[Page 384]]

the SOMD must provide a written recommendation to the appropriate HRP 
supervisor regarding the individual's return to work. An HRP-certified 
individual also may be required to report to the Designated Physician, 
the Designated Psychologist, or the SOMD for written recommendation to 
return to normal duties after any period of sick leave.
    (h) Temporary removal or restrictions. The Designated Physician, the 
Designated Psychologist, or the SOMD may recommend temporary removal of 
an individual from an HRP position or restrictions on an individual's 
work in an HRP position if a medical condition or circumstance develops 
that affects the individual's ability to perform assigned job duties. 
The Designated Physician, the Designated Psychologist, or the SOMD must 
immediately recommend medical removal or medical restrictions in writing 
to the appropriate HRP management official. If the HRP management 
official concurs, he or she will then notify the appropriate HRP 
certifying official. To reinstate or remove such restrictions, the 
Designated Physician, the Designated Psychologist, or the SOMD must make 
written recommendation to the HRP management official for concurrence. 
The HRP management official will then notify the appropriate HRP 
certifying official.
    (i) Medical evaluation after rehabilitation. (1) Individuals who 
request reinstatement in the HRP following rehabilitative treatment for 
alcohol use disorder, use of illegal drugs, or the abuse of legal drugs 
or other substances, must undergo an evaluation, as prescribed by the 
SOMD, to ensure continued rehabilitation and adequate capability to 
perform their job duties.
    (2) The HRP certifying official may reinstate HRP certification of 
an individual who successfully completes an SOMD-approved drug or 
alcohol rehabilitation program. Recertification is based on the SOMD's 
follow-up evaluation and recommendation. The individual is also subject 
to unannounced follow-up tests for illegal drugs or alcohol and relevant 
counseling for three years.
    (j) Medication and treatment. HRP-certified individuals are required 
to immediately report to the Designated Physician, the Designated 
Psychologist, or the SOMD any physical or mental condition requiring 
medication or treatment. The Designated Physician, the Designated 
Psychologist, or the SOMD determines if temporary removal of the 
individual from HRP duties is required and follows the procedures 
pursuant to Sec. 712.14(h).

[69 FR 3223, Jan. 23, 2004, as amended at 71 FR 68731, Nov. 28, 2006]



Sec. 712.15  Management evaluation.

    (a) Evaluation components. An evaluation by the HRP management 
official is required before an individual can be considered for initial 
certification or recertification in the HRP. This evaluation must be 
based on a careful review of the results of the supervisory review, 
medical assessment, and drug and alcohol testing. If a safety concern is 
identified, the HRP management official must require the supervisor to 
temporarily reassign the individual to non-HRP duties and forward this 
information to the HRP certifying official. If the management evaluation 
reveals a security concern, the HRP management official must notify the 
applicable DOE personnel security office.
    (b) Drug testing. All HRP candidates and HRP-certified individuals 
are subject to testing for the use of illegal drugs, as required by this 
part. Testing must be conducted in accordance with 10 CFR part 707, the 
workplace substance abuse program for DOE contractor employees, and DOE 
Order 3792.3, ``Drug-Free Federal Workplace Testing Implementation 
Program,'' for DOE employees. The program must include an initial drug 
test, random drug tests at least once every 12 months from the previous 
test, and tests of HRP-certified individuals if they are involved in an 
incident, unsafe practice, occurrence, or based on reasonable suspicion. 
Failure to appear for unannounced testing within two hours of 
notification constitutes a refusal to submit to a test. Sites may 
establish a shorter time period between notification and testing but may 
not exceed the two-hour requirement. An HRP-certified individual who, 
based on a drug test, has been determined to use

[[Page 385]]

illegal drugs must immediately be removed from HRP duties, and DOE 
personnel security must be notified immediately.
    (c) Alcohol testing. All HRP candidates and HRP-certified 
individuals are subject to testing for the use of alcohol, as required 
by this part. The alcohol testing program must include, as a minimum, an 
initial alcohol test prior to performing HRP duties and random alcohol 
tests at least once every 12 months from the previous test, and tests of 
HRP-certified individuals if they are involved in an incident, unsafe 
practice, occurrence, or based on reasonable suspicion. An HRP-certified 
individual who has been determined to have an alcohol concentration of 
0.02 percent or greater shall be sent home and not allowed to perform 
HRP duties for 24 hours.
    (1) Breath alcohol testing must be conducted by a certified breath 
alcohol technician and conform to the DOT procedures (49 CFR part 40, 
Procedures for Transportation Workplace Drug and Alcohol Testing 
Programs, subparts J through N) for use of an evidential-grade breath 
analysis device approved for 0.02/0.04 cutoff levels, which conforms to 
the DOT model specifications and the most recent ``Conforming Products 
List'' issued by NHTSA.
    (2) An individual required to undergo DOT alcohol testing is subject 
to the regulations of the DOT. If such an individual's blood alcohol 
level exceeds DOT standards, the individual's employer may take 
appropriate disciplinary action.
    (3) The following constitutes a refusal to submit to a test and 
shall be considered as a positive alcohol concentration test of 0.02 
percent, which requires the individual be sent home and not allowed to 
perform HRP duties for 24 hours:
    (i) Failure to appear for unannounced testing within two hours of 
notification (or established shorter time for the specific site);
    (ii) Failure to provide an adequate volume of breath in two attempts 
without a valid medical excuse; and
    (iii) Engaging in conduct that clearly obstructs the testing 
process, including failure to cooperate with reasonable instructions 
provided by the testing technician.
    (d) Occurrence testing. (1) When an HRP-certified individual is 
involved in, or associated with, an occurrence requiring immediate 
reporting to the DOE, the following procedures must be implemented:
    (i) Testing for the use of illegal drugs in accordance with the 
provisions of the DOE policies implementing Executive Order 12564, and 
10 CFR part 707 or DOE Order 3792.3, which establish workplace substance 
abuse programs for contractor and DOE employees, respectively.
    (ii) Testing for use of alcohol in accordance with this section.
    (2) Testing must be performed as soon as possible after an 
occurrence that requires immediate notification or reporting.
    (3) The supervisor must remove an HRP-certified individual from HRP 
duties if the individual refuses to undergo the testing required by this 
section.
    (e) Testing for reasonable suspicion. (1) If the behavior of an 
individual in an HRP position creates the basis for reasonable suspicion 
of the use of an illegal drug or alcohol, that individual must be tested 
if two or more supervisory or management officials, at least one of whom 
is in the direct chain of supervision of the individual or is the 
Designated Physician, the Designated Psychologist, or the SOMD, agree 
that such testing is appropriate.
    (2) Reasonable suspicion must be based on an articulable belief, 
drawn from facts and reasonable inferences from those particular facts, 
that an HRP-certified individual is in possession of, or under the 
influence of, an illegal drug or alcohol. Such a belief may be based on, 
among other things:
    (i) Observable phenomena, such as direct observation of the use or 
possession of illegal drugs or alcohol, or the physical symptoms of 
being under the influence of drugs or alcohol;
    (ii) A pattern of abnormal conduct or erratic behavior;
    (iii) Information provided by a reliable and credible source that is 
independently corroborated; or
    (iv) Detection of alcohol odor on the breath.

[[Page 386]]

    (f) Counterintelligence Evaluation. HRP candidates and, when 
selected, HRP-certified individuals, must submit to and successfully 
complete a counterintelligence evaluation, which includes a polygraph 
examination in accordance with 10 CFR part 709, Polygraph Examination 
Regulations and any subsequent revisions to that regulation.



Sec. 712.16  DOE security review.

    (a) A personnel security specialist will perform a personnel 
security file review of an HRP candidate and HRP-certified individual 
upon receiving the supervisory review, medical assessment, and 
management evaluation and recommendation.
    (b) If the personnel security file review is favorable, this 
information must be forwarded to the HRP certifying official. If the 
review reveals a security concern, or if a security concern is 
identified during another component of the HRP process, the HRP 
certifying official must be notified and the security concern evaluated 
in accordance with the criteria in 10 CFR part 710, subpart A. All 
security concerns must be resolved according to procedures outlined in 
10 CFR part 710, subpart A, rather than through the procedures in this 
part.
    (c) Any mental/personality disorder or behavioral issues found in a 
personnel security file, which could impact an HRP candidate or HRP-
certified individual's ability to perform HRP duties, may be provided in 
writing to the SOMD, Designated Physician, and Designated Psychologist 
previously identified for receipt of this information. Medical personnel 
may not share any information obtained from the personnel security file 
with anyone who is not an HRP certifying official.



Sec. 712.17  Instructional requirements.

    (a) HRP management officials at each DOE site or facility with HRP 
positions must establish an initial and annual HRP instruction and 
education program. The program must provide:
    (1) HRP candidates, HRP-certified individuals, supervisors, and 
managers, and supervisors and managers responsible for HRP positions 
with the knowledge described in paragraph (b)(1) of this section; and
    (2) For all HRP medical personnel, a detailed explanation of HRP 
duties and responsibilities.
    (b) The following program elements must be included in initial and 
annual instruction. The elements may be tailored to accommodate group 
differences and refresher training needs:
    (1) The objectives of the HRP and the role and responsibilities of 
each individual in the HRP to include recognizing and responding to 
behavioral change and aberrant or unusual behavior that may result in a 
risk to national security or nuclear explosive safety; recognizing and 
reporting security concerns and prescription drug use; and an 
explanation of return-to-work requirements and continuous evaluation of 
HRP participants; and
    (2) For those who have nuclear explosive responsibilities, a 
detailed explanation of duties and safety requirements.



Sec. 712.18  Transferring HRP certification.

    (a) For HRP certification to be transferred, the individual must 
currently be certified in the HRP.
    (b) Transferring the HRP certification from one site to another 
requires the following before the individual is allowed to perform HRP 
duties at the new site:
    (1) Verify that the individual is currently certified in the HRP and 
is transferring into a designated HRP position;
    (2) Incorporate the individual into the new site's alcohol and drug-
testing program;
    (3) Ensure that the 12-month time period for HRP requirements that 
was established at the prior site is not exceeded; and
    (4) Provide site-specific instruction.
    (c) Temporary assignment to HRP positions at other sites requires 
verification that the individual is currently enrolled in the HRP and 
has completed all site-specific instruction. The individual is required 
to return to the site that maintains his or her HRP certification for 
recertification.



Sec. 712.19  Removal from HRP.

    (a) Immediate removal. A supervisor who has a reasonable belief that 
an

[[Page 387]]

HRP-certified individual is not reliable, based on either a safety or 
security concern, must immediately remove that individual from HRP 
duties pending a determination of the individual's reliability. A 
supervisor also must immediately remove an individual from HRP duties 
when requested to do so by the HRP certifying official. The supervisor 
must, at a minimum:
    (1) Require the individual to stop performing HRP duties;
    (2) Take action to ensure the individual is denied both escorted and 
unescorted access to the material access areas; and
    (3) Provide, within 24 hours, to the individual and the HRP 
management official, a written reason for these actions.
    (b) The temporary removal of an HRP-certified individual from HRP 
duties pending a determination of the individual's reliability is an 
interim, precautionary action and does not constitute a determination 
that the individual is not fit to perform his or her required duties. 
Removal is not, in itself, cause for loss of pay, benefits, or other 
changes in employment status.
    (c) Temporary removal. (1) If an HRP management official receives a 
supervisor's written notice of the immediate removal of an HRP-certified 
individual, that official must direct the temporary removal of the 
individual pending an evaluation and determination of the individual's 
reliability.
    (2) If removal is based on a security concern, the HRP management 
official must notify the HRP certifying official and the applicable DOE 
personnel security office. The security concern will be resolved under 
the criteria and procedures in 10 CFR part 710, subpart A.
    (3) If removal is based on a concern that is not security related, 
the HRP management official must conduct an evaluation of the 
circumstances or information that led the supervisor to remove the 
individual from HRP duties. The HRP management official must prepare a 
written report of the evaluation that includes a determination of the 
individual's reliability for continuing HRP certification.
    (4) If the HRP management official determines that an individual who 
has been temporarily removed continues to meet the requirements for 
certification, the HRP management official must:
    (i) Notify the individual's supervisor of the determination and 
direct that the individual be allowed to return to HRP duties;
    (ii) Notify the individual; and
    (iii) Notify the HRP certifying official.
    (5) If the HRP management official determines that an individual who 
has been temporarily removed does not meet the HRP requirements for 
certification, the HRP management official must forward the written 
report to the HRP certifying official. If the HRP certifying official is 
not the Manager, the HRP certifying official must review the written 
report and take one of the following actions:
    (i) Direct that the individual be reinstated and provide written 
explanation of the reasons and factual bases for the action;
    (ii) Direct continuation of the temporary removal pending completion 
of specified actions (e.g., medical assessment, treatment) to resolve 
the concerns about the individual's reliability; or
    (iii) Recommend to the Manager the revocation of the individual's 
certification and provide written explanation of the reasons and factual 
bases for the decision.
    (d) The Manager, on receiving the HRP management official's written 
report and the HRP certifying official's recommendation (if any), must 
take one of the following actions:
    (1) Direct reinstatement of the individual and provide written 
explanation of the reasons and factual bases for the action;
    (2) Direct revocation of the individual's HRP certification; or
    (3) Direct continuation of the temporary removal pending completion 
of specified actions (e.g., medical assessment, treatment) to resolve 
the concerns about the individual's reliability.
    (e) If the action is revocation, the Manager must provide the 
individual a copy of the HRP management official's report. The Manager 
may withhold such a report, or portions thereof, to the extent that he 
or she determines that the report, or portions thereof,

[[Page 388]]

may be exempt from access by the employee under the Privacy Act or the 
Freedom of Information Act.
    (f) If an individual is directed by the Manager to take specified 
actions to resolve HRP concerns, he or she must be reevaluated by the 
HRP management official and HRP certifying official after those actions 
have been completed. After considering the HRP management and HRP 
certifying officials' report and recommendation, the Manager must direct 
either:
    (1) Reinstatement of the individual; or
    (2) Revocation of the individual's HRP certification.
    (g) Notification of Manager's initial decision. The Manager must 
send by certified mail (return receipt requested) a written decision, 
including rationale, to the HRP-certified individual whose certification 
is revoked. The Manager's decision must be accompanied by notification 
to the individual, in writing, of the procedures pertaining to 
reconsideration or a hearing on the Manager's decision.



Sec. 712.20  Request for reconsideration or certification review hearing.

    (a) An HRP-certified individual who receives notification of the 
Manager's decision to revoke his or her HRP certification may choose one 
of the following options:
    (1) Take no action;
    (2) Submit a written request to the Manager for reconsideration of 
the decision to revoke certification. The request must include the 
individual's response to the information that gave rise to the concern. 
The request must be sent by certified mail to the Manager within 20 
working days after the individual received notice of the Manager's 
decision; or
    (3) Submit a written request to the Manager for a certification 
review hearing. The request for a hearing must be sent by certified mail 
to the Manager within 20 working days after the individual receives 
notice of the Manager's decision.
    (b) If an individual requests reconsideration by the Manager but not 
a certification review hearing, the Manager must, within 20 working days 
after receipt of the individual's request, send by certified mail 
(return receipt requested) a final decision to the individual. This 
final decision about certification is based on the individual's response 
and other relevant information available to the Manager.
    (c) If an individual requests a certification review hearing, the 
Manager must forward the request to the Office of Hearings and Appeals.



Sec. 712.21  Office of Hearings and Appeals.

    (a) The certification review hearing is conducted by the Office of 
Hearings and Appeals.
    (b) The hearing officer must have a DOE ``Q'' access authorization 
when hearing cases involving HRP duties.
    (c) An individual who requests a certification review hearing has 
the right to appear personally before the hearing officer; to present 
evidence in his or her own behalf, through witnesses or by documents, or 
by both; and to be accompanied and represented at the hearing by counsel 
or any other person of the individual's choosing and at the individual's 
own expense.
    (d) In conducting the proceedings, the hearing officer must:
    (1) Receive all relevant and material information relating to the 
individual's fitness for HRP duties through witnesses or documentation;
    (2) Ensure that the individual is permitted to offer information in 
his or her behalf; to call, examine, and cross-examine witnesses and 
other persons who have made written or oral statements, and to present 
and examine documentary evidence;
    (3) Require the testimony of the individual and all witnesses be 
given under oath or affirmation; and
    (4) Ensure that a transcript of the certification review proceedings 
is made.



Sec. 712.22  Hearing officer's report and recommendation.

    Within 30 calendar days of the receipt of the hearing transcript by 
the hearing officer or the closing of the record, whichever is later, 
the hearing officer must forward written findings, a supporting 
statement of reasons, and recommendation regarding the individual's 
eligibility for recertification in

[[Page 389]]

the HRP position to the Chief Health, Safety and Security Officer. The 
hearing officer's report and recommendation must be accompanied by a 
copy of the record of the proceedings. The Chief Health, Safety and 
Security Officer shall forward to the DOE Deputy Secretary a 
recommendation to either recertify or revoke the certification of an 
individual in the HRP.

[69 FR 3223, Jan. 23, 2004, as amended at 71 FR 68731, Nov. 28, 2006]



Sec. 712.23  Final decision by DOE Deputy Secretary.

    Within 20 working days of the receipt of the Chief Health, Safety 
and Security Officer's recommendation, the Deputy Secretary should issue 
a final written decision. A copy of this decision must be sent by 
certified mail (return receipt requested) to the Manager and to the 
individual accompanied by a copy of the hearing officer's report and the 
transcript of the certification review proceedings.

[69 FR 3223, Jan. 23, 2004, as amended at 71 FR 68731, Nov. 28, 2006]



                       Subpart B_Medical Standards



Sec. 712.30  Applicability.

    This subpart establishes standards and procedures for conducting 
medical assessments of DOE and DOE contractor individuals in HRP 
positions.



Sec. 712.31  Purpose.

    The standards and procedures set forth in this subpart are necessary 
for DOE to:
    (a) Identify the presence of any mental/personality disorders, 
physical, or behavioral characteristics or conditions that present or 
are likely to present an unacceptable impairment in reliability;
    (b) Facilitate the early diagnosis and treatment of disease or 
impairment and foster accommodation and rehabilitation;
    (c) Determine what functions an HRP-certified individual may be able 
to perform and to facilitate the proper placement of individuals; and
    (d) Provide for continuing monitoring of the health status of 
individuals to facilitate early detection and correction of adverse 
health effects, trends, or patterns.



Sec. 712.32  Designated Physician.

    (a) The Designated Physician must be qualified to provide 
professional expertise in the area of occupational medicine as it 
relates to the HRP.
    (b) The Designated Physician must:
    (1) Be a graduate of an accredited school of medicine or osteopathy;
    (2) Have a valid, unrestricted state license to practice medicine in 
the state where HRP medical assessments occur;
    (3) Have met the applicable HRP instruction requirements; and
    (4) Be eligible for the appropriate DOE access authorization.
    (c) The Designated Physician is responsible for the medical 
assessments of HRP candidates and HRP-certified individuals, including 
determining which components of the medical assessments may be performed 
by other qualified personnel. Although a portion of the assessment may 
be performed by another physician, physician's assistant, or nurse 
practitioner, the Designated Physician remains responsible for:
    (1) Supervising the evaluation process;
    (2) Interpreting the results of evaluations;
    (3) Documenting medical conditions or issues that may disqualify an 
individual from the HRP;
    (4) Providing medical assessment information to the Designated 
Psychologist to assist in determining psychological fitness;
    (5) Determining, in conjunction with DOE if appropriate, the 
location and date of the next required medical assessment; and
    (6) Signing a recommendation about the medical fitness of an 
individual for certification or recertification.
    (d) The Designated Physician must immediately report to the SOMD any 
of the following about himself or herself:
    (1) Initiation of an adverse action by any state medical licensing 
board or any other professional licensing board;
    (2) Initiation of an adverse action by any Federal regulatory board 
since the last designation;

[[Page 390]]

    (3) The withdrawal of the privilege to practice by any institution;
    (4) Being named a defendant in any criminal proceedings (felony or 
misdemeanor) since the last designation;
    (5) Being evaluated or treated for alcohol use disorder or drug 
dependency or abuse since the last designation; or
    (6) Occurrence, since the last designation, of a physical, mental/
personality disorder, or health condition that might affect his or her 
ability to perform professional duties.



Sec. 712.33  Designated Psychologist.

    (a) The Designated Psychologist reports to the SOMD and determines 
the psychological fitness of an individual to participate in the HRP. 
The results of this evaluation may be provided only to the Designated 
Physician or the SOMD.
    (b) The Designated Psychologist must:
    (1) Hold a doctoral degree from a clinical psychology program that 
includes a one-year clinical internship approved by the American 
Psychological Association or an equivalent program;
    (2) Have accumulated a minimum of three years postdoctoral clinical 
experience with a major emphasis in psychological assessment and 
testing;
    (3) Have a valid, unrestricted state license to practice clinical 
psychology in the state where HRP medical assessments occur;
    (4) Have met the applicable HRP instruction requirements; and
    (5) Be eligible for the appropriate DOE access authorization.
    (c) The Designated Psychologist is responsible for all psychological 
evaluations of HRP candidates, HRP-certified individuals, and others as 
directed by the SOMD. Although a portion of the psychological evaluation 
may be performed by another psychologist, the Designated Psychologist 
must:
    (1) Supervise the psychological evaluation process and designate 
which components may be performed by other qualified personnel;
    (2) Upon request of management, assess the psychological fitness of 
HRP candidates and HRP-certified individuals for HRP duties, including 
specific work settings, and recommend referrals as indicated; and
    (3) Make referrals for psychiatric, psychological, substance abuse, 
or personal or family problems, and monitor the progress of individuals 
so referred.
    (d) The Designated Psychologist must immediately report to the SOMD 
any of the following about himself or herself:
    (1) Initiation of an adverse action by any state medical licensing 
board or any other professional licensing board;
    (2) Initiation of an adverse action by any Federal regulatory board 
since the last designation;
    (3) The withdrawal of the privilege to practice by any institution;
    (4) Being named a defendant in any criminal proceeding (felony or 
misdemeanor) since the last designation;
    (5) Being evaluated or treated for alcohol use disorder or drug 
dependency or abuse since the last designation; or
    (6) Occurrence since the last designation of a physical, mental/
personality disorder, or health condition that might affect his or her 
ability to perform professional duties.



Sec. 712.34  Site Occupational Medical Director.

    (a) The SOMD must nominate a physician to serve as the Designated 
Physician and a clinical psychologist to serve as the Designated 
Psychologist. The nominations must be sent through the Manager to the 
Director, Office of Health and Safety or his or her designee. Each 
nomination must describe the nominee's relevant training, experience, 
and licensure, and include a curriculum vitae and a copy of the 
nominee's current state or district license.
    (b) The SOMD must submit a renomination report biennially through 
the Manager to the Director, Office of Health and Safety or his or her 
designee. This report must be submitted at least 60 days before the 
second anniversary of the initial designation or of the last 
redesignation, whichever applies. The report must include:
    (1) A statement evaluating the performance of the Designated 
Physician and Designated Psychologist during the previous designation 
period; and

[[Page 391]]

    (2) A copy of the valid, unrestricted state or district license of 
the Designated Physician and Designated Psychologist.
    (c) The SOMD must submit, annually, to the Director, Office of 
Health and Safety or his or her designee through the Manager, a written 
report summarizing HRP medical activity during the previous year. The 
SOMD must comply with any DOE directives specifying the form or contents 
of the annual report.
    (d) The SOMD must investigate any reports of performance issues 
regarding a Designated Physician or Designated Psychologist, and the 
SOMD may suspend either official from HRP-related duties. If the SOMD 
suspends either official, the SOMD must notify the Director, Office of 
Health and Safety or his or her designee and provide supporting 
documentation and reasons for the action.

[69 FR 3223, Jan. 23, 2004, as amended at 71 FR 68731, Nov. 28, 2006]



Sec. 712.35  Director, Office of Health and Safety.

    The Director, Office of Health and Safety or his or her designee 
must:
    (a) Develop policies, standards, and guidance for the medical 
aspects of the HRP, including the psychological testing inventory to be 
used;
    (b) Review the qualifications of Designated Physicians and 
Designated Psychologists, and concur or nonconcur with their 
designations by sending a statement to the Manager and an informational 
copy to the SOMD; and
    (c) Provide technical assistance on medical aspects of the HRP to 
all DOE elements and DOE contractors.

[69 FR 3223, Jan. 23, 2004, as amended at 71 FR 68732, Nov. 28, 2006]



Sec. 712.36  Medical assessment process.

    (a) The Designated Physician, under the supervision of the SOMD, is 
responsible for the medical assessment of HRP candidates and HRP-
certified individuals. In carrying out this responsibility, the 
Designated Physician or the SOMD must integrate the medical evaluations, 
psychological evaluations, psychiatric evaluations, and any other 
relevant information to determine an individual's overall medical 
qualification for assigned duties.
    (b) Employers must provide a job task analysis for those individuals 
involved in HRP duties to both the Designated Physician and the 
Designated Psychologist before each medical assessment and psychological 
evaluation. HRP medical assessments and psychological evaluations may 
not be performed if a job task analysis has not been provided.
    (c) The medical process by the Designated Physician includes:
    (1) Medical assessments for initial certification, annual 
recertification, and evaluations for reinstatement following temporary 
removal from the HRP;
    (2) Evaluations resulting from self-referrals and referrals by 
management;
    (3) Routine medical contacts and occupational and nonoccupational 
health counseling sessions; and
    (4) Review of current legal drug use.
    (d) Psychological evaluations must be conducted:
    (1) For initial certification. This psychological evaluation 
consists of a generally accepted psychological assessment (test) 
approved by the Director, Office of Health and Safety or his or her 
designee and a semi-structured interview.
    (2) For recertification. This psychological evaluation consists of a 
semi-structured interview, which is conducted annually at the time of 
the medical examination.
    (3) Every third year. The medical assessment for recertification 
must include a generally accepted psychological assessment (test) 
approved by the Director, Office of Health and Safety or his or her 
designee.
    (4) When the SOMD determines that additional psychological or 
psychiatric evaluations are required to resolve HRP concerns as listed 
in Sec. 712.13(c).
    (e) Following absences requiring return-to-work evaluations under 
applicable DOE directives, the Designated Physician, the Designated 
Psychologist, or the SOMD must determine whether a psychological 
evaluation is necessary.
    (f) Except as provided in paragraph (g) of this section, the 
Designated Physician must forward the completed

[[Page 392]]

medical assessment of an HRP candidate and HRP-certified individual to 
the SOMD, who must make a recommendation, based on the assessment, to 
the individual's HRP management official. If the Designated Physician 
determines that a currently certified individual no longer meets the HRP 
requirements, the Designated Physician must immediately, orally, inform 
the HRP management official. A written explanation must follow within 24 
hours.
    (g) The Designated Physician, the Designated Psychologist, or the 
SOMD may make a medical recommendation for return to work and work 
accommodations for HRP-certified individuals.
    (h) The following documentation is required after treatment of an 
individual for any disqualifying condition:
    (1) A summary of the diagnosis, treatment, current status, and 
prognosis to be furnished by the treatment provider to the Designated 
Physician;
    (2) The medical opinion of the Designated Physician advising the 
individual's supervisor whether the individual is able to return to work 
in either an HRP or non-HRP capacity; and
    (3) Any periodic monitoring plan, approved by the Designated 
Physician or the Designated Psychologist and the SOMD, used to evaluate 
the reliability of the individual.
    (i) If the disqualifying condition was of a security concern, the 
appropriate procedure described in 10 CFR part 710, subpart A, applies.

[69 FR 3223, Jan. 23, 2004, as amended at 71 FR 68731, Nov. 28, 2006]



Sec. 712.37  Evaluation for hallucinogen use.

    If DOE determines that an HRP candidate or HRP-certified individual 
has used any hallucinogen, the individual is not eligible for 
certification or recertification unless:
    (a) Five years have passed since the last use of the hallucinogen;
    (b) There is no evidence of any flashback within the last five years 
from the previous hallucinogen use; and
    (c) The individual has a record of acceptable job performance and 
observed behavior.



Sec. 712.38  Maintenance of medical records.

    (a) The medical records of HRP candidates and HRP-certified 
individuals must be maintained in accordance with the Privacy Act, 5 
U.S.C. 552a, and DOE implementing regulations in 10 CFR part 1008; the 
Department of Labor's regulations on access to individual exposure and 
medical records, 29 CFR 1910.1020; and applicable DOE directives. DOE 
contractors also may be subject to section 503 of the Rehabilitation 
Act, 29 U.S.C. 793, and its implementing rules, including 
confidentiality provisions in 41 CFR 60-741.23 (d).
    (b) The psychological record of HRP candidates and HRP-certified 
individuals is a component of the medical record. The psychological 
record must:
    (1) Contain any clinical reports, test protocols and data, notes of 
individual contacts and correspondence, and other information pertaining 
to an individual's contact with a psychologist;
    (2) Be stored in a secure location in the custody of the Designated 
Psychologist; and
    (3) Be kept separate from other medical record documents, with 
access limited to the SOMD and the Designated Physician.



PART 715_DEFINITION OF NON-RECOURSE PROJECT-FINANCED--Table of Contents



Sec.
715.1 Purpose and scope.
715.2 Definitions.
715.3 Definition of ``Nonrecourse Project-Financed.''

    Authority: 42 U.S.C. 7651o(a)(2)(B); 42 U.S.C. 7254.

    Source: 56 FR 55064, Oct. 24, 1991, unless otherwise noted.



Sec. 715.1  Purpose and scope.

    This part sets forth the definition of ``nonrecourse project-
financed'' as that term is used to define ``new independent power 
production facility,'' in section 416(a)(2)(B) of the Clean Air Act 
Amendments of 1990, 42 U.S.C. 7651o(a)(2)(B). This definition is for 
purposes of section 416(a)(2)(B) only. It is not intended to alter or 
impact the

[[Page 393]]

tax treatment of any facility or facility owner under the Internal 
Revenue Code and regulations.



Sec. 715.2  Definitions.

    As used in this subpart--
    Act means the Clean Air Act Amendments of 1990, 104 Stat. 2399.
    Facility means a ``new independent power production facility'' as 
that term is used in the Act, 42 U.S.C. 7651o(a)(2).



Sec. 715.3  Definition of ``Nonrecourse Project-Financed''.

    Nonrecourse project-financed means when being financed by any debt, 
such debt is secured by the assets financed and the revenues received by 
the facility being financed including, but not limited to, part or all 
of the revenues received under one or more agreements for the sale of 
the electric output from the facility, and which neither an electric 
utility with a retail service territory, nor a public utility as defined 
by section 201(e) of the Federal Power Act, as amended, 16 U.S.C. 
824(e), if any of its facilities are financed with general credit, is 
obligated to repay in whole or in part. A commitment to contribute 
equity or the contribution of equity to a facility by an electric 
utility shall not be considered an obligation of such utility to repay 
the debt of a facility. The existence of limited guarantees, commitments 
to pay for cost overruns, indemnity provisions, or other similar 
undertakings or assurances by the facility's owners or other project 
participants will not disqualify a facility from being ``nonrecourse 
project-financed'' as long as, at the time of the financing for the 
facility, the borrower is obligated to make repayment of the term debt 
from the revenues generated by the facility, rather than from other 
sources of funds. Projects that are 100 percent equity financed are also 
considered ``nonrecourse project-financed'' for purposes of section 
416(a)(2)(B).



PART 719_CONTRACTOR LEGAL MANAGEMENT REQUIREMENTS--Table of Contents



                      Subpart A_General Provisions

Sec.
719.1 What is the purpose of this part?
719.2 What are the definitions of terms used in this part?
719.3 What contracts are covered by this part?
719.4 Are law firms that are retained by the Department covered by this 
          part?
719.5 What contracts are not covered by this part?
719.6 Are there any types of legal matters not included in the coverage 
          of this part?
719.7 Is there a procedure for exceptions or deviations from this part?

                     Subpart B_Legal Management Plan

719.10 What information must be included in the legal management plan?
719.11 Who must submit a legal management plan?
719.12 When must the plan be submitted?
719.13 Who at the Department must receive and review the plan?
719.14 Will the Department notify the contractor concerning the adequacy 
          or inadequacy of the submitted plan?
719.15 What are the requirements for a staffing and resource plan?
719.16 When must the staffing and resource plan be submitted?
719.17 Are there any budgetary requirements?

                       Subpart C_Engagement Letter

719.20 When must an engagement letter be used?
719.21 What are the required elements of an engagement letter?

          Subpart D_Reimbursement of Costs Subject to This Part

719.30 Is there a standard for determining cost reasonableness?
719.31 How does the Department determine whether fees are reasonable?
719.32 For what costs is the contractor, or Department retained counsel, 
          limited to reimbursement of actual costs only?
719.33 What categories of costs are unallowable?
719.34 What is the treatment for travel costs?
719.35 What categories of costs require advance approval?
719.36 Who at the Department must give advance approval?
719.37 Are there any special procedures or requirements regarding 
          subcontractor legal costs?
719.38 Are costs covered by this part subject to audit?
719.39 What happens when more than one contractor is a party to the 
          matter?

[[Page 394]]

                Subpart E_Department Counsel Requirements

719.40 What is the role of Department counsel as a contracting officer's 
          representative?
719.41 What information must be forwarded to the General Counsel's 
          Office concerning contractor submissions to Department counsel 
          under this part?
719.42 What types of field actions must be coordinated with 
          Headquarters?

Appendix to Part 719--Guidance for Legal Resource Management

    Authority: 42 U.S.C. 2201, 5814, 5815 and 7101, et seq.; 50 U.S.C. 
2401, et seq.

    Source: 66 FR 4621, Jan. 18, 2001, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 719.1  What is the purpose of this part?

    This part is intended to facilitate control of Department and 
contractor legal costs, including litigation costs. The contractor is 
required to develop a procedure for retaining legal counsel, and to 
document the analysis used to decide when, where and who will be engaged 
as outside counsel and the terms of the engagement. Payment of law firm 
invoices and reimbursement of contractor legal costs under covered 
contracts is subject to compliance with this part.



Sec. 719.2  What are the definitions of terms used in this part?

    For purposes of this part:
    Alternative dispute resolution includes processes such as mediation, 
neutral evaluation, mini-trials and arbitration.
    Contractor means any person or entity with whom the Department 
contracts for the acquisition of goods or services.
    Covered contracts means those contracts described in Sec. 719.3.
    Department means the Department of Energy, including the National 
Nuclear Security Administration.
    Department counsel means the individual in the field office, or 
Headquarter's office, designated as the contracting officer's 
representative and point of contact for a contractor or Department 
retained legal counsel, for purposes of this part only, for submission 
and approval of the legal management plan, advance approval of certain 
costs, and submission of a staffing and resource plan, as addressed in 
this part.
    Legal costs include, but are not limited to, administrative expenses 
associated with the provision of legal services by retained legal 
counsel; the costs of legal services provided by retained legal counsel; 
the costs of the services of accountants, consultants, or others 
retained by the contractor or by retained legal counsel to assist 
retained legal counsel; and any similar costs incurred by or in 
connection with the services of retained legal counsel.
    Legal management plan means a statement describing the contractor's 
practices for managing legal costs and matters for which it procures the 
services of retained legal counsel.
    Retained legal counsel means members of the bar working in the 
private sector, either individually or in law firms, who are retained by 
a contractor or the Department to provide legal services.
    Significant matters means legal matters, including litigation, 
involving significant issues as determined by Department counsel, and 
any legal matter where the amount of any legal costs, over the life of 
the matter, is expected to exceed $100,000.
    Staffing and resource plan means a statement prepared by retained 
legal counsel describing plans for managing a significant matter.



Sec. 719.3  What contracts are covered by this part?

    (a) This part covers cost reimbursement contracts:
    (1) For an amount exceeding $100,000,000, and
    (2) Involving work performed at the facilities owned or leased by 
the Department.
    (b) This part covers contracts otherwise not covered by paragraph 
3(a) of this section containing a specialized clause requiring 
compliance with this part.
    (c) This part also covers Department contracts with retained legal 
counsel where the legal costs are expected to exceed $100,000.

[[Page 395]]



Sec. 719.4  Are law firms that are retained by the Department covered by this part?

    Retained legal counsel under fixed rate or other type of contract 
with the Department itself to provide legal services must comply with 
the following where the legal costs over the life of the matter for 
which counsel has been retained are expected to exceed $100,000:
    (a) Requirements related to staffing and resource plans in subpart B 
of this part,
    (b) Engagement letter requirements if legal work is contracted out, 
and
    (c) Cost guidelines in subpart D of this part.



Sec. 719.5  What contracts are not covered by this part?

    This part does not cover:
    (a) Fixed price contracts;
    (b) Cost reimbursement contracts for an amount less than 
$100,000,000; or
    (c) Contracts for an amount exceeding $100,000,000 involving work 
not performed at a government owned or leased site.



Sec. 719.6  Are there any types of legal matters not included in the coverage of this part?

    Matters not covered by this part include:
    (a) Matters handled by counsel retained by an insurance carrier;
    (b) Routine intellectual property law support services;
    (c) Routine workers and unemployment compensation matters and labor 
arbitrations; and
    (d) Routine matters handled by counsel retained through a GSA supply 
schedule.



Sec. 719.7  Is there a procedure for exceptions or deviations from this part?

    (a) Requests for exceptions or deviations from this part by 
contractors must be made in writing to Department counsel and approved 
by the General Counsel. If an alternate procedure is proposed for 
compliance with an individual requirement in this part, that procedure 
must be included in the written request by the contractor.
    (b) The General Counsel may authorize exceptions based on a 
recommendation of Department counsel. The General Counsel may also 
establish exceptions to this part based on current field office and 
contractor practices which satisfy the purpose of these requirements.
    (c) Exceptions to this part which are also a deviation from the cost 
principles (see subpart D of this part) must be approved by the 
Procurement Executive. See 48 CFR (FAR) 31.101. Written requests from 
contractors for a deviation to a cost principle must be submitted to the 
contracting officer, with a copy provided to Department counsel.



                     Subpart B_Legal Management Plan



Sec. 719.10  What information must be included in the legal management plan?

    The legal management plan must include the following items:
    (a) A description of the legal matters that may necessitate handling 
by retained legal counsel.
    (b) A discussion of the factors the contractor must consider in 
determining whether to handle a particular matter utilizing retained 
legal counsel.
    (c) An outline of the factors the contractor must consider in 
selecting retained legal counsel, including:
    (1) Competition;
    (2) Past performance and proficiency shown by previously retained 
counsel;
    (3) Particular expertise in a specific area of the law;
    (4) Familiarity with the Department's activity at the particular 
site and the prevalent issues associated with facility history and 
current operations;
    (5) Location of retained legal counsel relative to:
    (i) The site involved in the matter,
    (ii) Any forum in which the matter will be processed, and
    (iii) Where a significant portion of the work will be performed;
    (6) Experience as an advocate in alternative dispute resolution 
procedures such as mediation;
    (7) Actual or potential conflicts of interest; and

[[Page 396]]

    (8) The means and rate of compensation (e.g., hourly billing, fixed 
fee, blended fees, etc.).
    (d) A description of:
    (1) The system that the contractor will use to review each case to 
determine whether and when alternative dispute resolution is 
appropriate;
    (2) The role of in house counsel in cost management;
    (3) The contractor's process for review and approval of invoices 
from outside law firms or consultants;
    (4) The contractor's strategy for interaction with, and supervision 
of, retained legal counsel;
    (5) How appropriate interaction with the contracting officer and 
Department counsel will be ensured; and,
    (6) The contractor's corporate approach to legal decision making.



Sec. 719.11  Who must submit a legal management plan?

    Contractors identified under paragraphs (a) and (b) in Sec. 719.3 
must submit a legal management plan.



Sec. 719.12  When must the plan be submitted?

    Contractors identified under paragraphs (a) and (b) in Sec. 719.3 
must submit a legal management plan within 60 days following the 
execution of a contract with the Department.



Sec. 719.13  Who at the Department must receive and review the plan?

    The contractors identified under paragraphs (a) and (b) in Sec. 
719.3 must file a legal management plan with Department counsel.



Sec. 719.14  Will the Department notify the contractor concerning the adequacy or inadequacy of the submitted plan?

    (a) The Department will notify the contractor within 30 days of the 
contractor's submission of the plan of any deficiencies relating to 
requirements in Sec. 719.10.
    (b) The contractor must either correct identified deficiencies 
within 30 days of notice of the deficiency or file a letter with the 
General Counsel disputing the determination of a deficiency.



Sec. 719.15  What are the requirements for a staffing and resource plan?

    (a) For significant matters, the contractor must require retained 
legal counsel providing legal services to prepare a staffing and 
resource plan as provided in this section. The contractor must then 
forward the staffing and resource plan to Department counsel. Department 
retained counsel subject to this part must prepare a staffing and 
resource plan and forward it to Department counsel.
    (b) A staffing and resource plan is a plan describing:
    (1) Major phases likely to be involved in the handling of the 
matter;
    (2) Timing and sequence of such phases;
    (3) Projected cost for each phase of the representation; and
    (4) Numbers and mix of resources, when applicable, that the retained 
legal counsel intends to devote to the representation.
    (c) For significant matters in litigation, in addition to the 
generalized annual budget required by Sec. 719.17 a staffing and 
resource plan must include a budget, broken down by phases, including at 
a minimum:
    (1) Matter assessment, development and administration;
    (2) Pretrial pleadings and motions;
    (3) Discovery;
    (4) Trial preparation and trial; and
    (5) Appeal.



Sec. 719.16  When must the staffing and resource plan be submitted?

    (a) For significant matters in litigation, the contractor or 
Department retained counsel must submit the staffing and resource within 
30 days after the filing of an answer or a dispositive motion in lieu of 
an answer, or 30 days after a determination that the cost is expected to 
exceed $100,000.
    (b) For significant legal services matters, the contractor or 
Department retained counsel must submit the staffing and resource plan 
within 30 days following execution of an engagement letter.
    (c) Contractors and Department retained counsel must submit updates 
to staffing and resource plans annually or sooner if significant changes 
occur in the matter.

[[Page 397]]

    (d) When it is unclear whether a matter is significant, the 
contractor must consult with Department counsel on the question.
    (e) The purpose of the staffing and resource plan is primarily 
informational, but Department counsel may state objections within 30 
days of the submission of a staffing and resource plan. When an 
objection is stated, the contractor has 30 days to satisfy the objection 
or dispute the objection in a letter to the General Counsel.



Sec. 719.17  Are there any budgetary requirements?

    (a) Contractors required to submit a legal management plan must also 
submit an annual legal budget covering then pending matters to 
Department counsel.
    (b) The annual legal budget must include cost projections for known 
or existing matters for which reimbursable legal costs are expected to 
exceed $100,000, at a level of detail reflective of the types of 
billable activities and the stage of each such matter.
    (c) For informational purposes for both the contractor and 
Department counsel, the contractor must report on its success on staying 
within budget at the conclusion of the period covered by each annual 
legal budget. The Department recognizes, however, that there will be 
departures from the annual budget beyond the control of the contractor.



                      Subpart C_Engagement Letters



Sec. 719.20  When must an engagement letter be used?

    Contractors must submit an engagement letter to retained legal 
counsel expected to provide $25,000 or more in legal services for a 
particular matter and submit a copy of correspondence relating to Sec. 
719.21, including correspondence from retained legal counsel addressing 
any of the issues under Sec. 719.21, to Department counsel.



Sec. 719.21  What are the required elements of an engagement letter?

    (a) The engagement letter must require retained legal counsel to 
assist the contractor in complying with this part and any supplemental 
guidance distributed under this part.
    (b) At a minimum, the engagement letter must include the following:
    (1) A process for review and documented approval of all billing by a 
contractor representative, including the timing and scope of billing 
reviews.
    (2) A statement that provision of records to the Government is not 
intended to constitute a waiver of any applicable legal privilege, 
protection, or immunity with respect to disclosure of these records to 
third parties. (An exemption for specific records may be obtained where 
contractors can demonstrate that a particular situation may provide 
grounds for a waiver.)
    (3) A requirement that the contractor, the Department, and the 
General Accounting Office, have the right upon request, at reasonable 
times and locations, to inspect, copy, and audit all records documenting 
billable fees and costs.
    (4) A statement that all records must be retained for a period of 
three (3) years after the final payment.
    (c) The contractor must obtain the following information from 
retained counsel:
    (1) Identification of all attorneys and staff who are assigned to 
the matter and the rate and basis of their compensation (i.e., hourly 
rates, fixed fees, contingency arrangement) and a process for obtaining 
approval of temporary adjustments in staffing levels or identified 
attorneys.
    (2) An initial assessment of the matter, along with a commitment to 
provide updates as necessary.
    (3) A description of billing procedures, including frequency of 
billing and billing statement format.
    (d) The contractor must obtain retained counsel's agreement to the 
following:
    (1) That in significant matters a staffing and resource plan for the 
conduct of the matter must be submitted by the retained legal counsel to 
the contractor in accordance with the requirements of Sec. Sec. 719.15 
and 719.16.
    (2) That alternative dispute resolution must be considered at as 
early a stage as possible where litigation is involved.

[[Page 398]]

    (3) That retained counsel must comply with the cost guidelines in 
subpart D of this part.
    (4) That retained counsel must provide a certification concerning 
the costs submitted for reimbursement that is consistent with the 
certification in the Attachment to Appendix A to this part.
    (5) That professional conflicts of interest issues must be 
identified and addressed promptly.
    (e) Additional requirements may be included in an engagement letter 
based on the needs of the contractor or the office requiring the 
Department retained counsel.



          Subpart D_Reimbursement of Costs Subject to This Part



Sec. 719.30  Is there a standard for determining cost reasonableness?

    The standard for cost reasonableness determinations, one of the 
criteria for an allowability determination, is contained in the Federal 
Acquisition Regulation (FAR), at 48 CFR 31.201-3.



Sec. 719.31  How does the Department determine whether fees are reasonable?

    In determining whether fees or rates charged by retained legal 
counsel are reasonable, the Department may consider:
    (a) Whether the lowest reasonably achievable fees or rates 
(including any currently available or negotiable discounts) were 
obtained from retained legal counsel;
    (b) Whether lower rates from other firms providing comparable 
services were available;
    (c) Whether alternative rate structures such as flat, contingent, 
and other innovative proposals, were considered;
    (d) The complexity of the legal matter and the expertise of the law 
firm in this area; and
    (e) The factors listed in Sec. 719.10(c).



Sec. 719.32  For what costs is the contractor, or Department retained counsel, limited to reimbursement of actual costs only?

    All costs determined to be allowable are reimbursable for actual 
costs only, with no overhead or surcharge adjustments.



Sec. 719.33  What categories of costs are unallowable?

    (a) Specific categories of unallowable costs are contained in the 
cost principles at 48 CFR (FAR) part 31 and 48 CFR (DEAR) part 931 and 
970.31. See also 41 U.S.C. 256(e).
    (b) The Department does not consider for reimbursement any costs 
incurred for entertainment or alcoholic beverages. See 48 CFR (FAR) 
31.205-14 and 31.205-51 and 41 U.S.C. 256(e).
    (c) Costs that are customarily or already included in billed hourly 
rates are not separately reimbursable.
    (d) Interest charges that a contractor incurs on any outstanding 
(unpaid) bills from retained legal counsel are not reimbursable.



Sec. 719.34  What is the treatment for travel costs?

    Travel and related expenses must at a minimum comply with the 
restrictions set forth in 48 CFR (FAR) 31.205-46, or 48 CFR (DEAR) 
970.3102-05-46, as appropriate, to be reimbursable.



Sec. 719.35  What categories of costs require advance approval?

    Costs for the following require specific justification or advance 
written approval from Department counsel to be considered for 
reimbursement:
    (a) Computers or general application software, or non-routine 
computerized databases specifically created for a particular matter;
    (b) Charges for materials or non-attorney services exceeding $5,000;
    (c) Secretarial and support services, word processing, or temporary 
support personnel;
    (d) Attendance by more than one person at a deposition, court 
hearing, interview or meeting;
    (e) Expert witnesses and consultants;
    (f) Trade publications, books, treatises, background materials, and 
other similar documents;
    (g) Professional or educational seminars and conferences;
    (h) Preparation of bills or time spent responding to questions about 
bills from either the Department or the contractor;

[[Page 399]]

    (i) Food and beverages when the attorney or consultant is not on 
travel status and away from the home office; and
    (j) Pro hac vice admissions.



Sec. 719.36  Who at the Department must give advance approval?

    If advance approval is required under this part, the advance 
approval must be obtained from the Department counsel unless the 
Department counsel indicates that approval of a request may only be 
given by the contracting officer.



Sec. 719.37  Are there any special procedures or requirements regarding subcontractor legal costs?

    (a) The contractor must have a monitoring system for subcontractor 
legal matters likely to reach $100,000 over the life of the matter. The 
purpose of this system is to enable the contractor to perform the same 
type of analysis and review of subcontractor legal management practices 
that the Department can perform of the contractor's legal management 
practices. The monitoring is intended to enable the contractor to keep 
the Department informed about significant subcontractor legal matters, 
including significant matters in litigation. The burden is on the prime 
contractor to be responsive to questions raised by the Department 
concerning significant subcontractor legal matters.
    (b) Contractors must submit information copies of subcontractor 
invoices for legal services to Department counsel.



Sec. 719.38  Are costs covered by this part subject to audit?

    All costs covered by this part are subject to audit by the 
Department, its designated representative or the General Accounting 
Office. See Sec. 719.21.



Sec. 719.39  What happens when more than one contractor is a party to a matter?

    (a) If more than one contractor is a party in a particular matter 
and the issues involved are similar for all the contractors, a single 
legal counsel designated by the General Counsel must either represent 
all of the contractors or serve as lead counsel, when the rights of the 
contractors and the government can be effectively represented by a 
single legal counsel, consistent with the standards for professional 
conduct applicable in the particular matter. Contractors may propose to 
the General Counsel their preference for the individual or law firm to 
perform as the lead counsel for a particular matter.
    (b) If a contractor, having been afforded an opportunity to present 
its views concerning joint or lead representation, does not acquiesce in 
the designation of one retained legal counsel to represent a number of 
contractors, or serve as lead counsel, then the legal costs of such 
contractor are not reimbursable by the Department, unless the contractor 
persuasively shows that it was reasonable for the contractor to incur 
such expenses.



                Subpart E_Department Counsel Requirements



Sec. 719.40  What is the role of Department counsel as a contracting officer's representative?

    (a) The individual selected as Department counsel for a contract 
subject to the requirements of this part must be approved by the 
contracting officer and the appropriate Chief Counsel, or General 
Counsel if at Headquarters. The Department counsel must receive written 
delegated authority from the contracting officer to serve as the 
contracting officer's representative for legal matters. The contractor 
must receive a copy of this delegation of authority.
    (b) Actions by Department counsel may not exceed the 
responsibilities and limitations as delegated by the contracting 
officer. Delegated contracting officer representative authority may not 
be construed to include the authority to execute or to agree to any 
modification of the contract nor to attempt to resolve any contract 
dispute concerning a question of fact arising under the contract.

[[Page 400]]



Sec. 719.41  What information must be forwarded to the General Counsel's Office

concerning contractor submissions to Department counsel under this part?

    Department counsel must submit through the General Counsel reporting 
system, the approved costs and status updates for all matters involving 
retained counsel, including but not limited to contractor litigation. 
The reports are to be received by the 15th day of the month following 
the end of each quarter of the fiscal year.



Sec. 719.42  What types of field actions must be coordinated with Headquarters?

    (a) Requests from contractors for exception from this entire part 
must be coordinated with Headquarters.
    (b) Requests from contractors for approval to initiate or defend 
litigation, or to appeal from adverse decisions, where legal issues of 
first impression, sensitive issues, issues of significance to the 
Department nationwide or issues of broad applicability to the Government 
that might adversely impact its operations are involved must be 
coordinated by Department counsel with the Deputy General Counsel for 
Litigation or his/her designee.
    (c) Department field counsel must inform the General Counsel of any 
significant matter, as defined in this part, and must coordinate any 
action involving a significant matter with the General Counsel, or his/
her designee, as directed by the General Counsel or his/her designee.



    Sec. Appendix to Part 719--Guidance for Legal Resource Management

Management and Administration of Outside Legal Services
1.0 Initiation of Litigation
2.0 Defense of Litigation
2.1 Disapproval of Defensive Litigation
3.0 Notice to the Department of Significant Matters and Litigation
4.0 Alternative Dispute Resolution
5.0 Cost Allowability Issues
5.1 Underlying Cause for Incurrence of Costs
5.2 Fees and Other Charges
6.0 Role of Department Counsel as the Contracting Officer's 
          Representative
7.0 Future Amendments to Guidance
Attachment--Contractor Litigation and Legal Costs, Model Bill 
          Certification and Format

         Management and Administration of Outside Legal Services

    This guidance is intended to assist contractors and the Department's 
contracting officers and counsel in managing the costs of outside legal 
services. This guidance is also intended to assist retained legal 
counsel who provide services to the Department or to the Department's 
contractors.

                      1.0 Initiation of Litigation

    (A) The Insurance--Litigation and Claims clause (48 CFR (DEAR) 
970.5228-1) in the Department's facility management contracts provides 
that the contractor may not initiate litigation, including appeals from 
adverse decisions, without the prior authorization or approval of 
Department counsel acting in his/her capacity as the Department's 
contracting officer representative. The following are the minimum 
informational requirements for requests for authorization or approval 
under that clause:
    (1) Identification of the proposed parties;
    (2) The nature of the proposed action;
    (3) Relief sought;
    (4) Venue;
    (5) Proposed representation and reason for selection;
    (6) An analysis of the issues and the likelihood of success, and any 
time limitation associated with the requested approval;
    (7) The estimated costs associated with the proposed action, 
including whether outside counsel has agreed to a contingent fee 
arrangement;
    (8) Whether, for any reason, the contractor will assume any part of 
the costs of the action;
    (9) A description of any attempts to resolve the issues that would 
be the subject of the litigation, such as through mediation or other 
means of alternative dispute resolution; and
    (10) A discussion of why initiating litigation would prove 
beneficial to the contractor and to the Government.
    (B) Department counsel should advise the contracting officer 
concerning each request and must provide assistance to the contracting 
officer in communicating the Department's decision to the contractor.

                        2.0 Defense of Litigation

    (A) In accordance with the Insurance-Litigation and Claims clause, 
the contractor must immediately notify Department counsel, acting in 
his/her capacity as contracting officer representative, of the 
initiation of litigation against the contractor. Department counsel will 
advise the contractor as to:

[[Page 401]]

    (1) Whether the defense of the litigation will be either approved or 
disapproved or approval deferred and any conditions to which approval is 
subject;
    (2) Whether the contractor must authorize the Government to defend 
the action;
    (3) Whether the Government will take charge of the action; or
    (4) Whether the Government must receive an assignment of the 
contractor's rights.
    (B) When defensive litigation is approved at a later stage or at the 
conclusion of the matter, reimbursement can be made for only those 
expenses which would have been reimbursable as allowable costs if the 
Department had originally approved the defense of the litigation.

                 2.1 Disapproval of Defensive Litigation

    If the Department disapproves in advance the costs of defense of the 
litigation, the contractor will be notified of the disapproval and that 
contract funds may not be used to fund the defense of the litigation. 
The contractor will also be informed if the Department changes its 
position. Contractor compliance with these policies and procedures does 
not itself obligate the Department to reimburse litigation costs or 
judgment costs when Departmental approval of the litigation cost has 
been denied or deferred.

   3.0 Notice to the Department of Significant Matters and Litigation

    The contractor's procedures under its Legal Management Plan should 
include provisions for earliest possible notification to the Department 
of the likely initiation of any ``significant matters'' involving class 
actions, radiation or toxic substance exposure, problems concerning the 
safeguarding of classified information, and any other matters involving 
issues which the contractor has reason to believe are of general 
importance to the Department or the government as a whole.

                   4.0 Alternative Dispute Resolution

    Contractors are expected to evaluate all matters for appropriate 
alternative dispute resolution (ADR) at various stages of an issue in 
dispute, e.g., before a case is filed, pre-discovery, after initial 
discovery and pre-trial. This evaluation should be done in coordination 
with the Department's ADR liaison if one has been established or 
appointed or the Department counsel if an ADR liaison has not been 
appointed. Contractors, contractor counsel, and Department counsel are 
also encouraged to consult with the Department's Director of the Office 
of Dispute Resolution. The Department anticipates that mediation will be 
the principal and most common method of alternative dispute resolution. 
In exceptional circumstances, arbitration may be appropriate. However, 
agreement to arbitrate should generally be consistent with the 
Administrative Dispute Resolution Act (incorporated in part at 5 U.S.C. 
571, et seq.) and Department guidance issued under that Act. When a 
decision to arbitrate is made, a statement fixing the maximum award 
amount should be agreed to in advance by the participants.

                      5.0 Cost Allowability Issues

    A determination of cost reasonableness may depend on a variety of 
considerations and circumstances. In accordance with 48 CFR (FAR) 
31.201-3, no presumption of reasonableness is attached to the incurrence 
of costs by a contractor. 10 CFR part 719 and this Appendix provide 
contractors guidelines for incurring legal costs to which adherence 
should result in a determination of allowability if the cost is 
otherwise allowable under the contract.

              5.1 Underlying Cause for Incurrence of Costs

    (A) While 10 CFR part 719 provides procedures for incurring legal 
costs, the determination of the reason for the incurrence of the legal 
costs, e.g., liability, fault or avoidability, is a separate 
determination. This latter determination may involve, for example, a 
possible finding of willful misconduct or lack of good faith by 
contractor management in the case of third party liability, or a finding 
of violation of a statute or regulation by the contractor in a 
governmental proceeding. The reason for the contractor incurring costs 
may be determinative of the allowability of the contractor's legal 
costs. For example, legal costs incurred by a contractor in defending 
actions brought by governmental agency may be covered by the Major Fraud 
Act, 41 U.S.C. 256(k), implemented as a cost principle at 48 CFR (FAR) 
31.205-47. In such cases, the statute may restrict the Department's 
authority to reimburse legal costs incurred by the contractor regardless 
of the outcome of the action.
    (B) In some cases, the final determination of allowability of legal 
costs cannot be made until a matter is fully resolved. This is 
particularly true in the case of legal defense costs covered by the 
restrictions in the Major Fraud Act and is also a common problem in 
cases covered by various whistleblower statutes and regulations. In 
certain circumstances, contract and cost principle language may permit 
conditional reimbursement of costs pending the outcome of the legal 
matter. Whether the Department makes conditional reimbursements or 
withholds any payment pending the outcome, legal costs ultimately 
reimbursed by the Department must satisfy the standards of cost 
reasonableness.

[[Page 402]]

                       5.2 Fees and Other Charges

    (A) Requests by retained legal counsel that are not in a direct 
contract with the Department for fee increases should be sent in writing 
to the contractor, who should review the request for reasonableness. If 
the contractor determines the request is reasonable, the contractor 
should seek approval for the request from Department counsel and the 
contracting officer before it authorizes any increase. Contractors 
should attempt to lock in rates for partners, associates and paralegals 
for at least a two-year period.
    (B) Costs listed in 10 CFR 719.33(c) are usually incorporated into 
the rate or fee structure. Consultants or experts hired by retained 
legal counsel who do not include any overhead or similar charges, such 
as computer time, in their base rate, must have those charges approved 
in advance by Department counsel and the contracting officer. Time 
charged by law students should be scrutinized for its efficiency and 
have prior authorization.
    (C) Travel time may be reimbursed at a full rate for the portion of 
time during which retained legal counsel actually performs work for 
which it was retained; any remaining travel time during normal working 
hours shall be reimbursed at 50 percent, except that in no event is 
travel time for time during which work was performed for other clients 
reimbursable. Also, for long distance travel that could be completed by 
various methods of transportation, i.e., car, train, or plane, only the 
charge for the overall fastest travel time will be considered 
reasonable.
    (D) For costs associated with the creation and use of computerized 
databases, contractors and retained legal counsel must ensure that the 
creation and use of computerized databases is necessary and cost-
effective. Potential use of databases originally created by the 
Department or its contractors for other purposes, but that can be used 
to assist a contractor or retained legal counsel in connection with a 
particular matter, should be considered and be coordinated with 
Department counsel.

      6.0 Role of Department Counsel as the Contracting Officer's 
                             Representative

    (A) An attorney from the field office or from Headquarters will be 
appointed a contracting officer's representative by the cognizant 
contracting officer. A contracting officer may designate other 
Government personnel to act as authorized representatives for functions 
not involving a change in the scope, price, terms or conditions of the 
contract. This designation is made in writing and contains specific 
instructions regarding the extent to which the representatives may take 
action for the contracting officer, and prohibits the representative 
from signing contractual documents. The contracting officer is the only 
person authorized to approve changes in any of the requirements under 
the contract.
    (B) Additional discussion of the authority and limitation of 
contracting officers can be found at 48 CFR (FAR) 1.602-1, and for 
contracting officer's representatives at 48 CFR (DEAR) 942.270-1. The 
clause, Technical Direction, 48 CFR (DEAR) 952.242-70, also discusses 
the responsibilities and limitations of a contracting officer's 
representative.

                    7.0 Future Amendments to Guidance

    The Office of the General Counsel may by memorandum provide 
additional guidance to contractors. These memoranda will serve as 
guidance for ``safe harbor'' practices for contractors procuring outside 
legal services.

     Attachment--Contractor Litigation and Legal Costs, Model Bill 
                        Certification and Format

                            1. Certification

    Bills or invoices should contain a certification signed by a 
representative of the retained legal counsel to the effect that:
    ``Under penalty of law, [the representative] acknowledges the 
expectation that the bill will be paid by the contractor and that the 
contractor will be reimbursed by the Federal Government through the U.S. 
Department of Energy, and, based on personal knowledge and a good faith 
belief, certifies that the bill is truthful and accurate, and that the 
services and charges set forth herein comply with the terms of 
engagement and the policies set forth in the Department of Energy's 
regulation and guidance on contractor legal management requirements, and 
that the costs and charges set forth herein are necessary.''

                          2. Model Bill Format

                                                   I--For Fees
----------------------------------------------------------------------------------------------------------------
                                                      Name or
         Date of service          Description of    initials of    Approved rate   Time charged    Amount  (rate
                                      service        attorney                                         x time)
----------------------------------------------------------------------------------------------------------------
                                           (See Note 1 to this table).
----------------------------------------------------------------------------------------------------------------


[[Page 403]]


                          II--For Disbursements
------------------------------------------------------------------------
                                    Description of
             Date                    disbursement            Amount
------------------------------------------------------------------------
                       (See Note 2 to this table).
------------------------------------------------------------------------

    Note 1--Description of Service: All fees must be itemized and 
described in sufficient detail and specificity to reflect the purpose 
and nature of the work performed (e.g., subject matter researched or 
discussed; names of participants of calls/meetings; type of documents 
reviewed).
    Note 2--Description of Disbursement: Description should be in 
sufficient detail to determine that the disbursement expense was in 
accordance with all applicable Department policies on reimbursement of 
contractor legal costs and the terms of engagement between the 
contractor and the retained legal counsel. The date the expense was 
incurred or disbursed should be listed rather than the date the expense 
was processed. The following should be itemized: copy charge (i.e., 
number of pages times a maximum of 10 cents per page); fax charges 
(date, phone number and actual amount); overnight delivery (date and 
amount); electronic research (date and amount); extraordinary postage 
(i.e., bulk or certified mail); court reporters; expert witness fees; 
filing fees; outside copying or binding charges; temporary help 
(assuming prior approval).
    Note 3--Receipts: Receipts for all expenses equal to or above $75 
must be attached.



PART 725_PERMITS FOR ACCESS TO RESTRICTED DATA--Table of Contents



                           General Provisions

Sec.
725.1 Purpose.
725.2 Applicability.
725.3 Definitions.
725.4 Interpretations.
725.5 Communications.
725.6 Categories of available information.
725.7 Specific waivers.

                              Applications

725.11 Applications.
725.12 Noneligibility.
725.13 Additional information.
725.14 Public inspection of applications.
725.15 Requirements for approval of applications.

                                 Permits

725.21 Issuance.
725.22 Scope of permit.
725.23 Terms and conditions of access.
725.24 Administration.
725.25 Term and renewal.
725.26 Assignment.
725.27 Amendment.
725.28 Action on application to renew or amend.
725.29 Suspension, revocation and termination of permits.
725.30 Exceptions and additional requirements.
725.31 Violations.

Appendix A to Part 725--Categories of Restricted Data Available

    Authority: Sec. 161 of the Atomic Energy Act of 1954, as amended, 68 
Stat. 943, 42 U.S.C. 2201.

    Source: 41 FR 56778, Dec. 30, 1976, unless otherwise noted.

                           General Provisions



Sec. 725.1  Purpose.

    This part establishes procedures and standards for the issuance of 
an Access Permit to any person subject to this part who requires access 
to Restricted Data applicable to civil uses of atomic energy for use in 
his business, trade or profession; provides for the amendment, renewal, 
suspension, termination and revocation of an Access Permit; and 
specifies the terms and conditions under which the Chief Health, Safety 
and Security Officer will issue the Permit.

[41 FR 56778, Dec. 30, 1976, as amended at 71 FR 68732, Nov. 28, 2006]



Sec. 725.2  Applicability.

    The regulations in this part apply to any person within or under the 
jurisdiction of the United States who desires access to Restricted Data 
for use in his business, profession or trade.



Sec. 725.3  Definitions.

    As used in this part:
    (a) Access Permit means a permit, issued by the Administrator 
authorizing access by the named permittee to Restricted Data applicable 
to civil uses of atomic energy in accordance with the terms and 
conditions stated on the permit.

[[Page 404]]

    (b) Act means the Atomic Energy Act of 1954 (68 Stat. 919), 
including any amendments thereto.
    (c) Category means a category of Restricted Data designated in 
appendix A to the regulations in this part.
    (d) Chief Health, Safety and Security Officer means the Chief 
Health, Safety and Security Officer or his duly authorized 
representatives.
    (e) DOE means the Department of Energy.
    (f) Permittee means the holder of a permit issued pursuant to the 
regulations in this part.
    (g) Person means (1) any individual, corporation, partnership, firm, 
association, trust, estate, public or private institution, group, 
Government agency other than DOE, any state or any political subdivision 
of, or any political entity within a state, or other entity; and (2) any 
legal successor, representative, agent, or agency of the foregoing.
    (h) Restricted Data means all data concerning (1) design, 
manufacture or utilization of atomic weapons; (2) the production of 
special nuclear material; or (3) the use of special nuclear material in 
the production of energy, but shall not include data declassified or 
removed from the Restricted Data category pursuant to section 142 of the 
Act.
    (i) Government Confidential Commercial Information means sensitive 
commercial information not including Restricted Data, generated by the 
government, the release of which could put the government at a 
competitive disadvantage in providing enrichment services.

[41 FR 56778, Dec. 30, 1976, as amended at 52 FR 30139, Aug. 13, 1987; 
71 FR 68732, Nov. 28, 2006]



Sec. 725.4  Interpretations.

    Except as specifically authorized by the Chief Health, Safety and 
Security Officer in writing no interpretation of the meaning of the 
regulations in this part by any officer or employee of DOE other than a 
written interpretation by the General Counsel will be recognized to be 
binding upon DOE.

[41 FR 56778, Dec. 30, 1976, as amended at 71 FR 68732, Nov. 28, 2006]



Sec. 725.5  Communications.

    All communications concerning this part should be addressed to the 
Chief Health, Safety and Security Officer, HS-1/Forrestal Building, U.S. 
Department of Energy, 1000 Independence Ave, SW., Washington, DC 20585.

[71 FR 68732, Nov. 28, 2006]



Sec. 725.6  Categories of available information.

    For administrative purposes DOE has categorized Restricted Data 
which will be made available to permittees in the categories as set 
forth in appendix A to this part. Top Secret information; information 
pertaining to the design, manufacture or utilization of atomic weapons; 
and defense information other than Restricted Data are not included in 
these categories and will not be made available under this part.



Sec. 725.7  Specific waivers.

    The Chief Health, Safety and Security Officer may, upon application 
of any interested party, grant such waivers from the requirements of 
this part as he determines are authorized by law and will not constitute 
an undue risk to the common defense and security.

[41 FR 56778, Dec. 30, 1976, as amended at 71 FR 68732, Nov. 28, 2006]

                              Applications



Sec. 725.11  Applications.

    (a) Any person desiring access to Restricted Data pursuant to this 
part should submit an application (Form 378), in triplicate, for an 
access permit to the Chief Health, Safety and Security Officer, HS-1/
Forrestal Building, U.S. Department of Energy, 1000 Independence Ave, 
SW., Washington, DC 20585.
    (b) Where an individual desires access to Restricted Data for use in 
the performance of his duties as an employee, the application for an 
access permit must be filed in the name of his employer.
    (c) Self-employed private consultants, desiring access to Restricted 
Data, must file the application in their own name for an individual 
access permit.

[[Page 405]]

    (d) Each application should contain the following information:
    (1) Name of applicant (unincorporated subsidiaries or divisions of a 
corporation must apply in the name of the corporation);
    (2) Address of applicant;
    (3) Description of business or occupation of applicant; and
    (4)(i) If applicant is an individual, state citizenship.
    (ii) If applicant is a partnership, state name, citizenship and 
address of each partner and the principal location where the partnership 
does business.
    (iii) If applicant is a corporation or an unincorporated 
association, state:
    (A) The state where it is incorporated or organized and the 
principal location where it does business;
    (B) The names, addresses and citizenship of its directors and of its 
principal officers;
    (C) Whether it is owned, controlled or dominated by an alien, a 
foreign corporation, or foreign government, and if so, give details.
    (iv) If the applicant is acting as agent or representative of 
another person in filing the application, identify the principal and 
furnish information required under this subparagraph with respect to 
such principal;
    (5) Total number of full-time employees;
    (6) Classification of Restricted Data (Confidential or Secret) to 
which access is requested;
    (7) Potential use of the Restricted Data in the applicant's 
business, profession or trade. If access to Secret Restricted Data is 
requested, list the specific categories by number and furnish detailed 
reasons why such access within the specified categories is needed by the 
applicant. The need for Secret information should be stated by 
describing its proposed use in specific research, design, planning, 
construction, manufacturing, or operating projects; in activities under 
licenses issued by Nuclear Regulatory Commission; in studies or 
evaluations planned or under way; or in work or services to be performed 
for other organizations. In addition, if access to secret restricted 
data in category C-65, plutonium production, or restricted data in 
category C-24, isotope separation, is requested, the application should 
also include sufficient information to satisfy the requirements of Sec. 
725.15(b) (2) or (3), as the case may be.''
    (8) Principal Location(s) at which Restricted Data will be used.
    (e) Applications should be signed by a person authorized to sign for 
the applicant.
    (f) Each application shall contain complete and accurate disclosure 
with respect to the real party or parties in interest and as to all 
other matters and things required to be disclosed.

[41 FR 56778, Dec. 30, 1976, as amended at 71 FR 68732, Nov. 28, 2006]



Sec. 725.12  Noneligibility.

    The following persons are not eligible to apply for an access 
permit:
    (a) Corporations not organized under the laws of the United States 
or a political subdivision thereof.
    (b) Any individual who is not a citizen of the United States.
    (c) Any partnership not including among the partners one or more 
citizens of the United States; or any other unincorporated association 
not including one or more citizens of the United States among its 
principal officers.
    (d) Any organization which is owned, controlled or dominated by the 
Government of, a citizen of, or an organization organized under the laws 
of a country or area listed as a Subgroup A country or destination in 
Sec. 371.3 (15 CFR 371.3) of the Comprehensive Export Schedule of the 
United States Department of Commerce.
    (e) Persons subject to the jurisdiction of the United States who are 
not doing business within the United States.



Sec. 725.13  Additional information.

    The Chief Health, Safety and Security Officer may, at any time after 
the filing of the original application and before the termination of the 
permit, require additional information in order to enable the Chief 
Health, Safety and Security Officer to determine whether the permit 
should be granted or denied or whether it should be modified or revoked.

[41 FR 56778, Dec. 30, 1976, as amended at 71 FR 68732, Nov. 28, 2006]

[[Page 406]]



Sec. 725.14  Public inspection of applications.

    Applications and documents submitted to DOE in connection with 
applications may be made available for public inspection in accordance 
with the regulations contained in part 702 of this chapter.



Sec. 725.15  Requirements for approval of applications.

    (a) An application for an access permit authorizing access to 
confidential restricted data in the categories set forth in appendix A 
of this part (except C-91 and C-24) will be approved only if the 
application demonstrates that the applicant has a potential use or 
application for such data in his business, trade, or profession and has 
filed a complete application form.
    (b)(1) An application for an access permit authorizing access to 
restricted data in category C-24 or secret restricted data in other 
categories will be approved only if the applicant has a need for such 
data in his business, trade, or profession and has filed a complete 
application form.
    (2) An application for an access permit authorizing access to Secret 
Restricted Data in category C-65 Plutonium Production will be approved 
only if the application demonstrates also that the applicant:
    (i) Is directly engaged in a substantial effort to develop, design, 
build or operate a chemical processing plant or other facility related 
to his participation in the peaceful uses of atomic energy for which 
such production rate and cost data are needed; or
    (ii) Is furnishing to a permittee having access to C-65 under 
paragraph (b)(2)(i) of this section, substantial scientific, engineering 
or other professional services to be used by said permittee in carrying 
out the activities for which said permittee received access to category 
C-65.
    (3) An application for an access permit authorizing access to 
Restricted Data in category C-24, isotope separation--subcategory A or 
B--will be approved only if the application demonstrates also that the 
applicant:
    (i) Possesses technical, managerial and financial qualifications 
demonstrating that the applicant is potentially capable of undertaking 
or participating significantly in the construction and/or operation of 
production or manufacturing facilities and offers reasonable assurance 
of adequacy of resources to carry on, alone or with others, uranium 
enrichment on a production basis or the large-scale manufacture or 
assembly of precision equipment systems, or is potentially capable of 
utilizing centrifuge machines in its business for uranium enrichment or 
for purposes other than uranium enrichment; and is not subject to 
foreign ownership, control, or influence; and
    (A) For subcategory A, desires to determine its interest in 
participating significantly in a substantial effort to develop, design, 
build, and operate a uranium enrichment facility or a facility for the 
manufacture of uranium enrichment equipment.
    (B) For subcategory B, proposes to (1) participate significantly in, 
or is directly participating significantly in, a substantial effort to 
evaluate alternative processes, develop, design, build, and operate a 
uranium enrichment facility or a facility for the manufacture of uranium 
enrichment equipment, or (2) utilize centrifuge machines and related 
equipment in its business for uranium enrichment or for purposes other 
than uranium enrichment, or
    (ii) Is furnishing to a permittee having access to Category C-24 
under the paragraph (b)(3)(i) of this section substantial scientific, 
engineering, or other professional services to be used by said permittee 
in carrying out the activities for which said permittee received access 
to Category C-24.
    (4) An application for an access permit authorizing access to 
Confidential and Secret Restricted Data in C-91, Nuclear Reactors for 
Rocket Propulsion, will be approved only if the application demonstrates 
also that the applicant:
    (i) Possesses qualifications demonstrating that he is capable of 
making a contribution to research and development in the field of 
nuclear reactors for rocket propulsion and is directly engaged in or 
proposes to engage in a substantial research and development program in 
such field of work; or
    (ii) Is engaged in or proposes to engage in a substantial study 
program in the field of nuclear reactors for rocket

[[Page 407]]

propulsion preparatory to the submission of a research and development 
proposal to DOE; or
    (iii) Is furnishing to a permittee having access under paragraph 
(b)(4) (i) or (ii) of this section substantial scientific, engineering 
or other professional services to be used by that permittee in a study 
or research and development program for which said permittee received 
access.

[41 FR 56778, Dec. 30, 1976, as amended at 52 FR 30139, Aug. 13, 1987]

                                 Permits



Sec. 725.21  Issuance.

    (a) Upon a determination that an application meets the requirements 
of this regulation, the Chief Health, Safety and Security Officer will 
issue to the applicant an access permit on Form DOE 379.
    (b) An Access Permit is not an access authorization. It does not 
authorize any individual not having an appropriate DOE access 
authorization to receive Restricted Data. See Sec. 725.24 and part 1016 
of this title.

[41 FR 56778, Dec. 30, 1976, as amended at 71 FR 68732, Nov. 28, 2006]



Sec. 725.22  Scope of permit.

    (a) All access permits will as a minimum authorize access, subject 
to the terms and conditions of the access permit to confidential 
restricted data in all of the categories set forth in appendix A to this 
part, except C-91 and C-24.
    (b) In addition, access permits may authorize access, subject to the 
terms and conditions of the access permit to such Secret Restricted Data 
as is included within the particular category or categories specified in 
the permit.
    (c) In addition, access permits may authorize access, subject to the 
terms and conditions of the access permit, to such government 
confidential commercial information as is included within the particular 
category or categories specified in the permit.

[41 FR 56778, Dec. 30, 1976, as amended at 52 FR 30139, Aug. 13, 1987]



Sec. 725.23  Terms and conditions of access.

    (a) Neither the United States, nor DOE, nor any person acting on 
behalf of DOE makes any warranty or other representation, expressed or 
implied, (1) with respect to the accuracy, completeness or usefulness of 
any information made available pursuant to an access permit, or (2) that 
the use of any such information may not infringe privately owned rights.
    (b) The Chief Health, Safety and Security Officer, on behalf of DOE, 
hereby waives such rights with respect to any invention or discovery as 
it may have pursuant to section 152 of the Act by reason of such 
invention or discovery having been made or conceived in the course of, 
in connection with, or resulting from access to Restricted Data received 
under the terms of an access permit. (Note provisions of Sec. 
725.23(d).)
    (c) Each permittee shall:
    (1) Comply with all applicable provisions of the Atomic Energy Act 
of 1954, as amended, and with parts 810 and 1016 of this title and with 
all other applicable rules, regulations, and orders of DOE, including 
such rules, regulations, and orders as DOE may adopt or issue to 
effectuate the policies specified in the act directing DOE to strengthen 
free competition in private enterprise and avoid the creation or 
maintenance of a situation inconsistent with the antitrust laws.
    (2) Be deemed to have waived all claims for damages under section 
183 of title 35 U.S. Code by reason of the imposition of any secrecy 
order on any patent application and all claims for just compensation 
under section 173 of the Atomic Energy Act of 1954, with respect to any 
invention or discovery made or conceived in the course of, in connection 
with or as a result of access to Restricted Data received under the 
terms of the access permit;
    (3) Be deemed to have waived any and all claims against the United 
States, DOE and all persons acting on behalf of DOE that might arise in 
connection with the use, by the applicant, of any and all information 
supplied by them pursuant to the access permit;

[[Page 408]]

    (4) Obtain and preserve in his files written agreements from all 
individuals who will have access to Restricted Data under his access 
permit. The agreement shall be as follows:

    In consideration for receiving access to Restricted Data under the 
access permit issued by the Chief Health, Safety and Security Officer, I 
hereby agree to:
    (a) Waive all claims for damages under section 183 of title 35 U.S. 
Code by reason of the imposition of any secrecy order on any patent 
application, and all claims for just compensation under section 173 of 
the Atomic Energy Act of 1954, with respect to any invention or 
discovery made or conceived in the course of, in connection with or 
resulting from access to Restricted Data received under the terms of the 
access permit issued to (insert the name of the holder of the access 
permit);
    (b) Waive any and all claims against the United States, DOE, and all 
persons acting on behalf of DOE that might arise in connection with the 
use, by me, of any and all information supplied by them pursuant to the 
access permit issued to (insert the name of the holder of the access 
permit).


In case of an access permit authorizing access to restricted data in 
category C-24, isotope separation, the agreement shall also provide for 
such requirements as the permittee considers necessary for purposes of 
fulfilling its obligations under paragraph (d) of this section.
    (5) Pay all established charges for personnel access authorizations, 
DOE consulting services, publication and reproduction of documents, and 
such other services as DOE may furnish in connection with the access 
permit.
    (d) The following terms and conditions are applicable to an access 
permit authorizing access to restricted data in category C-24, isotope 
separation irrespective of whether access to DOE's restricted data 
information is desired:
    (1) The permittee agrees to grant a nonexclusive license at 
reasonable royalties to the United States and, at the request of DOE, to 
domestic and foreign persons, to use in the production or enrichment of 
special nuclear material any U.S. patent or any U.S. patent application 
(otherwise in condition for allowance except for a secrecy order 
thereon) on any invention or discovery made or conceived by the 
permittee, its employees, or others engaged by the permittee in the 
course of the permittee's work under the access permit, or as a result 
of access to data or information made available by DOE.
    (2) The permittee agrees to grant to the United States, and, at the 
request of DOE, to domestic and foreign persons, the right at reasonable 
royalties to use for research, development, or manufacturing programs 
for the production or enrichment of special nuclear material, any 
technical information or data, including economic evaluations thereof, 
of a proprietary nature developed by the permittee, its employees, or 
others engaged by the permittee in the course of the permittee's work 
under the access permit or as a result of access to data or information 
made available by DOE and not covered by a U.S. patent or U.S. patent 
application referred to in paragraph (d)(1) of this section. If DOE 
disseminates any such proprietary technical information or data in its 
possession to any of its contractors for use in any DOE research, 
development, production, or manufacturing programs, it will do so under 
contractual provisions pursuant to which the contractor would undertake 
to use this information only for the work under the pertinent DOE 
contract. Notwithstanding the foregoing provisions of this subparagraph, 
the permittee waives any claim against DOE for compensation or 
otherwise, in connection with any use or dissemination of information or 
data not specifically identified and claimed by the permittee as 
proprietary in a written notice to DOE at the time of the furnishing of 
the information or data to DOE. As used in this subparagraph, the term 
``technical information or data, including economic evaluations thereof, 
of a proprietary nature'' means information or data which:
    (i) Is not the property of the Government by virtue of any 
agreement;
    (ii) Concerns the details of trade secrets or manufacturing 
processes which the permittee has protected from us by others; and
    (iii)(A) Is specifically identified as proprietary at the time it is 
made available to DOE.
    (B) Technical information or data shall not be deemed proprietary in 
nature whenever substantially the same

[[Page 409]]

technical information is available to DOE which has been prepared, 
developed or furnished as nonproprietary information by another source 
independently of the proprietary information and data furnished by the 
permittee.
    (3) If the amount of reasonable royalties provided for in paragraphs 
(d) (1) and (2) of this section cannot be agreed upon, the permittee 
agrees that such amount shall be determined by the Administrator under 
the provisions of section 157c of the Atomic Energy Act of 1954, as 
amended.
    (4) In the event domestic commercial uranium enriching services are 
provided by persons other than an agency of the United States, the 
permittee agrees not to require the United States to pay the royalties 
provided for in paragraphs (d) (1) and (2) of this section.
    (5) The acceptance, exercise, or use of the licenses or rights 
provided for in paragraphs (d) (1) and (2) of this section shall not 
prevent the Government, at any time, from contesting their validity, 
scope or enforceability.
    (6) The permittee agrees, during the term of the access permit, to 
make quarterly reports to DOE in writing, in reasonable detail, 
respecting all technical information or data, including economic 
evaluations thereof, which the permittee or DOE considers may be of 
interest to DOE, including reports of patent applications on inventions 
or discoveries and of technical information and data of a proprietary 
nature. These reports will cover the results of the permittee's work 
under the access permit or as a result of data or information made 
available by DOE. The foregoing provisions of this subparagraph shall be 
subject to the provisions of paragraphs (d) (1) and (2) of this section.
    (7) The permittee agrees to make available to DOE, at all reasonable 
times during the term of the access permit, for inspection by DOE 
personnel, or by mutual agreement, others on behalf of DOE, all 
experimental equipment and technical information or data developed by 
the permittee, its employees, or others engaged by the permittee, in the 
course of the permittee's work under the access permit or as a result of 
data or information made available by DOE. The foregoing provision of 
this subparagraph shall be subject to the provisions of paragraphs (d) 
(1) and (2) of this section.
    (8) The permittee agrees to pay such reasonable compensation as DOE 
may elect to charge for the commercial use of its inventions and 
discoveries including related data and technology and, except for an 
applicant qualifying for a permit pursuant to Sec. 725.15(b)(3)(ii), 
agrees to pay $25,000 for an access permit authorizing access to 
restricted data in subcategory B.
    (9) Except as may be otherwise authorized by DOE, the permittee 
agrees not to disseminate to persons not granted access by DOE, 
restricted data or government confidential commercial information made 
available to the permittee by DOE or restricted data developed by the 
permittee, its employees, or others engaged by the permittee in the 
course of the permittee's work under the access permit or as a result of 
data or information made available by DOE.
    (10) The granting of an access permit does not constitute any 
assurance, direct or implied, that the Nuclear Regulatory Commission 
will grant the permittee a license for a production facility or any 
other license.
    (11) In the event the permittee is engaged by DOE to perform work 
for DOE in the field of the separation of isotopes, the permittee agrees 
to undertake such measures as DOE may require for the separation of its 
activities under the access permit from its work for DOE.

[41 FR 56778, Dec. 30, 1976, as amended at 52 FR 30139, Aug. 13, 1987; 
71 FR 68732, Nov. 28, 2006]



Sec. 725.24  Administration.

    With respect to each permit issued pursuant to the regulations in 
this part, the Chief Health, Safety and Security Officer will designate 
a DOE or National Nuclear Security Administration office which will:
    (a) Process all personnel access authorizations requested in 
connection with the permit;
    (b) Review the procedures submitted by the Applicant, in accordance 
with part 1016 of this title, for the safeguarding of Restricted Data; 
and

[[Page 410]]

    (c) Provide information to the permittee with respect to the sources 
and locations of Restricted Data available under this permit and to 
assist the permittee in other matters pertaining to the administration 
of his permit.

[41 FR 56778, Dec. 30, 1976, as amended at 71 FR 68732, Nov. 28, 2006]



Sec. 725.25  Term and renewal.

    (a) Each access permit will be issued for a two year term, unless 
otherwise stated in the permit.
    (b) Applications for renewal shall be filed in accordance with Sec. 
725.11. Each renewal application must be complete, without reference to 
previous applications. In any case in which a permittee has filed a 
properly completed application for renewal more than thirty (30) days 
prior to the expiration of his existing permit, such existing permit 
shall not expire until the application for a renewal has been finally 
acted upon by the Chief Health, Safety and Security Officer.

[41 FR 56778, Dec. 30, 1976, as amended at 71 FR 68732, Nov. 28, 2006]



Sec. 725.26  Assignment.

    An access permit is nontransferable and nonassignable.



Sec. 725.27  Amendment.

    An access permit may be amended from time to time upon application 
by the permittee. An application for amendment may be filed, in 
triplicate, in letter form and shall be signed by an individual 
authorized to sign on behalf of the applicant. The term of an access 
permit shall not be altered by an amendment thereto.



Sec. 725.28  Action on application to renew or amend.

    In considering an application by a permittee to review or amend his 
permit, the Chief Health, Safety and Security Officer will apply the 
criteria set forth in Sec. 725.15. Failure of an applicant to reply to 
an DOE request for additional information concerning an application for 
renewal or amendment within 60 days shall result in a rejection of the 
application without prejudice to resubmit a properly completed 
application at a later date.

[41 FR 56778, Dec. 30, 1976, as amended at 71 FR 68732, Nov. 28, 2006]



Sec. 725.29  Suspension, revocation and termination of permits.

    The Chief Health, Safety and Security Officer may revoke or suspend 
any access permit for any material false statement in the application or 
in any report submitted to DOE pursuant to the regulations in this part 
or because of conditions or facts which would have warranted a refusal 
to grant the permit in the first instance, or for violation of any of 
the terms and conditions of the Atomic Energy Act of 1954 or rules, 
regulations or orders issued pursuant thereto. A permittee should 
request termination of his permit when he no longer requires Restricted 
Data for use in his business, trade or profession.

[41 FR 56778, Dec. 30, 1976, as amended at 71 FR 68732, Nov. 28, 2006]



Sec. 725.30  Exceptions and additional requirements.

    Notwithstanding any other provision in the regulations in this part, 
the Chief Health, Safety and Security Officer may deny an application 
for an access permit or suspend or revoke any access permit, or 
incorporate additional conditions or requirements in any access permit, 
upon finding that such denial, revocation or the incorporation of such 
conditions and limitations is necessary or appropriate in the interest 
of the common defense and security or is otherwise in the public 
interest.

[41 FR 56778, Dec. 30, 1976, as amended at 71 FR 68732, Nov. 28, 2006]



Sec. 725.31  Violations.

    An injunction or other court order may be obtained prohibiting any 
violation of any provision of the Act or any regulation or order issued 
thereunder. Any person who willfully violates any provision of the Act 
or any regulation or order issued thereunder may be guilty of a crime 
and, upon conviction, may be punished by fine or imprisonment or both, 
as provided by law.

[[Page 411]]



  Sec. Appendix A to Part 725--Categories of Restricted Data Available

    C-24 Isotope separation. This category is divided into subcategories 
A and B.
    Subcategory A includes information in summary form concerning the 
status and potential of the gaseous diffusion and gas centrifuge 
processes for the separation of uranium isotopes.
    Subcategory B includes information on the following:
    a. Any aspect of separating one or more isotopes of uranium from a 
composition containing a mixture of isotopes of that element by the gas 
centrifuge or gaseous diffusion processes.
    b. Design, construction, and operation of any plant, facility or 
device capable of separating by the gas centrifuge or gaseous diffusion 
processes one or more isotopes of uranium from a composition containing 
a mixture of isotopes of that element, including means and methods of 
transporting materials from one to another device.

    C-44 Nuclear Technology. This category includes classified technical 
information concerning nuclear technology. It may contain information on 
the following:
    a. Materials, including metals, ceramics, organic and inorganic 
compounds. Included are such technical areas as the technology and 
fabrication of fuel elements, corrosion studies, cladding techniques and 
radiation studies.
    b. Chemistry, chemical engineering and radiochemistry of all the 
elements and their compounds. Included are techniques and processes of 
chemical separations, radioactive waste handling and feed material 
processing.
    c. Reactor physics, engineering and technology including theory, 
design, criticality studies and operation of reactors, reactor systems 
and reactor components.
    d. Reserved.
    e. Lithium isotope separation technology. This subcategory includes 
classified technical information on the separation of lithium isotopes 
by using counter-current flows of lithium amalgam and aqueous lithium 
hydroxide solution in packed columns. Not included is information 
regarding plant design and operating conditions from which total 
production rates or design capacity of the lithium isotope separation 
plant (Colex) in Oak Ridge, Tennessee, can be inferred. In addition to 
the other requirements of this part, access permits for Restricted Data 
in this subcategory will be approved, provided the permittee:
    1. Demonstrates that it is not a corporation or entity owned, 
controlled or dominated by an alien, a foreign corporation, or a foreign 
government, and
    2. Agrees to insertion in his access permit of the terms and 
conditions:
    (i) Set forth in paragraphs (a) and (b) of Sec. 725.23 of this 
part;
    (ii) Set forth in paragraph (c) of Sec. 725.23 of this part, 
amended by deleting the phrase ``category C-24, isotope separation,'' 
and inserting in lieu thereof the phrase ``subcategory C-44e, lithium 
isotope separation technology'';
    (iii) Set forth in paragraph (d) of Sec. 725.23 of this part, 
amended by:
    (A) Deleting the phrases ``production or enrichment of special 
nuclear material'' and ``separation of isotopes'' wherever they appear, 
and inserting in lieu thereof the phrase ``separation of isotopes of 
lithium'';
    (B) Deleting the phrase ``domestic commercial uranium enriching 
services are provided by,'' and inserting in lieu thereof the phrase 
``domestic lithium isotope separation capacity becomes available to.''
    This category does not include information which reveals or from 
which can be calculated actual or planned (as distinguished from design) 
capacities, production rates and unit costs for the plutonium production 
program.

    C-65 Plutonium Production. This category includes information on 
reactor, fuel element and separations technology which reveals or from 
which can be calculated actual or planned (as distinguished from design) 
capacities, production rates and unit costs for the Hanford and Savannah 
River production facilities.
    Technology which does not reveal or enable calculation of production 
rates and unit costs of Hanford or Savannah River production facilities 
is categorized in C-44 Nuclear Technology.

    C-90 Nuclear Reactors for Ram-Jet Propulsion. This category includes 
information on:
    a. Programs pertaining to the development of nuclear reactors for 
application to ram-jet propulsion systems including theory and/or 
design, test philosophy procedures and/or results.
    b. Fabrication technology and evaluation of performance or 
characteristics of materials or components for such reactors.
    c. Controls, control systems and instrumentation relating to the 
design or technology of such reactors.
    d. Data pertaining to heat transfer, propellant kinetics or 
corrosion and erosion of materials under conditions of high temperature, 
high gas flows or other environmental conditions characteristic of ram-
jet propulsion systems.
    This category does not include information on:
    a. Design details of weapons systems or nuclear warheads.
    b. Military operational techniques or characteristics.

[[Page 412]]

    c. General aspects of nuclear ram-jet missiles, such as payload, 
aerodynamic characteristics, guidance systems, physical size, gross 
weight, thrust and information of this kind which is associated with 
utilization of a nuclear ram-jet propulsion system.

    C-91 Nuclear Reactors for Rocket Propulsion. This category includes 
information on:
    a. Programs pertaining to nuclear reactors for rocket propulsion, 
i.e., missile propulsion, theory and/design, test philosophy procedures 
and/or results.
    b. Design, fabrication technology and evaluation of performance or 
characteristics of material, components, or subsystems or nuclear rocket 
reactors.
    c. Controls, control systems and instrumentation relating to the 
design or technology of rocket reactor systems.
    d. Data pertaining to heat transfer, propellant kinetics or 
corrosion and erosion of rocket reactor system materials under 
conditions of high temperature, high gas flows, or other environmental 
conditions characteristic of rocket reactors.
    This category does not include information on:
    a. Design details of weapons systems or nuclear warheads.
    b. Military operational techniques or characteristics.
    c. General aspects of payload and aerodynamic characteristics.
    d. Design details and development, information of components and 
subsystems of the nuclear rocket engine other than that associated with 
the reactor system.

    C-92 Systems for Nuclear Auxiliary Power (SNAP). This category 
includes information on:
    a. Isotopic SNAP Program, including theory, design, research and 
development, fabrication, test procedures and results for the device, 
including power conversion device and the fuels used.
    b. Reactor SNAP Program, including theory, design, research and 
development, fabrication, test procedures and results for the reactor, 
including the directly associated power conversion device when developed 
by DOE.
    This category does not include that technical and scientific data 
developed under the SNAP Advanced Concept Program which should be 
reported in C-93.

    C-93 Advanced Concepts for Future Application.

    C-93a Reactor Experiments. This category includes classified 
technical information developed in the pursuit of work on new or 
advanced concepts of reactors or components which DOE considers 
essential to future growth or for general application to future 
generations of reactors. Classified information developed in the pursuit 
of work on the lithium cooled reactor experiment is an example of the 
type of information to be reported in this category, i.e., information 
resulting from an experimental reactor project or component development 
which may have many future applications but which is not currently being 
pursued to meet the specific needs of an approved requirement for which 
other information categories have been provided. For example, classified 
technical information developed in the pursuit of work on Naval, Ram-Jet 
or Rocket nuclear reactors would not be reported here but under their 
respective specific categories. This category will include classified 
technical information on the following:
    a. Theory, design, and performance, either estimated or actual.
    b. Design details, composition and performance characteristics of 
major components (e.g., fuel media, reflectors, moderators, heat 
exchangers, pressure shells or containment devices, control rods, 
conversion devices, instrumentation and shielding).
    c. Material (metals, ceramics and compounds) development, alloying, 
cladding, corrosion, erosion, radiation studies and fabrication 
techniques.
    d. Chemistry, including chemical engineering, processes and 
techniques. Reactor physics, engineering and criticality studies.

    C-93b Conversion Devices. This category includes classified 
technical information developed in the pursuit of studies, designs, 
research and development, fabrication and operation of any energy 
conversion device to be used with nuclear energy sources which is not 
being applied to a specific system development project.

    C-94 Military Compact Reactor (MCR). This category includes 
classified technical information on the actual or planned Military 
Compact Reactor and its components developed in the pursuit of studies, 
designs, research and development, fabrication, and operation of the 
reactor system or its components.
    Examples of the areas of information included are:
    a. Reactor core physics.
    b. Fuel elements and fuel element components.
    c. Moderator and reflector details.
    d. Data on primary coolant system.
    e. Radiation shield.
    f. Controls and instrumentation.
    This category does not include information on military operational 
characteristics or techniques.

[41 FR 56778, Dec. 30, 1976, as amended at 44 FR 37939, June 29, 1979]

[[Page 413]]



PART 727_CONSENT FOR ACCESS TO INFORMATION ON DEPARTMENT OF ENERGY COMPUTERS--Table of Contents



Sec.
727.1 What is the purpose and scope of this part?
727.2 What are the definitions of the terms used in this part?
727.3 To whom does this part apply?
727.4 Is there any expectation of privacy applicable to a DOE computer?
727.5 What acknowledgment and consent is required for access to 
          information on DOE computers?
727.6 What are the obligations of a DOE contractor?

    Authority: 42 U.S.C. 7101, et seq.; 42 U.S.C. 2011, et. seq.; 50 
U.S.C. 2425, 2483; E.O. No. 12958, 60 FR 19825, 3 CFR, 1995 Comp., p. 
333; and E.O. 12968, 60 FR 40245, 3 CFR, 1995 Comp., p. 391.

    Source: 71 FR 40884, July 19, 2006, unless otherwise noted.



Sec. 727.1  What is the purpose and scope of this part?

    (a) The purpose of this part is to establish minimum requirements 
applicable to each individual granted access to a DOE computer or to 
information on a DOE computer, including a requirement for written 
consent to access by an authorized investigative agency to any DOE 
computer used in the performance of the individual's duties during the 
term of that individual's employment and for a period of three years 
thereafter.
    (b) Section 727.4 of this part also applies to any person who uses a 
DOE computer by sending an e-mail message to such a computer.



Sec. 727.2  What are the definitions of the terms used in this part?

    For purposes of this part:
    Authorized investigative agency means an agency authorized by law or 
regulation to conduct a counterintelligence investigation or 
investigations of persons who are proposed for access to classified 
information to ascertain whether such persons satisfy the criteria for 
obtaining and retaining access to such information.
    Computer means desktop computers, portable computers, computer 
networks (including the DOE network and local area networks at or 
controlled by DOE organizations), network devices, automated information 
systems, or other related computer equipment owned by, leased, or 
operated on behalf of the DOE.
    DOE means the Department of Energy, including the National Nuclear 
Security Administration.
    DOE computer means any computer owned by, leased, or operated on 
behalf of the DOE.
    Individual means an employee of DOE or a DOE contractor, or any 
other person who has been granted access to a DOE computer or to 
information on a DOE computer, and does not include a member of the 
public who sends an e-mail message to a DOE computer or who obtains 
information available to the public on DOE Web sites.
    User means any person, including any individual or member of the 
public, who sends information to or receives information from a DOE 
computer.



Sec. 727.3  To whom does this part apply?

    (a) This part applies to DOE employees, DOE contractors, DOE 
contractor and subcontractor employees, and any other individual who has 
been granted access to a DOE computer or to information on a DOE 
computer.
    (b) Section 727.4 of this part also applies to any person who uses a 
DOE computer by sending an e-mail message to such computer.



Sec. 727.4  Is there any expectation of privacy applicable to a DOE computer?

    Notwithstanding any other provision of law (including any provision 
of law enacted by the Electronic Communications Privacy Act of 1986), no 
user of a DOE computer shall have any expectation of privacy in the use 
of that DOE computer.



Sec. 727.5  What acknowledgment and consent is required for access to information on DOE computers?

    An individual may not be granted access to information on a DOE 
computer unless:
    (a) The individual has acknowledged in writing that the individual 
has no expectation of privacy in the use of a DOE computer; and

[[Page 414]]

    (b) The individual has consented in writing to permit access by an 
authorized investigative agency to any DOE computer used during the 
period of that individual's access to information on a DOE computer and 
for a period of three years thereafter.



Sec. 727.6  What are the obligations of a DOE contractor?

    (a) A DOE contractor must ensure that neither its employees nor the 
employees of any of its subcontractors has access to information on a 
DOE computer unless the DOE contractor has obtained a written 
acknowledgment and consent by each contractor or subcontractor employee 
that complies with the requirements of Sec. 727.5 of this part.
    (b) A DOE contractor must maintain a file of original written 
acknowledgments and consents executed by its employees and all 
subcontractors employees that comply with the requirements of Sec. 
727.5 of this part.
    (c) Upon demand by the cognizant DOE contracting officer, a DOE 
contractor must provide an opportunity for a DOE official to inspect the 
file compiled under this section and to copy any portion of the file.
    (d) If a DOE contractor violates the requirements of this section 
with regard to a DOE computer with Restricted Data or other classified 
information, then the DOE contractor may be assessed a civil penalty or 
a reduction in fee pursuant to section 234B of the Atomic Energy Act of 
1954 (42 U.S.C. 2282b).



PART 733_ALLEGATIONS OF RESEARCH MISCONDUCT--Table of Contents



Sec.
733.1 Purpose.
733.2 Scope.
733.3 Definitions.
733.4 Research misconduct requirements.
733.5 Allegations received by DOE.
733.6 Consultation with the DOE Office of the Inspector General.
733.7 Referral to the contracting officer.
733.8 Contracting officer procedures.

    Authority: 42 U.S.C. 2201; 7254; 7256; 7101 et seq.; 50 U.S.C. 2401 
et seq.

    Source: 70 FR 37014, June 28, 2005, unless otherwise noted.



Sec. 733.1  Purpose.

    The purpose of this part is to set forth a general statement of 
policy on the treatment of allegations of research misconduct consistent 
with Federal Policy on Research Misconduct established by the White 
House Office of Science and Technology Policy on December 6, 2000 (65 FR 
76260-76264).



Sec. 733.2  Scope.

    This part applies to allegations of research misconduct with regard 
to scientific research conducted under a Department of Energy contract 
or an agreement.



Sec. 733.3  Definitions.

    The following terms used in this part are defined as follows:
    Contract means an agreement primarily for the acquisition of goods 
or services that is subject to the Federal Acquisition Regulations (48 
CFR Chapter 1) and the DOE Acquisition Regulations (48 CFR Chapter 9).
    DOE means the U.S. Department of Energy (including the National 
Nuclear Security Administration).
    DOE Element means a major division of DOE, usually headed by a 
Presidential appointee, which has a delegation of authority to carry out 
activities by entering into contracts or financial assistance 
agreements.
    Fabrication means making up data or results and recording or 
reporting them.
    Falsification means manipulating research materials, equipment, or 
processes, or changing or omitting data or results such that the 
research is not accurately represented in the research record.
    Financial assistance agreement means an agreement the primary 
purpose of which is to provide appropriated funds to stimulate an 
activity, including but not limited to, grants and cooperative 
agreements pursuant to 10 CFR Part 600.
    Finding of research misconduct means a determination, based on a 
preponderance of the evidence, that research misconduct has occurred. 
Such a finding requires a conclusion that there has been a significant 
departure from

[[Page 415]]

accepted practices of the relevant research community and that it be 
knowingly, intentionally, or recklessly committed.
    Plagiarism means the appropriation of another person's ideas, 
processes, results, or words without giving appropriate credit.
    Research means all basic, applied, and demonstration research in all 
fields of science, engineering, and mathematics, such as research in 
economics, education, linguistics, medicine, psychology, social 
sciences, statistics, and research involving human subjects or animals.
    Research misconduct means fabrication, falsification, or plagiarism 
in proposing, performing, or reviewing research, or in reporting 
research results, but does not include honest error or differences of 
opinion.
    Research record means the record of all data or results that embody 
the facts resulting from scientists' inquiries, including, but not 
limited to, research proposals, laboratory records, both physical and 
electronic, progress reports, abstracts, theses, oral presentations, 
internal reports, and journal articles



Sec. 733.4  Research misconduct requirements.

    DOE intends to apply the research misconduct policy set forth in 65 
FR 76260-76264 by including appropriate research misconduct requirements 
in contracts and financial assistance awards that make contractors and 
financial recipients primarily responsible for implementing the policy 
in dealing with allegations of research misconduct in connection with 
the proposal, performance or review of research for DOE .



Sec. 733.5  Allegations received by DOE.

    If DOE receives directly a written allegation of research misconduct 
with regard to research under a DOE contract or financial assistance 
agreement, DOE will refer the allegation for processing to the DOE 
Element responsible for the contract or financial assistance agreement.



Sec. 733.6  Consultation with the DOE Office of the Inspector General.

    Upon receipt of an allegation of research misconduct, the DOE 
Element shall consult with the DOE Office of the Inspector General which 
will determine whether that office will elect to investigate the 
allegation.



Sec. 733.7  Referral to the contracting officer.

    If the DOE Office of the Inspector General declines to investigate 
an allegation of research misconduct, the DOE Element should forward the 
allegation to the contracting officer responsible for administration of 
the contract or financial assistance agreement to which the allegation 
pertains.



Sec. 733.8  Contracting officer procedures.

    Upon receipt of an allegation of research misconduct by referral 
under Sec. 733.7, the contracting officer should, by notification of 
the contractor or financial assistance recipient:
    (a) Require the contractor or the financial assistance recipient to 
act on the allegation consistent with the Research Misconduct 
requirements in the contract or financial assistance award to which the 
allegation pertains; or
    (b) In the event the contractor or the financial assistance 
recipient is unable to act:
    (1) Designate an appropriate DOE program to conduct an investigation 
to develop a complete factual record and an examination of such record 
leading to either a finding of research misconduct and an identification 
of appropriate remedies or a determination that no further action is 
warranted; and
    (2) Make the appropriate findings consistent with the Research 
Misconduct requirements contained in the contract or financial 
assistance award, in order to act in lieu of the contractor or financial 
assistance recipient.



PART 745_PROTECTION OF HUMAN SUBJECTS--Table of Contents



Sec.
745.101 To what does this policy apply?
745.102 Definitions.

[[Page 416]]

745.103 Assuring compliance with this policy--research conducted or 
          supported by any Federal department or agency.
745.104-745.106 [Reserved]
745.107 IRB membership.
745.108 IRB functions and operations.
745.109 IRB review of research.
745.110 Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.
745.111 Criteria for IRB approval of research.
745.112 Review by institution.
745.113 Suspension or termination of IRB approval of research.
745.114 Cooperative research.
745.115 IRB records.
745.116 General requirements for informed consent.
745.117 Documentation of informed consent.
745.118 Applications and proposals lacking definite plans for 
          involvement of human subjects.
745.119 Research undertaken without the intention of involving human 
          subjects.
745.120 Evaluation and disposition of applications and proposals for 
          research to be conducted or supported by a Federal department 
          or agency.
745.121 [Reserved]
745.122 Use of Federal funds.
745.123 Early termination of research support: Evaluation of 
          applications and proposals.
745.124 Conditions.

    Authority: 5 U.S.C. 301; 42 U.S.C. 7254; 42 U.S.C. 300v-1(b).

    Source: 56 FR 28012, 28018, June 18, 1991, unless otherwise noted.



Sec. 745.101  To what does this policy apply?

    (a) Except as provided in paragraph (b) of this section, this policy 
applies to all research involving human subjects conducted, supported or 
otherwise subject to regulation by any federal department or agency 
which takes appropriate administrative action to make the policy 
applicable to such research. This includes research conducted by federal 
civilian employees or military personnel, except that each department or 
agency head may adopt such procedural modifications as may be 
appropriate from an administrative standpoint. It also includes research 
conducted, supported, or otherwise subject to regulation by the federal 
government outside the United States.
    (1) Research that is conducted or supported by a federal department 
or agency, whether or not it is regulated as defined in Sec. 
745.102(e), must comply with all sections of this policy.
    (2) Research that is neither conducted nor supported by a federal 
department or agency but is subject to regulation as defined in Sec. 
745.102(e) must be reviewed and approved, in compliance with Sec. 
745.101, Sec. 745.102 and Sec. 745.107 through Sec. 745.101 of this 
policy, by an institutional review board (IRB) that operates in 
accordance with the pertinent requirements of this policy.
    (b) Unless otherwise required by department or agency heads, 
research activities in which the only involvement of human subjects will 
be in one or more of the following categories are exempt from this 
policy:
    (1) Research conducted in established or commonly accepted 
educational settings, involving normal educational practices, such as 
(i) research on regular and special education instructional strategies, 
or (ii) research on the effectiveness of or the comparison among 
instructional techniques, curricula, or classroom management methods.
    (2) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures or observation of public behavior, unless:
    (i) Information obtained is recorded in such a manner that human 
subjects can be identified, directly or through identifiers linked to 
the subjects; and (ii) any disclosure of the human subjects' responses 
outside the research could reasonably place the subjects at risk of 
criminal or civil liability or be damaging to the subjects' financial 
standing, employability, or reputation.
    (3) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures, or observation of public behavior that is not exempt under 
paragraph (b)(2) of this section, if:
    (i) The human subjects are elected or appointed public officials or 
candidates for public office; or (ii) federal statute(s) require(s) 
without exception that the confidentiality of the personally 
identifiable information will be maintained throughout the research and 
thereafter.

[[Page 417]]

    (4) Research, involving the collection or study of existing data, 
documents, records, pathological specimens, or diagnostic specimens, if 
these sources are publicly available or if the information is recorded 
by the investigator in such a manner that subjects cannot be identified, 
directly or through identifiers linked to the subjects.
    (5) Research and demonstration projects which are conducted by or 
subject to the approval of department or agency heads, and which are 
designed to study, evaluate, or otherwise examine:
    (i) Public benefit or service programs;
    (ii) Procedures for obtaining benefits or services under those 
programs;
    (iii) Possible changes in or alternatives to those programs or 
procedures; or
    (iv) Possible changes in methods or levels of payment for benefits 
or services under those programs.
    (6) Taste and food quality evaluation and consumer acceptance 
studies, (i) if wholesome foods without additives are consumed or (ii) 
if a food is consumed that contains a food ingredient at or below the 
level and for a use found to be safe, or agricultural chemical or 
environmental contaminant at or below the level found to be safe, by the 
Food and Drug Administration or approved by the Environmental Protection 
Agency or the Food Safety and Inspection Service of the U.S. Department 
of Agriculture.
    (c) Department or agency heads retain final judgment as to whether a 
particular activity is covered by this policy.
    (d) Department or agency heads may require that specific research 
activities or classes of research activities conducted, supported, or 
otherwise subject to regulation by the department or agency but not 
otherwise covered by this policy, comply with some or all of the 
requirements of this policy.
    (e) Compliance with this policy requires compliance with pertinent 
federal laws or regulations which provide additional protections for 
human subjects.
    (f) This policy does not affect any state or local laws or 
regulations which may otherwise be applicable and which provide 
additional protections for human subjects.
    (g) This policy does not affect any foreign laws or regulations 
which may otherwise be applicable and which provide additional 
protections to human subjects of research.
    (h) When research covered by this policy takes place in foreign 
countries, procedures normally followed in the foreign countries to 
protect human subjects may differ from those set forth in this policy. 
[An example is a foreign institution which complies with guidelines 
consistent with the World Medical Assembly Declaration (Declaration of 
Helsinki amended 1989) issued either by sovereign states or by an 
organization whose function for the protection of human research 
subjects is internationally recognized.] In these circumstances, if a 
department or agency head determines that the procedures prescribed by 
the institution afford protections that are at least equivalent to those 
provided in this policy, the department or agency head may approve the 
substitution of the foreign procedures in lieu of the procedural 
requirements provided in this policy. Except when otherwise required by 
statute, Executive Order, or the department or agency head, notices of 
these actions as they occur will be published in the Federal Register or 
will be otherwise published as provided in department or agency 
procedures.
    (i) Unless otherwise required by law, department or agency heads may 
waive the applicability of some or all of the provisions of this policy 
to specific research activities or classes of research activities 
otherwise covered by this policy. Except when otherwise required by 
statute or Executive Order, the department or agency head shall forward 
advance notices of these actions to the Office for Human Research 
Protections, Department of Health and Human Services (HHS), or any 
successor office, and shall also publish them in the Federal Register or 
in

[[Page 418]]

such other manner as provided in department or agency procedures. \1\
---------------------------------------------------------------------------

    \1\ Institutions with HHS-approved assurances on file will abide by 
provisions of title 45 CFR part 46 subparts A-D. Some of the other 
Departments and Agencies have incorporated all provisions of title 45 
CFR part 46 into their policies and procedures as well. However, the 
exemptions at 45 CFR 46.101(b) do not apply to research involving 
prisoners, subpart C. The exemption at 45 CFR 46.101(b)(2), for research 
involving survey or interview procedures or observation of public 
behavior, does not apply to research with children, subpart D, except 
for research involving observations of public behavior when the 
investigator(s) do not participate in the activities being observed.

[56 FR 28012, 28018, June 18, 1991; 56 FR 29756, June 28, 1991, as 
amended at 70 FR 36328, June 23, 2005]



Sec. 745.102  Definitions.

    (a) Department or agency head means the head of any federal 
department or agency and any other officer or employee of any department 
or agency to whom authority has been delegated.
    (b) Institution means any public or private entity or agency 
(including federal, state, and other agencies).
    (c) Legally authorized representative means an individual or 
judicial or other body authorized under applicable law to consent on 
behalf of a prospective subject to the subject's participation in the 
procedure(s) involved in the research.
    (d) Research means a systematic investigation, including research 
development, testing and evaluation, designed to develop or contribute 
to generalizable knowledge. Activities which meet this definition 
constitute research for purposes of this policy, whether or not they are 
conducted or supported under a program which is considered research for 
other purposes. For example, some demonstration and service programs may 
include research activities.
    (e) Research subject to regulation, and similar terms are intended 
to encompass those research activities for which a federal department or 
agency has specific responsibility for regulating as a research 
activity, (for example, Investigational New Drug requirements 
administered by the Food and Drug Administration). It does not include 
research activities which are incidentally regulated by a federal 
department or agency solely as part of the department's or agency's 
broader responsibility to regulate certain types of activities whether 
research or non-research in nature (for example, Wage and Hour 
requirements administered by the Department of Labor).
    (f) Human subject means a living individual about whom an 
investigator (whether professional or student) conducting research 
obtains
    (1) Data through intervention or interaction with the individual, or
    (2) Identifiable private information.

Intervention includes both physical procedures by which data are 
gathered (for example, venipuncture) and manipulations of the subject or 
the subject's environment that are performed for research purposes. 
Interaction includes communication or interpersonal contact between 
investigator and subject. ``Private information'' includes information 
about behavior that occurs in a context in which an individual can 
reasonably expect that no observation or recording is taking place, and 
information which has been provided for specific purposes by an 
individual and which the individual can reasonably expect will not be 
made public (for example, a medical record). Private information must be 
individually identifiable (i.e., the identity of the subject is or may 
readily be ascertained by the investigator or associated with the 
information) in order for obtaining the information to constitute 
research involving human subjects.
    (g) IRB means an institutional review board established in accord 
with and for the purposes expressed in this policy.
    (h) IRB approval means the determination of the IRB that the 
research has been reviewed and may be conducted at an institution within 
the constraints set forth by the IRB and by other institutional and 
federal requirements.
    (i) Minimal risk means that the probability and magnitude of harm or 
discomfort anticipated in the research are not greater in and of 
themselves than those ordinarily encountered in daily

[[Page 419]]

life or during the performance of routine physical or psychological 
examinations or tests.
    (j) Certification means the official notification by the institution 
to the supporting department or agency, in accordance with the 
requirements of this policy, that a research project or activity 
involving human subjects has been reviewed and approved by an IRB in 
accordance with an approved assurance.



Sec. 745.103  Assuring compliance with this policy--research conducted or supported by any Federal department or agency.

    (a) Each institution engaged in research which is covered by this 
policy and which is conducted or supported by a federal department or 
agency shall provide written assurance satisfactory to the department or 
agency head that it will comply with the requirements set forth in this 
policy. In lieu of requiring submission of an assurance, individual 
department or agency heads shall accept the existence of a current 
assurance, appropriate for the research in question, on file with the 
Office for Human Research Protections, HHS, or any successor office, and 
approved for Federal wide use by that office. When the existence of an 
HHS-approved assurance is accepted in lieu of requiring submission of an 
assurance, reports (except certification) required by this policy to be 
made to department and agency heads shall also be made to the Office for 
Human Research Protections, HHS, or any successor office.
    (b) Departments and agencies will conduct or support research 
covered by this policy only if the institution has an assurance approved 
as provided in this section, and only if the institution has certified 
to the department or agency head that the research has been reviewed and 
approved by an IRB provided for in the assurance, and will be subject to 
continuing review by the IRB. Assurances applicable to federally 
supported or conducted research shall at a minimum include:
    (1) A statement of principles governing the institution in the 
discharge of its responsibilities for protecting the rights and welfare 
of human subjects of research conducted at or sponsored by the 
institution, regardless of whether the research is subject to federal 
regulation. This may include an appropriate existing code, declaration, 
or statement of ethical principles, or a statement formulated by the 
institution itself. This requirement does not preempt provisions of this 
policy applicable to department- or agency-supported or regulated 
research and need not be applicable to any research exempted or waived 
under Sec. 745.101 (b) or (i).
    (2) Designation of one or more IRBs established in accordance with 
the requirements of this policy, and for which provisions are made for 
meeting space and sufficient staff to support the IRB's review and 
recordkeeping duties.
    (3) A list of IRB members identified by name; earned degrees; 
representative capacity; indications of experience such as board 
certifications, licenses, etc., sufficient to describe each member's 
chief anticipated contributions to IRB deliberations; and any employment 
or other relationship between each member and the institution; for 
example: full-time employee, part-time employee, member of governing 
panel or board, stockholder, paid or unpaid consultant. Changes in IRB 
membership shall be reported to the department or agency head, unless in 
accord with Sec. 745.103(a) of this policy, the existence of an HHS-
approved assurance is accepted. In this case, change in IRB membership 
shall be reported to the Office for Human Research Protections, HHS, or 
any successor office.
    (4) Written procedures which the IRB will follow (i) for conducting 
its initial and continuing review of research and for reporting its 
findings and actions to the investigator and the institution; (ii) for 
determining which projects require review more often than annually and 
which projects need verification from sources other than the 
investigators that no material changes have occurred since previous IRB 
review; and (iii) for ensuring prompt reporting to the IRB of proposed 
changes in a research activity, and for ensuring that such changes in 
approved research, during the period for which IRB approval has already 
been given, may not be initiated without IRB review and approval except 
when necessary to

[[Page 420]]

eliminate apparent immediate hazards to the subject.
    (5) Written procedures for ensuring prompt reporting to the IRB, 
appropriate institutional officials, and the department or agency head 
of (i) any unanticipated problems involving risks to subjects or others 
or any serious or continuing noncompliance with this policy or the 
requirements or determinations of the IRB and (ii) any suspension or 
termination of IRB approval.
    (c) The assurance shall be executed by an individual authorized to 
act for the institution and to assume on behalf of the institution the 
obligations imposed by this policy and shall be filed in such form and 
manner as the department or agency head prescribes.
    (d) The department or agency head will evaluate all assurances 
submitted in accordance with this policy through such officers and 
employees of the department or agency and such experts or consultants 
engaged for this purpose as the department or agency head determines to 
be appropriate. The department or agency head's evaluation will take 
into consideration the adequacy of the proposed IRB in light of the 
anticipated scope of the institution's research activities and the types 
of subject populations likely to be involved, the appropriateness of the 
proposed initial and continuing review procedures in light of the 
probable risks, and the size and complexity of the institution.
    (e) On the basis of this evaluation, the department or agency head 
may approve or disapprove the assurance, or enter into negotiations to 
develop an approvable one. The department or agency head may limit the 
period during which any particular approved assurance or class of 
approved assurances shall remain effective or otherwise condition or 
restrict approval.
    (f) Certification is required when the research is supported by a 
federal department or agency and not otherwise exempted or waived under 
Sec. 745.101 (b) or (i). An institution with an approved assurance 
shall certify that each application or proposal for research covered by 
the assurance and by Sec. 745.103 of this Policy has been reviewed and 
approved by the IRB. Such certification must be submitted with the 
application or proposal or by such later date as may be prescribed by 
the department or agency to which the application or proposal is 
submitted. Under no condition shall research covered by Sec. 745.103 of 
the Policy be supported prior to receipt of the certification that the 
research has been reviewed and approved by the IRB. Institutions without 
an approved assurance covering the research shall certify within 30 days 
after receipt of a request for such a certification from the department 
or agency, that the application or proposal has been approved by the 
IRB. If the certification is not submitted within these time limits, the 
application or proposal may be returned to the institution.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)

[56 FR 28012, 28018, June 18, 1991; 56 FR 29756, June 28, 1991, as 
amended at 70 FR 36328, June 23, 2005]



Sec. Sec. 745.104-745.106  [Reserved]



Sec. 745.107  IRB membership.

    (a) Each IRB shall have at least five members, with varying 
backgrounds to promote complete and adequate review of research 
activities commonly conducted by the institution. The IRB shall be 
sufficiently qualified through the experience and expertise of its 
members, and the diversity of the members, including consideration of 
race, gender, and cultural backgrounds and sensitivity to such issues as 
community attitudes, to promote respect for its advice and counsel in 
safeguarding the rights and welfare of human subjects. In addition to 
possessing the professional competence necessary to review specific 
research activities, the IRB shall be able to ascertain the 
acceptability of proposed research in terms of institutional commitments 
and regulations, applicable law, and standards of professional conduct 
and practice. The IRB shall therefore include persons knowledgeable in 
these areas. If an IRB regularly reviews research that involves a 
vulnerable category of subjects, such as children, prisoners, pregnant 
women, or handicapped or mentally disabled persons, consideration shall 
be given to the inclusion of one or more individuals who

[[Page 421]]

are knowledgeable about and experienced in working with these subjects.
    (b) Every nondiscriminatory effort will be made to ensure that no 
IRB consists entirely of men or entirely of women, including the 
institution's consideration of qualified persons of both sexes, so long 
as no selection is made to the IRB on the basis of gender. No IRB may 
consist entirely of members of one profession.
    (c) Each IRB shall include at least one member whose primary 
concerns are in scientific areas and at least one member whose primary 
concerns are in nonscientific areas.
    (d) Each IRB shall include at least one member who is not otherwise 
affiliated with the institution and who is not part of the immediate 
family of a person who is affiliated with the institution.
    (e) No IRB may have a member participate in the IRB's initial or 
continuing review of any project in which the member has a conflicting 
interest, except to provide information requested by the IRB.
    (f) An IRB may, in its discretion, invite individuals with 
competence in special areas to assist in the review of issues which 
require expertise beyond or in addition to that available on the IRB. 
These individuals may not vote with the IRB.



Sec. 745.108  IRB functions and operations.

    In order to fulfill the requirements of this policy each IRB shall:
    (a) Follow written procedures in the same detail as described in 
Sec. 745.103(b)(4) and, to the extent required by, Sec. 745.103(b)(5).
    (b) Except when an expedited review procedure is used (see Sec. 
745.110), review proposed research at convened meetings at which a 
majority of the members of the IRB are present, including at least one 
member whose primary concerns are in nonscientific areas. In order for 
the research to be approved, it shall receive the approval of a majority 
of those members present at the meeting.



Sec. 745.109  IRB review of research.

    (a) An IRB shall review and have authority to approve, require 
modifications in (to secure approval), or disapprove all research 
activities covered by this policy.
    (b) An IRB shall require that information given to subjects as part 
of informed consent is in accordance with Sec. 745.116. The IRB may 
require that information, in addition to that specifically mentioned in 
Sec. 745.116, be given to the subjects when in the IRB's judgment the 
information would meaningfully add to the protection of the rights and 
welfare of subjects.
    (c) An IRB shall require documentation of informed consent or may 
waive documentation in accordance with Sec. 745.117.
    (d) An IRB shall notify investigators and the institution in writing 
of its decision to approve or disapprove the proposed research activity, 
or of modifications required to secure IRB approval of the research 
activity. If the IRB decides to disapprove a research activity, it shall 
include in its written notification a statement of the reasons for its 
decision and give the investigator an opportunity to respond in person 
or in writing.
    (e) An IRB shall conduct continuing review of research covered by 
this policy at intervals appropriate to the degree of risk, but not less 
than once per year, and shall have authority to observe or have a third 
party observe the consent process and the research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)

[56 FR 28012, 28018, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 745.110  Expedited review procedures for certain kinds of research involving no more than minimal risk, and for minor changes in approved research.

    (a) The Secretary, HHS, has established, and published as a Notice 
in the Federal Register, a list of categories of research that may be 
reviewed by the IRB through an expedited review procedure. The list will 
be amended, as appropriate after consultation with other departments and 
agencies, through periodic republication by the Secretary, HHS, in the 
Federal Register. A copy of the list is available from the Office for 
Human Research

[[Page 422]]

Protections, HHS, or any successor office.
    (b) An IRB may use the expedited review procedure to review either 
or both of the following:
    (1) Some or all of the research appearing on the list and found by 
the reviewer(s) to involve no more than minimal risk,
    (2) Minor changes in previously approved research during the period 
(of one year or less) for which approval is authorized.


Under an expedited review procedure, the review may be carried out by 
the IRB chairperson or by one or more experienced reviewers designated 
by the chairperson from among members of the IRB. In reviewing the 
research, the reviewers may exercise all of the authorities of the IRB 
except that the reviewers may not disapprove the research. A research 
activity may be disapproved only after review in accordance with the 
non-expedited procedure set forth in Sec. 745.108(b).
    (c) Each IRB which uses an expedited review procedure shall adopt a 
method for keeping all members advised of research proposals which have 
been approved under the procedure.
    (d) The department or agency head may restrict, suspend, terminate, 
or choose not to authorize an institution's or IRB's use of the 
expedited review procedure.

[56 FR 28012, 28018, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 745.111  Criteria for IRB approval of research.

    (a) In order to approve research covered by this policy the IRB 
shall determine that all of the following requirements are satisfied:
    (1) Risks to subjects are minimized: (i) By using procedures which 
are consistent with sound research design and which do not unnecessarily 
expose subjects to risk, and (ii) whenever appropriate, by using 
procedures already being performed on the subjects for diagnostic or 
treatment purposes.
    (2) Risks to subjects are reasonable in relation to anticipated 
benefits, if any, to subjects, and the importance of the knowledge that 
may reasonably be expected to result. In evaluating risks and benefits, 
the IRB should consider only those risks and benefits that may result 
from the research (as distinguished from risks and benefits of therapies 
subjects would receive even if not participating in the research). The 
IRB should not consider possible long-range effects of applying 
knowledge gained in the research (for example, the possible effects of 
the research on public policy) as among those research risks that fall 
within the purview of its responsibility.
    (3) Selection of subjects is equitable. In making this assessment 
the IRB should take into account the purposes of the research and the 
setting in which the research will be conducted and should be 
particularly cognizant of the special problems of research involving 
vulnerable populations, such as children, prisoners, pregnant women, 
mentally disabled persons, or economically or educationally 
disadvantaged persons.
    (4) Informed consent will be sought from each prospective subject or 
the subject's legally authorized representative, in accordance with, and 
to the extent required by Sec. 745.116.
    (5) Informed consent will be appropriately documented, in accordance 
with, and to the extent required by Sec. 745.117.
    (6) When appropriate, the research plan makes adequate provision for 
monitoring the data collected to ensure the safety of subjects.
    (7) When appropriate, there are adequate provisions to protect the 
privacy of subjects and to maintain the confidentiality of data.
    (b) When some or all of the subjects are likely to be vulnerable to 
coercion or undue influence, such as children, prisoners, pregnant 
women, mentally disabled persons, or economically or educationally 
disadvantaged persons, additional safeguards have been included in the 
study to protect the rights and welfare of these subjects.



Sec. 745.112  Review by institution.

    Research covered by this policy that has been approved by an IRB may 
be subject to further appropriate review and approval or disapproval by 
officials

[[Page 423]]

of the institution. However, those officials may not approve the 
research if it has not been approved by an IRB.



Sec. 745.113  Suspension or termination of IRB approval of research.

    An IRB shall have authority to suspend or terminate approval of 
research that is not being conducted in accordance with the IRB's 
requirements or that has been associated with unexpected serious harm to 
subjects. Any suspension or termination of approval shall include a 
statement of the reasons for the IRB's action and shall be reported 
promptly to the investigator, appropriate institutional officials, and 
the department or agency head.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)

[56 FR 28012, 28018, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 745.114  Cooperative research.

    Cooperative research projects are those projects covered by this 
policy which involve more than one institution. In the conduct of 
cooperative research projects, each institution is responsible for 
safeguarding the rights and welfare of human subjects and for complying 
with this policy. With the approval of the department or agency head, an 
institution participating in a cooperative project may enter into a 
joint review arrangement, rely upon the review of another qualified IRB, 
or make similar arrangements for avoiding duplication of effort.



Sec. 745.115  IRB records.

    (a) An institution, or when appropriate an IRB, shall prepare and 
maintain adequate documentation of IRB activities, including the 
following:
    (1) Copies of all research proposals reviewed, scientific 
evaluations, if any, that accompany the proposals, approved sample 
consent documents, progress reports submitted by investigators, and 
reports of injuries to subjects.
    (2) Minutes of IRB meetings which shall be in sufficient detail to 
show attendance at the meetings; actions taken by the IRB; the vote on 
these actions including the number of members voting for, against, and 
abstaining; the basis for requiring changes in or disapproving research; 
and a written summary of the discussion of controverted issues and their 
resolution.
    (3) Records of continuing review activities.
    (4) Copies of all correspondence between the IRB and the 
investigators.
    (5) A list of IRB members in the same detail as described is Sec. 
745.103(b)(3).
    (6) Written procedures for the IRB in the same detail as described 
in Sec. 745.103(b)(4) and Sec. 745.103(b)(5).
    (7) Statements of significant new findings provided to subjects, as 
required by Sec. 745.116(b)(5).
    (b) The records required by this policy shall be retained for at 
least 3 years, and records relating to research which is conducted shall 
be retained for at least 3 years after completion of the research. All 
records shall be accessible for inspection and copying by authorized 
representatives of the department or agency at reasonable times and in a 
reasonable manner.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)

[56 FR 28012, 28018, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 745.116  General requirements for informed consent.

    Except as provided elsewhere in this policy, no investigator may 
involve a human being as a subject in research covered by this policy 
unless the investigator has obtained the legally effective informed 
consent of the subject or the subject's legally authorized 
representative. An investigator shall seek such consent only under 
circumstances that provide the prospective subject or the representative 
sufficient opportunity to consider whether or not to participate and 
that minimize the possibility of coercion or undue influence. The 
information that is given to the subject or the representative shall be 
in language understandable to the subject or the representative. No 
informed consent, whether oral or written, may include any exculpatory 
language through which the subject or the representative is made to 
waive or appear to waive any of the subject's legal rights, or releases 
or appears to release

[[Page 424]]

the investigator, the sponsor, the institution or its agents from 
liability for negligence.
    (a) Basic elements of informed consent. Except as provided in 
paragraph (c) or (d) of this section, in seeking informed consent the 
following information shall be provided to each subject:
    (1) A statement that the study involves research, an explanation of 
the purposes of the research and the expected duration of the subject's 
participation, a description of the procedures to be followed, and 
identification of any procedures which are experimental;
    (2) A description of any reasonably foreseeable risks or discomforts 
to the subject;
    (3) A description of any benefits to the subject or to others which 
may reasonably be expected from the research;
    (4) A disclosure of appropriate alternative procedures or courses of 
treatment, if any, that might be advantageous to the subject;
    (5) A statement describing the extent, if any, to which 
confidentiality of records identifying the subject will be maintained;
    (6) For research involving more than minimal risk, an explanation as 
to whether any compensation and an explanation as to whether any medical 
treatments are available if injury occurs and, if so, what they consist 
of, or where further information may be obtained;
    (7) An explanation of whom to contact for answers to pertinent 
questions about the research and research subjects' rights, and whom to 
contact in the event of a research-related injury to the subject; and
    (8) A statement that participation is voluntary, refusal to 
participate will involve no penalty or loss of benefits to which the 
subject is otherwise entitled, and the subject may discontinue 
participation at any time without penalty or loss of benefits to which 
the subject is otherwise entitled.
    (b) Additional elements of informed consent. When appropriate, one 
or more of the following elements of information shall also be provided 
to each subject:
    (1) A statement that the particular treatment or procedure may 
involve risks to the subject (or to the embryo or fetus, if the subject 
is or may become pregnant) which are currently unforeseeable;
    (2) Anticipated circumstances under which the subject's 
participation may be terminated by the investigator without regard to 
the subject's consent;
    (3) Any additional costs to the subject that may result from 
participation in the research;
    (4) The consequences of a subject's decision to withdraw from the 
research and procedures for orderly termination of participation by the 
subject;
    (5) A statement that significant new findings developed during the 
course of the research which may relate to the subject's willingness to 
continue participation will be provided to the subject; and
    (6) The approximate number of subjects involved in the study.
    (c) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth above, or waive the requirement to obtain informed consent 
provided the IRB finds and documents that:
    (1) The research or demonstration project is to be conducted by or 
subject to the approval of state or local government officials and is 
designed to study, evaluate, or otherwise examine: (i) Public benefit of 
service programs; (ii) procedures for obtaining benefits or services 
under those programs; (iii) possible changes in or alternatives to those 
programs or procedures; or (iv) possible changes in methods or levels of 
payment for benefits or services under those programs; and
    (2) The research could not practicably be carried out without the 
waiver or alteration.
    (d) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth in this section, or waive the requirements to obtain informed 
consent provided the IRB finds and documents that:
    (1) The research involves no more than minimal risk to the subjects;
    (2) The waiver or alteration will not adversely affect the rights 
and welfare of the subjects;

[[Page 425]]

    (3) The research could not practicably be carried out without the 
waiver or alteration; and
    (4) Whenever appropriate, the subjects will be provided with 
additional pertinent information after participation.
    (e) The informed consent requirements in this policy are not 
intended to preempt any applicable federal, state, or local laws which 
require additional information to be disclosed in order for informed 
consent to be legally effective.
    (f) Nothing in this policy is intended to limit the authority of a 
physician to provide emergency medical care, to the extent the physician 
is permitted to do so under applicable federal, state, or local law.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)

[56 FR 28012, 28018, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 745.117  Documentation of informed consent.

    (a) Except as provided in paragraph (c) of this section, informed 
consent shall be documented by the use of a written consent form 
approved by the IRB and signed by the subject or the subject's legally 
authorized representative. A copy shall be given to the person signing 
the form.
    (b) Except as provided in paragraph (c) of this section, the consent 
form may be either of the following:
    (1) A written consent document that embodies the elements of 
informed consent required by Sec. 745.116. This form may be read to the 
subject or the subject's legally authorized representative, but in any 
event, the investigator shall give either the subject or the 
representative adequate opportunity to read it before it is signed; or
    (2) A short form written consent document stating that the elements 
of informed consent required by Sec. 745.116 have been presented orally 
to the subject or the subject's legally authorized representative. When 
this method is used, there shall be a witness to the oral presentation. 
Also, the IRB shall approve a written summary of what is to be said to 
the subject or the representative. Only the short form itself is to be 
signed by the subject or the representative. However, the witness shall 
sign both the short form and a copy of the summary, and the person 
actually obtaining consent shall sign a copy of the summary. A copy of 
the summary shall be given to the subject or the representative, in 
addition to a copy of the short form.
    (c) An IRB may waive the requirement for the investigator to obtain 
a signed consent form for some or all subjects if it finds either:
    (1) That the only record linking the subject and the research would 
be the consent document and the principal risk would be potential harm 
resulting from a breach of confidentiality. Each subject will be asked 
whether the subject wants documentation linking the subject with the 
research, and the subject's wishes will govern; or
    (2) That the research presents no more than minimal risk of harm to 
subjects and involves no procedures for which written consent is 
normally required outside of the research context.
    In cases in which the documentation requirement is waived, the IRB 
may require the investigator to provide subjects with a written 
statement regarding the research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260)

[56 FR 28012, 28018, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 745.118  Applications and proposals lacking definite plans for involvement of human subjects.

    Certain types of applications for grants, cooperative agreements, or 
contracts are submitted to departments or agencies with the knowledge 
that subjects may be involved within the period of support, but definite 
plans would not normally be set forth in the application or proposal. 
These include activities such as institutional type grants when 
selection of specific projects is the institution's responsibility; 
research training grants in which the activities involving subjects 
remain to be selected; and projects in which human subjects' involvement 
will depend upon completion of instruments, prior animal studies, or 
purification of compounds. These applications need not be reviewed by an 
IRB before an award

[[Page 426]]

may be made. However, except for research exempted or waived under Sec. 
745.101 (b) or (i), no human subjects may be involved in any project 
supported by these awards until the project has been reviewed and 
approved by the IRB, as provided in this policy, and certification 
submitted, by the institution, to the department or agency.



Sec. 745.119  Research undertaken without the intention of involving human subjects.

    In the event research is undertaken without the intention of 
involving human subjects, but it is later proposed to involve human 
subjects in the research, the research shall first be reviewed and 
approved by an IRB, as provided in this policy, a certification 
submitted, by the institution, to the department or agency, and final 
approval given to the proposed change by the department or agency.



Sec. 745.120  Evaluation and disposition of applications and proposals for research to be conducted or supported by a Federal department or agency.

    The department or agency head will evaluate all applications and 
proposals involving human subjects submitted to the department or agency 
through such officers and employees of the department or agency and such 
experts and consultants as the department or agency head determines to 
be appropriate. This evaluation will take into consideration the risks 
to the subjects, the adequacy of protection against these risks, the 
potential benefits of the research to the subjects and others, and the 
importance of the knowledge gained or to be gained.
    (b) On the basis of this evaluation, the department or agency head 
may approve or disapprove the application or proposal, or enter into 
negotiations to develop an approvable one.



Sec. 745.121  [Reserved]



Sec. 745.122  Use of Federal funds.

    Federal funds administered by a department or agency may not be 
expended for research involving human subjects unless the requirements 
of this policy have been satisfied.



Sec. 745.123  Early termination of research support: Evaluation of applications and proposals.

    (a) The department or agency head may require that department or 
agency support for any project be terminated or suspended in the manner 
prescribed in applicable program requirements, when the department or 
agency head finds an institution has materially failed to comply with 
the terms of this policy.
    (b) In making decisions about supporting or approving applications 
or proposals covered by this policy the department or agency head may 
take into account, in addition to all other eligibility requirements and 
program criteria, factors such as whether the applicant has been subject 
to a termination or suspension under paragraph (a) of this section and 
whether the applicant or the person or persons who would direct or has 
have directed the scientific and technical aspects of an activity has 
have, in the judgment of the department or agency head, materially 
failed to discharge responsibility for the protection of the rights and 
welfare of human subjects (whether or not the research was subject to 
Federal regulation).



Sec. 745.124  Conditions.

    With respect to any research project or any class of research 
projects the department or agency head may impose additional conditions 
prior to or at the time of approval when in the judgment of the 
department or agency head additional conditions are necessary for the 
protection of human subjects.



PART 760_DOMESTIC URANIUM PROGRAM--Table of Contents





Sec. 760.1  Uranium leases on lands controlled by DOE. (Domestic Uranium

Program Circular No. 760.1, formerly (AEC) Domestic Uranium Program Circular 8, 10 CFR 
          60.8).

    (a) What this section does. This section sets forth regulations 
governing the issuance of leases to permit the exploration for and 
mining of deposits containing uranium in public lands withdrawn from 
entry and location under the general mining laws for use of

[[Page 427]]

DOE, and in certain other lands under DOE control.
    (b) Statutory authority. The Atomic Energy Act of 1954, as amended 
(68 Stat. 919, 42 U.S.C. 2011 et seq.) is the authority for this 
section.
    (c) Who may hold leases. Only parties who are (1) citizens of the 
United States; (2) associations of such citizens; or (3) corporations 
organized under the laws of the United States or territories thereof, 
are eligible lessees under this section. Persons under 21 years of age 
or employees of DOE are not eligible.
    (d) Issuance of leases through competitive bidding. Except under 
special circumstances as provided in paragraph (u) of this section, each 
lease will be offered through competitive bidding and, except as 
otherwise provided in this paragraph (d), will be issued to the 
acceptable bidder offering the highest bid. The bid may be on a cash 
bonus, royalty bonus, or other basis as specified in the invitation to 
bid. Invitations to bid on some of the lands may be limited to small 
business concerns as defined by the Small Business Administration, and 
such invitations may limit the number of leases to be awarded to each 
bidder. In such cases DOE will accept those bids which, in relation to 
other bids received pursuant to the invitation, are most advantageous to 
the Government. Before any lease is awarded, DOE may require high 
bidders to submit a detailed statement of the facts as to such matters 
as their experience, organization, and financial resources. DOE reserves 
the right to reject any and all bids.
    (e) Solicitation of bids. Announcements of the availability of 
invitations to bid for a lease will be publicly posted and published. 
Copies of such announcements will also be mailed to parties who submit 
to DOE's Grand Junction, Colorado, Office subsequent to publication in 
the Federal Register of this (DOE) Domestic Uranium Program Circular 
760.1, written requests that their names be placed on a mailing list for 
receipt of such announcements. The invitations containing information 
for preparation and submission of bids will be available at the Grand 
Junction Office, and will be mailed only on specific written request, 
following announcement of their availability. Invitations will specify 
the land to be leased, the basis on which bids are to be submitted, the 
amount of the monetary deposit which must be transmitted with the bid, 
the place and time the bids will be publicly opened, the term, royalty 
and other payments, performance requirements, and other payments, 
performance requirements, and other conditions which will become a part 
of the lease. In addition, data which have been assembled pertaining to 
the lands to be leased will be available for public inspection at the 
Grand Junction Office; copies will also be available for purchase.
    (f) Bidding requirements; deposits. All bids must be filed at the 
place and prior to the time set forth in the invitation. Each bid must 
be sealed and accompanied by a deposit, in the form of a certified 
check, cashier's check, or bank draft, in an amount as specified in the 
invitation to bid. Deposits of unsuccessful bidders will be returned. If 
the bidder is an individual, he must submit with his bid a statement of 
his citizenship and age. If the bidder is an association (including a 
partnership), the bid shall be accompanied by a certified copy of the 
articles of association together with a statement as to the citizenship 
and age of its members. If the bidder is a corporation, evidence that 
the officer signing the bid had authority to do so and a statement as to 
the State of incorporation shall also be submitted.
    (g) Awarding of lease. Following public opening of the bids, DOE, 
subject to the right to reject any and all bids, will determine the 
successful bidder. In the event the highest acceptable bids are tie 
bids, a public drawing will be held by DOE to determine the successful 
bidder. After notice of award and within the time period prescribed in 
the invitation, the successful bidder shall execute and return to DOE 
three (3) copies of the lease and shall remit payments due as prescribed 
in the invitation. Should the successful bidder fail to execute the 
lease, or make payments as required, in accordance with the terms of the 
invitation, or fail to otherwise comply with applicable regulations, he 
may be required to forfeit any payments previously made, and lose

[[Page 428]]

any further right or interest in the lease. In such event, DOE may offer 
the lease to the next highest acceptable bidder, reoffer the lease for 
bidding, or take such other action as appropriate. If the awarded lease 
is executed by the bidder through an agent, evidence of authorization 
must be submitted.
    (h) Dating of lease. A lease issued under this section will 
ordinarily be effective as of the date it is signed on behalf of DOE.
    (i) Term of lease. A lease shall be for the period specified in the 
invitation to bid. When deemed desirable by DOE, the lease will provide 
that the lease term may be extended at the option of the lessee for a 
specified period and upon stipulated conditions.
    (j) Payments to DOE under lease. Royalty payments shall be specified 
in the invitation to bid; base royalty, minimum royalty, advance 
royalty, and rental payments, or a combination thereof may be required.
    (k) Title to unshipped ore. DOE, unless it approves otherwise, 
reserves all right and title to property in and to all ores and other 
uranium- or vanadium-bearing material not removed from the leased 
premises within 60 days after expiration or other termination of the 
lease. Unless DOE approves otherwise, all material mined from the leased 
premises and not marketed by the lessee shall remain on the leased 
premises.
    (l) Environmental controls. Each lease will contain such provisions 
as may be deemed necessary by DOE with respect to the lessee's use of 
the leased lands. DOE may require periodic submission of plans for 
exploration and mining activities including provisions for control of 
environmental impact. The lessee will be required to conduct operations 
so as to minimize adverse environmental effects, to comply with all 
applicable State and Federal statutes and regulations and to the extent 
stipulated in the lease agreement, will be held responsible for 
maintenance or rehabilitation of affected areas in accordance with plans 
submitted to and approved by DOE.
    (m) Performance requirements. A lease shall require that 
exploration, development, and mining activities, as appropriate, be 
conducted on the leased premises with reasonable diligence, skill, and 
care as required to achieve and maintain production of uranium ore at 
rates consistent with good and safe mining practice and with market 
conditions.
    (n) Health and safety requirements. A lease (1) shall require that 
exploration, development, and mining activities, as appropriate, be 
conducted on the leased premises with due regard for the health and 
safety of those involved, and (2) shall include appropriate measures for 
the control of radiation exposure in the mines.
    (o) Lessee's records. Leases shall provide that the lessee keep and 
make available to DOE such records as DOE deems necessary for the 
administration of the lease and its leasing program.
    (p) Rights of DOE. DOE reserves the right to enter upon the leased 
property and into all parts of the mine for inspection and other 
purposes. DOE also reserves the right to grant to other persons 
easements or rights of way upon, through, or in the leased premises. DOE 
and the Comptroller General of the United States or any of his duly 
authorized representatives shall, until the expiration of 3 years after 
termination or expiration of lease, have access to and the right to 
examine any directly pertinent books, papers, and records of the lessee 
involving transactions related to the lease.
    (q) Relinquishment of leases. A lease may be surrendered by the 
lessee upon filing with and approval by DOE of a written application for 
relinquishment. Approval of the application shall be contingent upon the 
delivery of the leased premises to DOE in a condition determined to be 
satisfactory to DOE. The lessee shall continue to be liable for the 
payment of all royalty and other debts due DOE.
    (r) Assignment of leases. Any transfer of a lease or any interest 
therein or claim thereunder, will not be recognized unless and until 
approved by DOE in writing. Ordinarily, DOE will not approve any 
transfer of a lease which involves overriding royalties or deferred 
payments of any kind to the transferor.
    (s) Cancellation. Any lease may be cancelled by DOE whenever the 
lessee fails to comply with the provisions of

[[Page 429]]

the lease. Failure of DOE to exercise its right to cancel shall not be 
deemed a waiver thereof.
    (t) Form of lease. Leases will be issued on forms prescribed by DOE.
    (u) Noncompetitive leases. Under special circumstances, where DOE 
believes it to be in the best interest of the Government, DOE at its 
discretion may award or extend leases on the basis of negotiation.
    (v) DOE decisions. All matters connected with the issuance and 
administration of leases will be determined by DOE whose decisions shall 
be final and conclusive.
    (w) Definitions. DOE as used in this section means the United States 
Department of Energy or its duly authorized representative or 
representatives.
    (x) Multiple use of land. Leases issued under this section shall 
provide that operations under them will be conducted so as not to 
interfere with the lawful operations of any third party having a lease, 
permit, easement, or other right or interest in the premises.
    (y) Compliance with State and Federal regulations. Every lease shall 
provide that the lessee is required to comply with all applicable State 
and Federal statutes and regulations.

(Secs. 66, 161, 68 Stat. 933, 948, as amended; 42 U.S.C. 2096, 2201)

[41 FR 56783, Dec. 30, 1976]



PART 765_REIMBURSEMENT FOR COSTS OF REMEDIAL ACTION AT ACTIVE URANIUM AND THORIUM PROCESSING SITES--Table of Contents



                            Subpart A_General

Sec.
765.1 Purpose.
765.2 Scope and applicability.
765.3 Definitions.

                    Subpart B_Reimbursement Criteria

765.10 Eligibility for reimbursement.
765.11 Reimbursable costs.
765.12 Inflation index adjustment procedures.

 Subpart C_Procedures for Submitting and Processing Reimbursement Claims

765.20 Procedures for submitting reimbursement claims.
765.21 Procedures for processing reimbursement claims.
765.22 Appeals procedures.
765.23 Annual report.

              Subpart D_Additional Reimbursement Procedures

765.30 Reimbursement of costs incurred in accordance with a plan for 
          subsequent remedial action.
765.31 Designation of funds available for subsequent remedial action.
765.32 Reimbursement of excess funds.

    Authority: 42 U.S.C. 2296a et seq.

    Source: 59 FR 26726, May 23, 1994, unless otherwise noted.



                            Subpart A_General



Sec. 765.1  Purpose.

    The provisions of this part establish regulatory requirements 
governing reimbursement for certain costs of remedial action at active 
uranium or thorium processing sites as specified by Subtitle A of Title 
X of the Energy Policy Act of 1992. These regulations are authorized by 
section 1002 of the Act (42 U.S.C. 2296a-1), which requires the 
Secretary to issue regulations governing the reimbursements.



Sec. 765.2  Scope and applicability.

    (a) This part establishes policies, criteria, and procedures 
governing reimbursement of certain costs of remedial action incurred by 
licensees at active uranium or thorium processing sites as a result of 
byproduct material generated as an incident of sales to the United 
States.
    (b) Costs of remedial action at active uranium or thorium processing 
sites are borne by persons licensed under section 62 or 81 of the Atomic 
Energy Act (42 U.S.C. 2092, 2111), either by NRC or an Agreement State 
pursuant to a counterpart to section 62 or 81 of the Atomic Energy Act, 
under State law, subject to the exceptions and limitations specified in 
this part.
    (c) The Department shall, subject to the provisions specified in 
this part, reimburse a licensee, of an active uranium or thorium 
processing site for the portion of the costs of remedial action as are 
determined by the Department to be attributable to byproduct material 
generated as an incident of sales to

[[Page 430]]

the United States and either incurred by the licensee not later than 
December 31, 2007, or incurred by the licensee in accordance with a plan 
for subsequent remedial action approved by the Department.
    (d) Costs of remedial action are reimbursable under Title X for 
decontamination, decommissioning, reclamation, and other remedial 
action, provided that claims for reimbursement are supported by 
reasonable documentation as specified in subpart C of this part.
    (e) Except as authorized by Sec. 765.32, the total amount of 
reimbursement paid to any licensee of an active uranium processing site 
shall not exceed $6.25 multiplied by the number of Federal-related dry 
short tons of byproduct material. This total amount shall be adjusted 
for inflation pursuant to section 765.12.
    (f) The total amount of reimbursement paid to all active uranium 
processing site licensees shall not exceed $350 million. This total 
amount shall be adjusted for inflation by applying the CPI-U, as 
provided by Sec. 765.12.
    (g) The total amount of reimbursement paid to the licensee of the 
active thorium processing site shall not exceed $365 million, as 
adjusted for inflation by applying the CPI-U as provided by Sec. 
765.12.
    (h) Reimbursement of licensees for costs of remedial action will 
only be made for costs that are supported by reasonable documentation as 
required by Sec. 765.20 and claimed for reimbursement by a licensee in 
accordance with the procedures established by subpart C of this part.
    (i) The $715 million aggregate amount authorized to be appropriated 
under section 1003(a) of the Act (42 U.S.C. 2296a-2(a)) shall be 
adjusted for inflation by applying the CPI-U as provided by Sec. 
765.12, and shall be provided from the Fund.

[59 FR 26726, May 23, 1994, as amended at 68 FR 32957, June 3, 2003]



Sec. 765.3  Definitions.

    For the purposes of this part, the following terms are defined as 
follows:
    Active uranium or thorium processing site or active processing site 
means:
    (1) Any uranium or thorium processing site, including the mill, 
containing byproduct material for which a license, issued either by NRC 
or by an Agreement State, for the production at a site of any uranium or 
thorium derived from ore--
    (i) Was in effect on January 1, 1978;
    (ii) Was issued or renewed after January 1, 1978; or
    (iii) For which an application for renewal or issuance was pending 
on, or after January 1, 1978; and
    (2) Any other real property or improvement on such real property 
that is determined by the Secretary or by an Agreement State to be:
    (i) In the vicinity of such site; and
    (ii) Contaminated with residual byproduct material.
    Agreement State means a State that is or has been a party to a 
discontinuance agreement with NRC under section 274 of the Atomic Energy 
Act (42 U.S.C. 2021) and thereafter issues licenses and establishes 
remedial action requirements pursuant to a counterpart to section 62 or 
81 of the Atomic Energy Act under state law.
    Atomic Energy Act means the Atomic Energy Act of 1954, as amended, 
(42 U.S.C. 2011 et seq.).
    Byproduct material means the tailings or wastes produced by the 
extraction or concentration of uranium or thorium from any ore processed 
primarily for its source material content.
    Claim for reimbursement means the submission of an application for 
reimbursement in accordance with the requirements established in subpart 
C of this part.
    Costs of remedial action means costs incurred by a licensee prior to 
or after enactment of UMTRCA to perform decontamination, 
decommissioning, reclamation, and other remedial action. These costs may 
include but are not necessarily limited to expenditures for work 
necessary to comply with applicable requirements to conduct groundwater 
remediation, treatment or containment of contaminated soil, disposal of 
process wastes, removal actions, air pollution abatement measures, mill 
and equipment decommissioning, site monitoring, administrative 
activities, expenditures required

[[Page 431]]

to meet necessary regulatory standards, or other requirements 
established by NRC, or an Agreement State. Costs of remedial action must 
be supported by reasonable documentation in accordance with the 
requirements of subpart C of this part.
    Decontamination, decommissioning, reclamation, and other remedial 
action means work performed which is necessary to comply with all 
applicable requirements of UMTRCA or, where appropriate, with applicable 
requirements established by an Agreement State.
    Department means the United States Department of Energy or its 
authorized agents.
    Dry short tons of byproduct material means the quantity of tailings 
generated from the extraction and processing of 2,000 pounds of uranium 
or thorium ore-bearing rock.
    Federal reimbursement ratio means the ratio of Federal-related dry 
short tons of byproduct material to total dry short tons of byproduct 
material present at an active uranium or thorium processing site on 
October 24, 1992. The ratio shall be established by comparing Federal-
related dry short tons of byproduct material to total dry short tons of 
byproduct material present at the site on October 24, 1992, or by 
another means of attributing costs of remedial action to byproduct 
material generated as an incident of sales to the United States which 
the Department determines is more accurate than a ratio established 
using dry short tons of byproduct material.
    Federal-related dry short tons of byproduct material means dry short 
tons of byproduct material that was present at an active uranium or 
thorium processing site on October 24, 1992, and was generated as an 
incident of uranium or thorium sales to the United States.
    Generally accepted accounting principles means those principles 
established by the Financial Accounting Standards Board which encompass 
the conventions, rules, and procedures necessary to define accepted 
accounting practice at a particular time.
    Inflation index means the consumer price index for all urban 
consumers (CPI-U) as published by the Department of Commerce's Bureau of 
Labor Statistics.
    Licensee means a site owner licensed under section 62 or 81 of the 
Atomic Energy Act (42 U.S.C. 2092, 2111) by NRC, or an Agreement State, 
for any activity at an active uranium or thorium processing site which 
results, or has resulted, in the production of byproduct material.
    Maximum reimbursement amount or maximum reimbursement ceiling means 
the smaller of the following two quantities:
    (1) The amount obtained by multiplying the total cost of remedial 
action at the site, as determined in the approved plan for subsequent 
remedial action, by the Federal reimbursement ratio established for the 
site; or
    (2) $6.25, as adjusted for inflation, multiplied by the number of 
Federal-related dry short tons of byproduct material.
    NRC means the United States Nuclear Regulatory Commission or its 
predecessor agency.
    Offsite disposal means the disposal, and activities that contribute 
to the disposal, of byproduct material in a location that is not 
contiguous to the West Chicago Thorium Mill Site located in West 
Chicago, Illinois, in accordance with a plan approved by, or other 
written authorization from, the State of Illinois or NRC provided the 
activities are consistent with the ultimate removal of byproduct 
material from the West Chicago Thorium Mill Site.
    Plan for subsequent remedial action means a plan approved by the 
Department which includes an estimated total cost and schedule for 
remedial action, and all applicable requirements of remedial action 
established by NRC or an Agreement State to be performed after December 
31, 2007, at an active uranium or thorium processing site.
    Reclamation plan or site reclamation plan means a plan, which has 
been approved by NRC or an Agreement State, for remedial action at an 
active processing site that establishes the work necessary to comply 
with applicable requirements of UMTRCA, or where appropriate with 
requirements established by an Agreement State.

[[Page 432]]

    Remedial action means decontamination, decommissioning, reclamation, 
and other remedial action at an active uranium or thorium processing 
site.
    Secretary means the Secretary of Energy or her designees.
    Site owner means a person that presently holds, or held in the past, 
any interest in land, including but not limited to a fee simple 
absolute, surface or subsurface ownership of mining claims, easements, 
and a right of access for the purposes of cleanup, or any other legal or 
equitable interest.
    Tailings means the remaining portion of a metal-bearing ore after 
some or all of the metal, such as uranium, has been extracted.
    The Fund means the Uranium Enrichment Decontamination and 
Decommissioning Fund established at the United States Department of 
Treasury pursuant to section 1801 of the Atomic Energy Act (42 U.S.C. 
2297g).
    Title X or ``the Act'' means Subtitle A of Title X of the Energy 
Policy Act of 1992, Public Law 102-486, 106 Stat. 2776 (42 U.S.C. 2296a-
1 et seq.).
    UMTRCA means the Uranium Mill Tailings Radiation Control Act of 
1978, as amended (42 U.S.C. 7901 et seq.).
    United States means any executive department, commission, or agency, 
or other establishment in the executive branch of the Federal 
Government.
    Written Authorization means a written statement from either the NRC 
or an Agreement State that a licensee has performed in the past, or is 
authorized to perform in the future, a remedial action that is necessary 
to comply with the requirements of UMTRCA or, where appropriate, the 
requirements of an Agreement State.

[59 FR 26726, May 23, 1994, as amended at 68 FR 32957, June 3, 2003]



                    Subpart B_Reimbursement Criteria



Sec. 765.10  Eligibility for reimbursement.

    (a) Any licensee of an active uranium or thorium processing site 
that has incurred costs of remedial action for the site that are 
attributable to byproduct material generated as an incident of sales to 
the United States shall be eligible for reimbursement of these costs, 
subject to the procedures and limitations specified in this part.
    (b) Prior to reimbursement of costs of remedial action incurred by a 
licensee, the Department shall make a determination regarding the total 
quantity of dry short tons of byproduct material, and the quantity of 
Federal-related dry short tons of byproduct material present on October 
24, 1992 at the licensee's active processing site. A claim for 
reimbursement from a site for which a determination is made will be 
evaluated individually. If a licensee does not concur with the 
Department's determination regarding the quantity of dry short tons of 
byproduct material present at the site, the licensee may appeal the 
Department's determination in accordance with Sec. 765.22 of this part. 
The Department's determination shall be used to determine that portion 
of an approved claim for reimbursement submitted by the licensee which 
shall be reimbursed, unless or until the determination is overturned on 
appeal. If the outcome of an appeal requires a change in the 
Department's initial determination, the Department will adjust any 
payment previously made to the licensee to reflect the change.



Sec. 765.11  Reimbursable costs.

    (a) Costs for which a licensee may be reimbursed must be for 
remedial action that a licensee demonstrates is attributable to 
byproduct material generated as an incident of sales to the United 
States, as determined by the Department. These costs are equal to the 
total costs of remedial action at a site multiplied by the Federal 
reimbursement ratio established for the site. These costs must be 
incurred in the performance of activities, prior to or after enactment 
of UMTRCA, and required by a plan, portion thereof, or other written 
authorization, approved by NRC or by an Agreement State. Costs of 
remedial action shall be reimbursable only if approved by the Department 
in accordance with the provisions of this part.
    (b) In addition, costs of remedial action incurred by a licensee 
after December 31, 2007 must be in accordance with a plan for subsequent 
remedial action approved by the Department as specified in Sec. 765.30.

[[Page 433]]

    (c) Total reimbursement of costs of remedial action incurred at an 
active processing site that are otherwise reimbursable pursuant to the 
provisions of this part shall be limited as follows:
    (1) Reimbursement of costs of remedial action to active uranium 
processing site licensees shall not exceed $6.25, as adjusted for 
inflation, multiplied by the number of Federal-related dry short tons of 
byproduct material.
    (2) Aggregate reimbursement of costs of remedial action incurred at 
all active uranium processing sites shall not exceed $350 million. This 
aggregate amount shall be adjusted for inflation pursuant to Sec. 
765.12; and
    (3) Reimbursement of costs of remedial action at the active thorium 
processing site shall be limited to costs incurred for offsite disposal 
and shall not exceed $365 million. This amount shall be adjusted for 
inflation pursuant to Sec. 765.12.
    (d) Notwithstanding the Title X requirement that byproduct material 
must be located at an active processing site on October 24, 1992, 
byproduct material moved from the Edgemont Mill in Edgemont, South 
Dakota, to a disposal site as a result of remedial action, shall be 
eligible for reimbursement in accordance with all applicable 
requirements of this part.

[59 FR 26726, May 23, 1994, as amended at 68 FR 32957, June 3, 2003]



Sec. 765.12  Inflation index adjustment procedures.

    (a) The amounts of $6.25 (as specified in Sec. 765.2(e) of this 
rule) $350 million (as specified in Sec. 765.2(f) of this rule), $365 
million (as specified in Sec. 765.2(g) of this rule) and $715 million 
(as specified in Sec. 765.2(i) of this rule) shall be adjusted for 
inflation as provided by this section.
    (b) To make adjustments for inflation to the amounts specified in 
paragraph (a) of this section, the Department shall apply the CPI-U to 
these amounts annually, beginning in 1994, using the CPI-U as published 
by the Bureau of Labor Statistics within the Department of Commerce for 
the preceding calendar year.
    (c) The Department shall adjust annually, using the CPI-U as defined 
in this part, amounts paid to an active uranium processing site licensee 
for purposes of comparison with the $6.25 per dry short ton limit on 
reimbursement as adjusted for inflation.

[59 FR 26726, May 23, 1994, as amended at 68 FR 32957, June 3, 2003]



 Subpart C_Procedures for Submitting and Processing Reimbursement Claims



Sec. 765.20  Procedures for submitting reimbursement claims.

    (a) All costs of remedial action for which reimbursement is claimed 
must be supported by reasonable documentation as specified in this 
subpart. The Department reserves the right to deny any claim for 
reimbursement, in whole or in part, that is not submitted in accordance 
with the requirements of this subpart.
    (b) The licensee shall provide a copy of the approved site 
reclamation plan or other written authorization from NRC or an Agreement 
State upon which claims for reimbursement are based, with the initial 
claim submitted. Any revision or modification made to the plan or other 
written authorization, which is approved by NRC or an Agreement State, 
shall be included by the licensee in the next claim submitted to the 
Department following that revision or modification. This reclamation 
plan or other written authorization, as modified or revised, shall serve 
as the basis for the Department's evaluation of all claims for 
reimbursement submitted by a licensee.
    (c) Each submitted claim shall provide a summary of all costs of 
remedial action for which reimbursement is claimed. This summary shall 
identify the costs of remedial action associated with each major 
activity or requirement established by the site's reclamation plan or 
other written authorization. In addition, each claim shall provide a 
summary of the documentation relied upon by the licensee in support of 
each cost category for which reimbursement is claimed.
    (d) Documentation used to support a reimbursement claim must 
demonstrate that the costs of remedial action for which reimbursement is

[[Page 434]]

claimed were incurred specifically for activities specified in the 
site's reclamation plan, or otherwise authorized by NRC or an Agreement 
State. Summary documentation used in support of a claim must be cross-
referenced to the relevant page and activity of the licensee's 
reclamation plan, or other written authorization approved by NRC or an 
Agreement State.
    (1) Documentation prepared contemporaneous to the time the cost was 
incurred should be used when available. The documentation should 
identify the date or time period for which the cost was incurred, the 
activity for which the cost was incurred, and the reclamation plan 
provision or other written authorization to which the cost relates. 
Where available, each claim should be supported by receipts, invoices, 
pay records, or other documents that substantiate that each specific 
cost for which reimbursement is claimed was incurred for work that was 
necessary to comply with UMTRCA or applicable Agreement State 
requirements.
    (2) Documentation not prepared contemporaneous to the time the cost 
was incurred, or not directly related to activities specified in the 
reclamation plan or other written authorization, may be used in support 
of a claim for reimbursement provided that the licensee determines the 
documentation is the only means available to document costs for which 
reimbursement is sought.
    (e) The Department may audit, or require the licensee to audit, any 
documentation used to support a claim on a case-by-case basis and may 
approve, approve in part, or deny reimbursement of any claim in 
accordance with the requirements of this part. Documentation relied upon 
by a licensee in support of a claim for reimbursement shall be made 
available to the Department and retained by the licensee until 4 years 
after final payment of a claim is made by the Department.
    (f) Each licensee should utilize generally accepted accounting 
principles consistently throughout the claim. These accounting 
principles, underlying assumptions, and any other information necessary 
for the Department to evaluate the claim shall be set forth in each 
claim.
    (g) Following each annual appropriation by Congress, the Department 
will issue a Federal Register Notice announcing:
    (1) A claim submission deadline for that fiscal year;
    (2) Availability of funds for reimbursement of costs of remedial 
action;
    (3) Whether the Department anticipates that approved claims for that 
fiscal year may be subject to prorated payment;
    (4) Any changes in the Federal reimbursement ratio or maximum 
reimbursement ceiling for any active uranium or thorium processing site;
    (5) Any revision in the per dry short ton limit on reimbursement for 
all active uranium processing sites; and
    (6) Any other relevant information.
    (h) A licensee shall certify, with respect to any claim submitted by 
it for reimbursement, that the work was completed as described in an 
approved reclamation plan or other authorization. In addition, the 
licensee shall certify that all costs for which reimbursement is 
claimed, all documentation relied upon in support of its costs, and all 
statements or representations made in the claim are complete, accurate, 
and true. The certification shall be signed by an officer or other 
official of the licensee with knowledge of the contents of the claim and 
authority to represent the licensee in making the certification. Any 
knowingly false or frivolous statements or representations may subject 
the individual to penalties under the False Claims Act, sections 3729 
through 3731 of title 31 United States Code, or any other applicable 
statutory authority; and criminal penalties under sections 286, 287, 
1001 and 1002 of title 18, United States Code, or any other applicable 
statutory authority.
    (i) All claims for reimbursement submitted to the Department shall 
be sent by registered or certified mail, return receipt requested. The 
Department reserves all rights under applicable law to recover any funds 
paid to licensees which an audit finds to not meet the requirements of 
this part.

[[Page 435]]



Sec. 765.21  Procedures for processing reimbursement claims.

    (a) The Department will conduct a preliminary review of each claim 
within 60 days after the claim submission deadline announced in the 
Federal Register Notice specified in Sec. 765.20(g) to determine the 
completeness of each claim. Payments from the Fund to active uranium or 
thorium processing site licensees for approved costs of remedial action 
will be made simultaneously by the Department within 1 year of the claim 
submission deadline.
    (b) After completing the preliminary review specified in paragraph 
(a) of this section, the Department may audit, or require the licensee 
to audit, any documentation used in support of such claim, request the 
licensee to provide additional information, or request the licensee to 
provide other clarification determined by the Department to be necessary 
to complete its evaluation of the claim. In addition, the Department 
reserves the right to conduct an inspection of the site to verify any 
information provided by the licensee in a claim for reimbursement, or in 
support thereof. Any information requested by the Department, if 
provided, must be submitted by the claimant within 60 days of receipt of 
the request unless the Department specifies in writing that additional 
time is provided.
    (c) At any time during the review of a claim, the Department may 
request an informal conference with a licensee to obtain further 
information or clarification on any unresolved issue pertaining to the 
claim. While the licensee is not required to provide additional 
clarification requested by the Department, a failure to do so may result 
in the denial of that portion of the claim for which information is 
requested.
    (d) Based upon the claim submitted and any additional information 
received by the Department, including any audit or site inspection if 
conducted, the Department shall complete a final review of all relevant 
information prior to making a reimbursement decision. When the 
Department determines it is not clear that an activity for which 
reimbursement is claimed was necessary to comply with UMTRCA or where 
appropriate, with applicable Agreement State requirements, the 
Department may consult with the appropriate regulatory authorities.
    (e) A written decision regarding the Department's determination to 
approve, approve in part, or deny a claim will be provided to the 
licensee within 10 days of completion of the claim review. Within 45 
days after the Department's issuance of a written decision to deny the 
claim due to inadequate documentation, the licensee may request the 
Department to reconsider its decision if the licensee provides 
reasonable documentation in accordance with Sec. 765.20. If a licensee 
chooses not to submit the documentation, the licensee has the right to 
file a formal appeal to a claim denial in accordance with Sec. 765.22. 
If a licensee chooses to submit the documentation, the Department will 
consider whether the documentation results in the Department's reversal 
of the initial decision to deny the claim and will inform the licensee 
of the Department's subsequent decision. The licensee may appeal that 
decision in accordance with Sec. 765.22.
    (f) If the Department determines that insufficient funds are 
available at any time to provide for complete payment of all outstanding 
approved claims, reimbursements of approved claims will be made on a 
prorated basis. A prorated payment of all outstanding approved claims 
for reimbursement, or any unpaid portion thereof, shall be made on the 
basis of the total amount of all outstanding approved claims, regardless 
of when the claims were submitted or approved.
    (g) Notwithstanding the provisions of paragraph (f) of this section, 
or any other provisions of this part, any requirement for the payment or 
obligation of funds by the Department established by this part shall be 
subject to the availability of appropriated funds, and no provision 
herein shall be interpreted to require obligation or payment of funds in 
violation of the Anti-Deficiency Act (31 U.S.C. 1341).

[59 FR 26726, May 23, 1994, as amended at 68 FR 32957, June 3, 2003]



Sec. 765.22  Appeals procedures.

    (a) Any appeal by a licensee of any Department determination subject 
to

[[Page 436]]

the requirements of this part, shall invoke the appeals process 
specified in paragraph (b) of this section.
    (b) A licensee shall file an appeal of any Department determination 
subject to the requirements of this part with the Office of Hearings and 
Appeals, U.S. Department of Energy, 1000 Independence Avenue, SW., 
Washington, DC 20585. Any appeal must be filed within 45 days from the 
date the licensee received notice, actual or constructive (i.e., 
publication in the Federal Register), of the Department's determination. 
Appeals must comply with the procedures set forth in 10 CFR part 1003, 
subpart C. The decision of the Office of Hearings and Appeals shall be 
the final decision of the Department. A licensee must file an appeal in 
order to exhaust its administrative remedies, and the receipt of an 
appellate decision is a prerequisite to seeking judicial review of any 
determination made under this part.

[59 FR 26726, May 23, 1994, as amended at 60 FR 15017, Mar. 21, 1995]



Sec. 765.23  Annual report.

    The Department shall prepare annually a report summarizing pertinent 
information concerning claims submitted in the previous calendar year, 
the status of the Department's review of the claims, determinations made 
regarding the claims, amounts paid for claims approved, and other 
relevant information concerning this reimbursement program. The report 
will be available to all interested parties upon written request to the 
Department's National Nuclear Security Administration Service Center, 
Office of Technical Services, Environmental Programs Department, P.O. 
Box 5400, Albuquerque, NM 87185-5400 and will also be available in the 
Department's Freedom of Information Reading room, 1000 Independence 
Avenue SW., Washington, DC.

[59 FR 26726, May 23, 1994, as amended at 68 FR 32957, June 3, 2003]



              Subpart D_Additional Reimbursement Procedures



Sec. 765.30  Reimbursement of costs incurred in accordance with a plan for subsequent remedial action.

    (a) This section establishes procedures governing reimbursements of 
costs of remedial action incurred in accordance with a plan for 
subsequent remedial action approved by the Department as provided in 
this section. Costs otherwise eligible for reimbursement in accordance 
with the terms of this part and incurred in accordance with the plan 
shall be reimbursed in accordance with the provisions of subpart D and 
subpart C. In the event there is an inconsistency between the 
requirements of subpart D and subpart C, the provisions of subpart D 
shall govern reimbursement of such costs of remedial action.
    (b) A licensee who anticipates incurring costs of remedial action 
after December 31, 2007 may submit a plan for subsequent remedial 
action. This plan may be submitted at any time after January 1, 2005, 
but no later than December 31, 2006. Reimbursement of costs of remedial 
action incurred after December 31, 2007 shall be subject to the approval 
of this plan by the Department. This plan shall describe:
    (1) All applicable requirements established by NRC pursuant to 
UMTRCA, or where appropriate, by the requirements of an Agreement State, 
included in a reclamation plan approved by NRC or an Agreement State 
which have not yet been satisfied in full by the licensee, and
    (2) The total cost of remedial action required at the site, together 
with all necessary supporting documentation, segregated into actual 
costs incurred to date, costs incurred or expected to be incurred prior 
to December 31, 2007 but not yet approved for reimbursement, and 
anticipated future costs.
    (c) The Department shall review the plan for subsequent remedial 
action to verify conformance with the NRC- or Agreement State-approved 
reclamation plan or other written authorization, and to determine the 
reasonableness of anticipated future costs, and shall approve, approve 
with suggested modifications, or reject the plan. During its

[[Page 437]]

review, the Department may request additional information from the 
licensee to clarify or provide support for any provision or estimate 
contained in the plan. The Department may also consult with NRC or an 
Agreement State concerning any provision or estimate contained in the 
plan. Upon approval, approval with modifications, or rejection of a 
plan, the Department shall inform and explain to the licensee its 
decision.
    (d) If the Department rejects a plan for subsequent remedial action 
submitted by a licensee, the licensee may appeal the Department's 
rejection or prepare and submit a revised plan. The licensee may 
continue to submit revised plans for subsequent remedial action until 
the Department approves a plan, or September 30, 2007, whichever occurs 
first. A failure by a licensee to receive approval from the Department 
of a plan prior to December 31, 2007 will preclude that licensee from 
receiving any reimbursement for costs of remedial action incurred after 
that date.
    (e) The Department shall determine, in approving a plan for 
subsequent remedial action, the maximum reimbursement amount for which 
the licensee may be eligible. This maximum reimbursement amount shall be 
the smaller of the following two quantities:
    (1) The amount obtained by multiplying the total cost of remedial 
action at the site, as determined in the approved plan for subsequent 
remedial action, by the Federal reimbursement ratio established for such 
site; or
    (2) For the uranium site licensees only, $6.25, as adjusted for 
inflation, multiplied by the number of Federal-related dry short tons of 
byproduct material. For all licensees, the Department shall subtract 
from the maximum reimbursement amount any reimbursement already approved 
to be paid to the licensee. The resulting sum shall be the potential 
additional reimbursement to which the licensee may be entitled. This 
resulting sum will be adjusted after the approval of claims for work 
performed through December 31, 2007, to reflect the actual approved 
costs of work performed through that date.

[59 FR 26726, May 23, 1994, as amended at 68 FR 32957, June 3, 2003]



Sec. 765.31  Designation of funds available for subsequent remedial action.

    (a) The Department shall authorize reimbursement of costs of 
remedial action, incurred in accordance with an approved plan for 
subsequent remedial action and approved by the Department as specified 
in subpart C to this part, to be made from the Fund. These costs are 
reimbursable until:
    (1) This remedial action has been completed, or
    (2) The licensee has been reimbursed its maximum reimbursement 
amount as determined by the Department pursuant to paragraph (e) of 
Sec. 765.30.
    (b) A licensee shall submit any claim for reimbursement of costs of 
remedial action incurred pursuant to an approved plan for subsequent 
remedial action in accordance with the requirements of subpart C of this 
part. The Department shall approve, approve in part, or deny any claims 
in accordance with the procedures specified in subpart C of this part. 
The Department shall authorize the disbursement of funds upon approval 
of a claim for reimbursement.
    (c) After all remedial actions have been completed by affected 
Agreement State or NRC licensees, the Department will issue a Federal 
Register notice announcing a termination date beyond which claims for 
reimbursement will no longer be accepted.

[59 FR 26726, May 23, 1994, as amended at 68 FR 32958, June 3, 2003]



Sec. 765.32  Reimbursement of excess funds.

    (a) No later than December 31, 2008, the Department shall determine 
if the aggregate amount authorized for appropriation pursuant to section 
1003 of the Act (42 U.S.C. 2296a-2), as adjusted for inflation pursuant 
to Sec. 765.12, exceed as of that date the combined total of all 
reimbursements which have been paid to licensees under this part, any 
amounts approved for reimbursement and owed to any licensee, and any 
anticipated additional reimbursements to be made in accordance with 
approved plans for subsequent remedial action.
    (b) If the Department determines that the amount authorized pursuant 
to section 1003 of the Act (42 U.S.C.

[[Page 438]]

2296a-2), as adjusted for inflation, exceed the combined total of all 
reimbursements (as indicated in paragraph (a) of this section), the 
Department may establish procedures for providing additional 
reimbursement to uranium licensees for costs of remedial action, subject 
to the availability of appropriated funds. If the amount of available 
excess funds is insufficient to provide reimbursement of all eligible 
costs of remedial action, then reimbursement shall be paid on a prorated 
basis.
    (c) Each eligible uranium licensee's prorated share will be 
determined by dividing the total excess funds available by the total 
number of Federal-related dry short tons of byproduct material present 
at the site where costs of remedial action exceed $6.25 per dry short 
ton, as adjusted for inflation pursuant to Sec. 765.12. The resulting 
number will be the maximum cost per dry short ton, over $6.25, that may 
be reimbursed. Total reimbursement for each licensee that has incurred 
approved costs of remedial action in excess of $6.25 per dry short ton 
will be the product of the excess cost per dry short ton multiplied by 
the number of Federal-related dry short tons of byproduct material at 
the site or the actual costs incurred and approved by the Department, 
whichever is less.
    (d) Any costs of remedial action for which reimbursement is sought 
from excess funds determined by the Department to be available is 
subject to all requirements of this part except the per dry short ton 
limit on reimbursement established by paragraph (d) of Sec. 765.11.

[59 FR 26726, May 23, 1994, as amended at 68 FR 32957, June 3, 2003]



PART 766_URANIUM ENRICHMENT DECONTAMINATION AND DECOMMISSIONING FUND; PROCEDURES FOR SPECIAL ASSESSMENT OF DOMESTIC UTILITIES--Table of Contents



                            Subpart A_General

Sec.
766.1 Purpose.
766.2 Applicability.
766.3 Definitions.

               Subpart B_Procedures for Special Assessment

766.100 Scope.
766.101 Data utilization.
766.102 Calculation methodology.
766.103 Special Assessment invoices.
766.104 Reconciliation, adjustments and appeals.
766.105 Payment procedures.
766.106 Late payment fees.
766.107 Prepayment of future Special Assessments.

    Authority: 42 U.S.C. 2201, 2297g, 2297g-1, 2297g-2, 7254.

    Source: 59 FR 41963, Aug. 15, 1994, unless otherwise noted.



                            Subpart A_General



Sec. 766.1  Purpose.

    The provisions of this part establish procedures for the Special 
Assessment of domestic utilities for the Uranium Enrichment 
Decontamination and Decommissioning Fund pursuant to sections 1801, 1802 
and 1803 of the Atomic Energy Act of 1954, as amended (42 U.S.C. Sec. 
2011 et seq.).



Sec. 766.2  Applicability.

    This part applies to all domestic utilities in the United States 
that purchased separative work units from the DOE between 1945 and 
October 23, 1992.



Sec. 766.3  Definitions.

    For the purposes of this part, the following terms shall be defined 
as follows:
    CPI-U means the Consumer Price Index for all-urban consumers 
published by the Department of Labor.
    Commercial electricity generation means the production of 
electricity for sale to consumers.
    DOE means the United States Department of Energy and its predecessor 
agencies.
    Domestic utility means any utility in the United States that has 
purchased SWUs produced by DOE for the purpose of commercial electrical 
generation during the period beginning in 1945 to October 23, 1992.
    Fund means an account in the U.S. Treasury referred to as the 
Uranium Enrichment Decontamination and Decommissioning Fund, established 
by

[[Page 439]]

section 1801 of the Atomic Energy Act of 1954, as amended.
    Oak Ridge Operations Office means the Oak Ridge Operations Office of 
the Department of Energy in Oak Ridge, Tennessee.
    Special Assessment means the Special Assessment levied on domestic 
utilities for payments into the Fund.
    SWU means a separative work unit, the common measure by which 
uranium enrichment services are sold.
    TESS means the Toll Enrichment Services System, which is the 
database that tracks uranium enrichment services transactions of the DOE 
Oak Ridge Operations Office for the purpose of planning, toll 
transaction processing, customer invoicing and historical tracking of 
SWU deliveries.
    Use and burnup charges mean lease charges for the consumption of 
SWUs and natural uranium.



               Subpart B_Procedures for Special Assessment



Sec. 766.100  Scope.

    This subpart sets forth the procedures for the Special Assessment of 
domestic utilities for funds to be deposited in the Fund.



Sec. 766.101  Data utilization.

    DOE shall use the records from the Toll Enrichment Services System 
(TESS) and other records maintained by the Oak Ridge Operations Office 
in order to determine the total SWUs purchased from DOE for all 
purposes. DOE shall use records from TESS, relevant records of domestic 
utilities, and such other information as DOE deems to be reliable and 
probative in determining the number of SWUs that were purchased by each 
domestic utility prior to October 24, 1992. A domestic utility shall be 
considered to have purchased a SWU from DOE if the SWU was produced by 
DOE but purchased by the domestic utility from another source. DOE shall 
consider a purchase to have occurred upon the delivery of a SWU to the 
domestic utility purchasing the SWU. A domestic utility shall not be 
considered to have purchased a SWU from DOE if the SWU was purchased by 
the domestic utility but subsequently sold to another source.



Sec. 766.102  Calculation methodology.

    (a) Calculation of Domestic Utilities' Annual Assessment Ratio to 
the Fund. Domestic utilities shall be assessed annually for their share 
of the Fund. The amount of the assessment shall be determined by the 
ratio of SWUs produced by DOE and purchased by domestic utilities prior 
to October 24, 1992, to the total number of SWUs produced by DOE for all 
purposes (including SWUs produced for defense purposes). All 
calculations will be carried out to the fifth significant digit. This 
ratio is expressed by the following hypothetical example:

------------------------------------------------------------------------
 SWUs purchased                 Total SWUs                   Special
by all domestic               produced--all                 assessment
   utilities                     purposes                     ratio
------------------------------------------------------------------------
      12345          /             45678            =         .27026
------------------------------------------------------------------------

    (b) Calculation of the Baseline Total Annual Special Assessment for 
Domestic Utilities. The Annual Special Assessment ratio calculated in 
paragraph (a) of this section shall be multiplied by $480 million, 
yielding the total amount of the Baseline Total Annual Special 
Assessment as of October 1992. In the event that this amount is in 
excess of $150 million, the Baseline Total Annual Special Assessment 
shall be capped at $150 million. All calculations will be carried out to 
the fifth significant digit. The Baseline Total Annual Special 
Assessment is determined as shown in the following hypothetical example:

------------------------------------------------------------------------
                                  Annual                Baseline total
     Total fund                 assessment              annual special
                                   ratio                  assessment
------------------------------------------------------------------------
     $480,000,000        x        0.27026        =        $129,724,800
------------------------------------------------------------------------

    (c) Calculation of Baseline Total Annual Special Assessment per 
Utility. The ratio of the total number of SWUs purchased by an 
individual domestic utility for commercial electricity generation, to 
the total number of SWUs purchased by all domestic utilities for 
commercial electricity generation, multiplied by the Baseline Total 
Annual Special Assessment calculated in paragraph (b) of this section, 
determines an individual utility's share of

[[Page 440]]

the Baseline Total Annual Special Assessment. All calculations will be 
carried out to the fifth significant digit. A hypothetical example of 
such a calculation follows:

----------------------------------------------------------------------------------------------------------------
                                                                           Baseline total
    Single               All utility            Utility ratio              annual special     Individual utility
 utility SWUs                SWUs                                            assessment       special Assessment
----------------------------------------------------------------------------------------------------------------
        300        /          12345        =         .02430        x         $129,724,800        $3,152,312.64
----------------------------------------------------------------------------------------------------------------

    (d) Calculation of Inflation Adjustment. The Baseline Total Annual 
Special Assessment billed to domestic utilities shall be adjusted for 
inflation using the most recently published monthly CPI-U and the CPI-U 
for October 1992. All calculations will be carried out to the fifth 
significant digit. A hypothetical example of such a calculation follows:

------------------------------------------------------------------------
                                                           Adjustment
 CPI-U (Mar 93)               CPI-U (Oct 92)               multiplier
------------------------------------------------------------------------
          150          /            141.8         =          1.05783
------------------------------------------------------------------------


 
  Utility special              Adjustment              Adjusted utility
     Assessment                multiplier                 assessment
 
    $3,152,312.64       x        1.05783        =        $3,334,610.88
 



Sec. 766.103  Special Assessment invoices.

    (a) DOE shall issue annually a Special Assessment invoice to each 
domestic utility. This invoice will specify itemized quantities of 
enrichment services by reactor. In each Special Assessment invoice, DOE 
shall require payment, on or before 30 days from the date of each 
invoice, of that utility's prorated share of the Baseline Total Annual 
Special Assessment, as adjusted for inflation using the most recently 
published monthly CPI-U data.
    (b) DOE shall enclose with the Fiscal Year 1993 Special Assessment 
invoice a sealed, business confidential, summary SWU transaction 
statement including:
    (1) TESS information which documents, by reactor, the basis of the 
utility's assessment;
    (2) A list of domestic utilities subject to the Special Assessment;
    (3) The total number of SWUs purchased from DOE by all domestic 
utilities for all purposes prior to October 24, 1992.
    (4) The total number of SWUs purchased from DOE for all purposes 
prior to October 24, 1992, including SWUs purchased or produced for 
defense purposes; and
    (5) Such other information as may be appropriate.
    (c) With regard to any fiscal year after Fiscal Year 1993, DOE shall 
enclose a summary SWU transaction statement with Special Assessment 
invoices that will include updated information regarding adjustments to 
Special Assessments resulting from the reconciliation and appeals 
process under Section 766.104.
    (d) The date of each Annual Special Assessment invoicing will be set 
on or about October 1 with payment due 30 calendar days from the date of 
invoice starting with the Fiscal Year 1995 Special Assessment.



Sec. 766.104  Reconciliation, adjustments and appeals.

    (a) A domestic utility requesting an adjustment shall, within 30 
days from the date of a Special Assessment invoice, file a notice 
requesting an adjustment. Such notice shall include an explanation of 
the basis for the adjustment and any supporting documents, and may 
include a request for a meeting with DOE to discuss its invoice. If more 
time is needed to gather probative information, DOE will consider 
utility requests for up to 90 days additional time, providing that the 
initial notice requesting an adjustment was timely filed. The notice 
shall be filed at the address set forth in the Special Assessment 
invoice, and filing of this notice is complete only upon receipt by DOE. 
Domestic utilities are considered to have met the filing requirements 
upon DOE's receipt of the notice requesting an adjustment without regard 
to DOE's acceptance of supporting documentation. The filing of a notice 
for an adjustment shall not stay the obligation to pay.
    (b) DOE may request additional information from domestic utilities 
and may acquire data from other sources.

[[Page 441]]

    (c) After reviewing a notice submitted under paragraph (a) of this 
section and other relevant information, and after making any necessary 
adjustment to its records in light of reliable and adequately probative 
records submitted in connection with the request for adjustment or 
otherwise obtained by DOE, DOE shall make a written determination 
granting or denying the requested adjustment. As appropriate, DOE shall 
modify the application of TESS data for any discrepancies or further 
transactions raised during the reconciliation process.
    (d) Any domestic utility that wishes to dispute a written 
determination under paragraph (c) of this section shall have the right 
to file an appeal with the Office of Hearings and Appeals, U.S. 
Department of Energy, 1000 Independence Avenue S.W., Washington, DC 
20585. Except for the Fiscal Year 1993 Special Assessment, any appeal 
must be filed on or before 30 days from the date of the written 
determination and should contain information of the type described in 10 
CFR part 1003, subpart C. With regard to a written determination under 
paragraph (c) of this section concerning a Fiscal Year 1993 Special 
Assessment, a domestic utility must file an appeal on or before 30 days 
from the effective date of this paragraph or from the date of such 
written determination, whichever is later. The decision of the Office of 
Hearings and Appeals shall be the final decision of DOE. Upon completion 
of the reconciliation process, all records of SWU transactions shall be 
finalized and shall become the basis of subsequent Special Assessment 
invoices. These records shall be revised to reflect any decisions from 
the Office of Hearings and Appeals and any applicable court rulings.
    (e) Refunds of Special Assessments shall be provided in cases where 
DOE has determined, as a result of reconciliation, that an overpayment 
has been made by a domestic utility, and that the domestic utility has 
no further current obligation to DOE.

[59 FR 41963, Aug. 15, 1994, as amended at 60 FR 15017, Mar. 21, 1995]



Sec. 766.105  Payment procedures.

    DOE shall specify payment details and instructions in all Special 
Assessment invoices. Each domestic utility shall make payments to the 
Fund by wire transfer to the Department of Treasury.



Sec. 766.106  Late payment fees.

    In the case of a late payment by a domestic utility of its Special 
Assessment, the domestic utility shall pay interest at the per annum 
rate (365-day basis) established by DOE for general application to 
monies due DOE and not received by DOE on or before a designated due 
date. Interest shall accrue beginning the date of the designated payment 
except that, whenever the due date falls on a Saturday, Sunday, or a 
United States legal holiday, interest shall commence on the next day 
immediately following which is not a Saturday, Sunday, or United States 
legal holiday. Late payment provisions for the Special Assessment to the 
Fund shall be based on the Treasury Current Value of Funds Rate (which 
is published annually by the Treasury and used in assessing interest 
charges for outstanding debts on claims owed to the United States 
Government), plus six (6) percent pro rata on a daily basis. The 
additional six (6) percent charge shall not go into effect until five 
(5) business days after payment was originally due. Late payment fees 
shall be invoiced within two days of receipt of utility payment of the 
special assessment when delinquency is less than 30 days. For longer 
periods of delinquency, DOE will submit additional invoices, as 
appropriate. Late payment fees will be due 30 days from the date of 
invoice.



Sec. 766.107  Prepayment of future Special Assessments

    DOE shall accept prepayment of future Special Assessments upon 
request by a domestic utility. A domestic utility's liability for the 
future assessments shall be satisfied to the extent of the prepayments. 
DOE shall use the pro rata share of prepayments attributable to a given 
fiscal year plus the Special Assessments collected from utilities who 
did not prepay for that fiscal year, in order to determine that

[[Page 442]]

the total amount of Special Assessments collected from domestic 
utilities in a given fiscal year does not exceed $150 million, annually 
adjusted for inflation.



PART 770_TRANSFER OF REAL PROPERTY AT DEFENSE NUCLEAR FACILITIES FOR ECONOMIC DEVELOPMENT--Table of Contents



Sec.
770.1 What is the purpose of this part?
770.2 What real property does this part cover?
770.3 What general limitations apply to this part?
770.4 What definitions are used in this part?
770.5 How does DOE notify persons and entities that defense nuclear 
          facility real property is available for transfer for economic 
          development?
770.6 May interested persons and entities request that real property at 
          defense nuclear facilities be transferred for economic 
          development?
770.7 What procedures are to be used to transfer real property at 
          defense nuclear facilities for economic development?
770.8 May DOE transfer real property at defense nuclear facilities for 
          economic development at less than fair market value?
770.9 What conditions apply to DOE indemnification of claims against a 
          person or entity based on the release or threatened release of 
          a hazardous substance or pollutant or contaminant attributable 
          to DOE?
770.10 When must a person or entity, who wishes to contest a DOE denial 
          of request for indemnification of a claim, begin legal action?
770.11 When does a claim ``accrue'' for purposes of notifying the Field 
          Office Manager under Sec. 770.9(a) of this part?

    Authority: 42 U.S.C. 7274q.

    Source: 65 FR 10689, Feb. 29, 2000, unless otherwise noted.



Sec. 770.1  What is the purpose of this part?

    (a) This part establishes how DOE will transfer by sale or lease 
real property at defense nuclear facilities for economic development.
    (b) This part also contains the procedures for a person or entity to 
request indemnification for any claim that results from the release or 
threatened release of a hazardous substance or pollutant or contaminant 
as a result of DOE activities at the defense nuclear facility.



Sec. 770.2  What real property does this part cover?

    (a) DOE may transfer DOE-owned real property by sale or lease at 
defense nuclear facilities, for the purpose of permitting economic 
development.
    (b) DOE may transfer, by lease only, improvements at defense nuclear 
facilities on land withdrawn from the public domain, that are excess, 
temporarily underutilized, or underutilized, for the purpose of 
permitting economic development.



Sec. 770.3  What general limitations apply to this part?

    (a) Nothing in this part affects or modifies in any way section 
120(h) of the Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (42 U.S.C. 9620(h)).
    (b) Individual proposals for transfers of property are subject to 
NEPA review as implemented by 10 CFR part 1021.
    (c) Any indemnification agreed to by the DOE is subject to the 
availability of funds.



Sec. 770.4  What definitions are used in this part?

    Community Reuse Organization or CRO means a governmental or non-
governmental organization that represents a community adversely affected 
by DOE work force restructuring at a defense nuclear facility and that 
has the authority to enter into and fulfill the obligations of a DOE 
financial assistance agreement.
    Claim means a request for reimbursement of monetary damages.
    Defense Nuclear Facility means ``Department of Energy defense 
nuclear facility'' within the meaning of section 318 of the Atomic 
Energy Act of 1954 (42 U.S.C. 2286g).
    DOE means the United States Department of Energy.
    DOE Field Office means any of DOE's officially established 
organizations and components located outside the Washington, D.C., 
metropolitan area. (See Field Office Manager.)
    Economic Development means the use of transferred DOE real property 
in a

[[Page 443]]

way that enhances the production, distribution, or consumption of goods 
and services in the surrounding region(s) and furthers the public policy 
objectives of the laws governing the downsizing of DOE's defense nuclear 
facilities.
    Excess Real Property means any property under DOE control that the 
Field Office, cognizant program, or the Secretary of Energy have 
determined, according to applicable procedures, to be no longer needed.
    Field Office Manager means the head of the DOE Operations Offices or 
Field Offices associated with the management and control of defense 
nuclear facilities.
    Hazardous Substance means a substance within the definition of 
``hazardous substances'' in subchapter I of the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) (42 
U.S.C. 9601(14)).
    Indemnification means the responsibility for reimbursement of 
payment for any suit, claim, demand or action, liability, judgment, 
cost, or other fee arising out of any claim for personal injury or 
property damage, including business losses consistent with generally 
accepted accounting practices, which involve the covered real property 
transfers. Indemnification payments are subject to the availability of 
appropriated funds.
    Person or Entity means any state, any political subdivision of a 
state or any individual person that acquires ownership or control of 
real property at a defense nuclear facility.
    Pollutant or Contaminant means a substance identified within the 
definition of ``pollutant or contaminant'' in section 101(33) of CERCLA 
(42 U.S.C. 9601(33)).
    Real Property means all interest in land, together with the 
improvements, structures, and fixtures located on the land (usually 
including prefabricated or movable structures), and associated 
appurtenances under the control of any federal agency.
    Release means a ``release'' as defined in subchapter I of CERCLA (42 
U.S.C. 9601(22)).
    Underutilized Real Property or Temporarily Underutilized Real 
Property means the entire property or a portion of the real property 
(with or without improvements) that is used only at irregular intervals, 
or which is used by current DOE missions that can be satisfied with only 
a portion of the real property.



Sec. 770.5  How does DOE notify persons and entities that defense nuclear facility real property is available for transfer for economic development?

    (a) Field Office Managers annually make available to Community Reuse 
Organizations and other persons and entities a list of real property at 
defense nuclear facilities that DOE has identified as appropriate for 
transfer for economic development. Field Office Managers may use any 
effective means of publicity to notify potentially-interested persons or 
entities of the availability of the list.
    (b) Upon request, Field Office Managers provide to interested 
persons and entities relevant information about listed real property, 
including information about a property's physical condition, 
environmental, safety and health matters, and any restrictions or terms 
of transfer.



Sec. 770.6  May interested persons and entities request that real property at defense nuclear facilities be transferred for economic development?

    Any person or entity may request that specific real property be made 
available for transfer for economic development pursuant to procedures 
in Sec. 770.7. A person or entity must submit such a request in writing 
to the Field Office Manager who is responsible for the real property.



Sec. 770.7  What procedures are to be used to transfer real property at defense nuclear facilities for economic development?

    (a) Proposal. The transfer process starts when a potential purchaser 
or lessee submits to the Field Office Manager a proposal for the 
transfer of real property that DOE has included on a list of available 
real property, as provided in Sec. 770.5 of this part.
    (1) A proposal must include (but is not limited to):
    (i) A description of the real property proposed to be transferred;

[[Page 444]]

    (ii) The intended use and duration of use of the real property;
    (iii) A description of the economic development that would be 
furthered by the transfer (e.g., jobs to be created or retained, 
improvements to be made);
    (iv) Information supporting the economic viability of the proposed 
development; and
    (v) The consideration offered and any financial requirements.
    (2) The person or entity should state in the proposal whether it is 
or is not requesting indemnification against claims based on the release 
or threatened release of a hazardous substance or pollutant or 
contaminant resulting from DOE activities.
    (3) If a proposal for transfer does not contain a statement 
regarding indemnification, the Field Office Manager will notify the 
person or entity by letter of the potential availability of 
indemnification under this part, and will request that the person or 
entity either modify the proposal to include a request for 
indemnification or submit a statement that it is not seeking 
indemnification.
    (b) Decision to transfer real property. Within 90 days after receipt 
of a proposal, DOE will notify, by letter, the person or entity that 
submitted the proposal of DOE's decision whether or not a transfer of 
the real property by sale or lease is in the best interest of the 
Government. If DOE determines the transfer is in the Government's best 
interest, then the Field Office Manger will begin development of a 
transfer agreement.
    (c) Congressional committee notification. DOE may not transfer real 
property under this part until 30 days have elapsed after the date DOE 
notifies congressional defense committees of the proposed transfer. The 
Field Office Manager will notify congressional defense committees 
through the Secretary of Energy.
    (d) Transfer. After the congressional committee notification period 
has elapsed, the Field Office Manager:
    (1) Finalizes negotiations of a transfer agreement, which must 
include a provision stating whether indemnification is or is not 
provided;
    (2) Ensures that any required environmental reviews have been 
completed; and
    (3) Executes the documents required for the transfer of property to 
the buyer or lessee.



Sec. 770.8  May DOE transfer real property at defense nuclear facilities for economic development at less than fair market value?

    DOE generally attempts to obtain fair market value for real property 
transferred for economic development, but DOE may agree to sell or lease 
such property for less than fair market value if the statutory transfer 
authority used imposes no market value restriction, and:
    (a) The real property requires considerable infrastructure 
improvements to make it economically viable, or
    (b) A conveyance at less than market value would, in the DOE's 
judgment, further the public policy objectives of the laws governing the 
downsizing of defense nuclear facilities.



Sec. 770.9  What conditions apply to DOE indemnification of claims against 

a person or entity based on the release or threatened release of a hazardous 
          substance or pollutant or contaminant attributable to DOE?

    (a) If an agreement for the transfer of real property for economic 
development contains an indemnification provision, the person or entity 
requesting indemnification for a particular claim must:
    (1) Notify the Field Office Manager in writing within two years 
after such claim accrues under Sec. 770.11 of this part;
    (2) Furnish the Field Office Manager, or such other DOE official as 
the Field Office Manager designates, with evidence or proof of the 
claim;
    (3) Furnish the Field Office Manager, or such other DOE official as 
the Field Office Manager designates, with copies of pertinent papers 
(e.g., legal documents) received by the person or entity;
    (4) If requested by DOE, provide access to records and personnel of 
the person or entity for purposes of defending or settling the claim; 
and
    (5) Provide certification that the person or entity making the claim 
did not

[[Page 445]]

contribute to any such release or threatened release.
    (b) DOE will enter into an indemnification agreement if DOE 
determines that indemnification is essential for the purpose of 
facilitating reuse or redevelopment.
    (c) DOE may not indemnify any person or entity for a claim if the 
person or entity contributed to the release or threatened release of a 
hazardous substance or pollutant or contaminant that is the basis of the 
claim.
    (d) DOE may not indemnify a person or entity for a claim made under 
an indemnification agreement if the person or entity refuses to allow 
DOE to settle or defend the claim.



Sec. 770.10  When must a person or entity, who wishes to contest a DOE denial of request for indemnification of a claim, begin legal action?

    If DOE denies the claim, DOE must provide the person or entity with 
a notice of final denial of the claim by DOE by certified or registered 
mail. The person or entity must begin legal action within six months 
after the date of mailing.



Sec. 770.11  When does a claim ``accrue'' for purposes of notifying the Field Office Manager under Sec. 770.9(a) of this part?

    For purposes of Sec. 770.9(a) of this part, a claim ``accrues'' on 
the date on which the person asserting the claim knew, or reasonably 
should have known, that the injury to person or property was caused or 
contributed to by the release or threatened release of a hazardous 
substance, pollutant, or contaminant as a result of DOE activities at 
the defense nuclear facility on which the real property is located.



PART 780_PATENT COMPENSATION BOARD REGULATIONS--Table of Contents



                      Subpart A_General Provisions

Sec.
780.1 Scope.
780.2 Definitions.
780.3 Jurisdiction of the Patent Compensation Board.
780.4 Filing and service of documents.
780.5 Applications--General form, content, and filing.
780.6 Department participation.
780.7 Designation of interested persons as parties.
780.8 Security.
780.9 Rules of procedure before the Board.
780.10 Decision of the Board.
780.11 Records of the Board.

  Subpart B_Declaring Patents Affected With the Public Interest Under 
              Section 153a of the Atomic Energy Act of 1954

780.20 Initiation of proceeding.
780.21 Notice.
780.22 Opposition, support and request for hearing.
780.23 Hearing and decision.
780.24 Criteria for declaring a patent affected with the public 
          interest.

 Subpart C_Application for a License Pursuant to Section 153b(2) of the 
                        Atomic Energy Act of 1954

780.30 Filing of application.
780.31 Contents of application.
780.32 Response and request for hearing.
780.33 Hearing and decision.
780.34 Criteria for decision to issue a license.
780.35 Communication of decision to General Counsel.
780.36 Conditions and issuance of license.

  Subpart D_Application for a License Pursuant to Section 153c of the 
                        Atomic Energy Act of 1954

780.40 Filing of application.
780.41 Contents of application.
780.42 Notice of hearing.
780.43 Response.
780.44 Hearing and decision.
780.45 Criteria for decision to issue a license.
780.46 Communication of decision to General Counsel.
780.47 Conditions and issuance of license.

Subpart E_Application for Royalties and Awards Under Section 157 of the 
  Atomic Energy Act of 1954 and Compensation Under Section 173 of the 
 Atomic Energy Act of 1954 and the Invention Secrecy Act (35 U.S.C. 183)

780.50 Applicants.
780.51 Form and content.
780.52 Notice and hearing.
780.53 Criteria for decisions for royalties, awards and compensation.

    Authority: 42 U.S.C. 7151, 7254; 42 U.S.C. 5814, 5815; 42 U.S.C. 
2183, 2187, 2223; 35 U.S.C. 183; North American Free Trade Agreement, 
Article 1709(10), as implemented by the North American Free Trade 
Agreement Implementing Act, Pub. L. 103-182.

[[Page 446]]


    Source: 46 FR 39581, Aug. 4, 1981, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 780.1  Scope.

    The regulations in this part establish the procedures, terms, and 
conditions for Patent Compensation Board:
    (a) Proceedings to declare a patent affected with the public 
interest pursuant to section 153a of the Atomic Energy Act of 1954 (Pub. 
L. 83-703; 42 U.S.C. 2183);
    (b) Proceedings to determine a reasonable royalty fee pursuant to 
section 157 of the Atomic Energy Act of 1954;
    (c) Proceedings for the grant of an award pursuant to section 157 of 
the Atomic Energy Act of 1954;
    (d) Proceedings to obtain compensation pursuant to section 173 of 
the Atomic Energy Act of 1954 and the Invention Secrecy Act (35 U.S.C. 
183);

And for applications to the Department of Energy (DOE) for a patent 
license pursuant to sections 153b(2) and 153c of the Atomic Energy Act 
of 1954.



Sec. 780.2  Definitions.

    (a) Act means the Atomic Energy Act of 1954 (Pub. L. 83-703; 42 
U.S.C. 2011).
    (b) Application means the application filed by an applicant for a 
patent license, for the determination of a reasonable royalty fee, for 
an award, or for compensation under this part.
    (c) Board means the Patent Compensation Board.
    (d) Chairman means the Chairman of the Patent Compensation Board.
    (e) Department, or DOE, or Department of Energy means the Department 
of Energy, established by the Department of Energy Organization Act 
(Pub. L. 95-91; 42 U.S.C. 7101).
    (f) Party means the applicant, patent owner, Department 
representative, and any person admitted as a party by the Board for any 
proceeding under this part.
    (g) Patent Owner means the owner of record in the United States 
Patent and Trademark Office.
    (h) Secretary means the Secretary of the Department of Energy or the 
delegate of the Secretary of Energy.



Sec. 780.3  Jurisdiction of the Patent Compensation Board.

    The Patent Compensation Board was established by section 157 of the 
Atomic Energy Act of 1954. It was transferred to the Energy Research and 
Development Administration pursuant to section 104(d) of the Energy 
Reorganization Act of 1974 (42 U.S.C. 5814) and subsequently to the 
Department of Energy by section 301 of the Department of Energy 
Organization Act (42 U.S.C. 7151). Under section 157, the Board is given 
authority to determine reasonable royalty fees or resolve issues 
involving the grant of awards. In addition, the Board has authority:
    (a) To hear and make decisions as to compensation under section 173 
of the Act (42 U.S.C. 2223) and the Invention Secrecy Act (35 U.S.C. 
183);
    (b) To hear and make decisions as to whether a specific patent is 
affected with the public interest pursuant to section 153a of the Act;
    (c) To hear and make decisions as to whether a specific patent 
license should be granted under sections 153b(2) and 153e of the Act;
    (d) To give notices, hold hearings and take such other actions as 
may be necessary under section 153; and
    (e) To exercise all powers available under the Act and necessary for 
the performance of these duties, including the issuance of such rules of 
procedure as may be necessary.



Sec. 780.4  Filing and service of documents.

    (a) All communications regarding proceedings subject to this part 
should be addressed to: Chairman, Patent Compensation Board, U.S. 
Department of Energy, Webb Building, Room 1006, 4040 N. Fairfax Drive, 
Arlington, Virginia 22203. All documents offered for filing shall be 
accompanied by proof of service upon all parties to the proceeding or 
their attorneys of record as required by law, rule, or order of the 
Department. Service on the Department shall be by mail, telegram, or 
delivery to: Office of the Assistant General Counsel for Patents, U.S. 
Department of Energy, Washington, DC 20585.
    (b) Filing by mail or telegram will be deemed to be complete as of 
the time

[[Page 447]]

of deposit in the United States mail or with a telegraph company.



Sec. 780.5  Applications--General form, content, and filing.

    (a) Each application shall be signed by the applicant and shall 
state the applicant's name and address. If the applicant is a 
corporation, the application shall be signed by an authorized officer of 
the corporation, and the application shall indicate the state of 
incorporation. Where the applicant elects to be represented by counsel, 
a signed notice to that effect shall be filed with the Board.
    (b) Each application must contain a concise statement of all of the 
essential facts upon which it is based. No particular form of statement 
is required. Each application shall be verified by the applicant or by 
the person having the best knowledge of such facts. In the case of facts 
stated on information and belief, the source of such information and 
grounds of belief shall be given.
    (c) Each application must identify any person whose interest the 
applicant believes may be affected by the proceeding before the Board.
    (d) Three copies of each application shall be filed with the Board. 
However, only one copy of the accompanying exhibits need be filed.
    (e) The Board will acknowledge the receipt of the application in 
writing and advise the applicant of the docket number assigned to the 
application.



Sec. 780.6  Department participation.

    The Department shall be a party to all proceedings under this part, 
and the Office of the General Counsel will represent the Department's 
interests before the Board.



Sec. 780.7  Designation of interested persons as parties.

    In any proceeding under this part, the Board shall admit as a party 
any person, upon application of such person or on the Board's own 
initiative, whose interest may be affected by the proceeding.



Sec. 780.8  Security.

    In any proceeding under this part, the Board shall take such steps 
as necessary pursuant to chapter 12 of the Act and section 181 of the 
Act to assure compliance with Department security regulations and the 
common defense.



Sec. 780.9  Rules of procedure before the Board.

    Except as set forth in this part, all Board proceedings, including 
the hearing and decision, shall be conducted pursuant to the rules of 
practice of the Department of Energy Board of Contract Appeals, 10 CFR 
part 1023, modified as the Board may determine to be necessary and 
appropriate.



Sec. 780.10  Decision of the Board.

    The decision of the Board in any proceeding under this part shall 
constitute the final action of the Department on the matter.



Sec. 780.11  Records of the Board.

    The records of the Board in cases filed before it, including the 
pleadings, the transcript, and the final decision, shall be open to 
public inspection, except to the extent that such records or portions 
thereof are withheld from disclosure by the Board pursuant to 10 CFR 
part 1004.



  Subpart B_Declaring Patents Affected With the Public Interest Under 
              Section 153a of the Atomic Energy Act of 1954



Sec. 780.20  Initiation of proceeding.

    When any person in the Department believes that the Department 
should declare a patent affected with the public interest pursuant to 
section 153a of the Act, that person shall make such a recommendation to 
the Under Secretary. If, after consultation with the General Counsel, 
the Under Secretary agrees with the recommendation, the Under Secretary 
shall initiate in writing a proceeding under section 153a before the 
Board. The communication of the Under Secretary to the Board shall 
identify the patent and state the basis for the proposed declaration.



Sec. 780.21  Notice.

    The Board will serve upon the patent owner and all other parties a 
written notice of the Department's proposed

[[Page 448]]

action to declare the patent affected with the public interest, and the 
notice shall identify the patent and state the basis for the proposed 
declaration.



Sec. 780.22  Opposition, support and request for hearing.

    (a) Any party may, within thirty (30) days after service of the 
notice or such other time as may be provided by the terms of the notice, 
file with the Board a written statement in opposition to or in support 
of the Department's proposed action. Such statement may also include a 
request for hearing. The statement shall contain a concise description 
of the facts, law, or any other relevant matter which the party believes 
should be reviewed by the Board during its consideration of the proposed 
declaration. If the request for a hearing is timely received, the Board 
shall call a hearing and provide notice of the time and place to all 
parties.
    (b) Failure of all parties to oppose the proposed action or to 
request a hearing within the time specified in the notice shall be 
deemed an acquiescence to that action and may result in a declaration by 
the Board that the patent is affected with the public interest.



Sec. 780.23  Hearing and decision.

    If a timely request for a hearing is made by any party, the Board 
will proceed with a hearing and decision. If a hearing is not requested, 
the Board shall prepare and issue its decision on the record.



Sec. 780.24  Criteria for declaring a patent affected with the public interest.

    A patent shall be declared to be affected with the public interest 
pursuant to section 153a of the Act upon the Board's final decision 
that:
    (a) The invention or discovery covered by the patent is of primary 
importance in the production or utilization of special nuclear material 
or atomic energy; and
    (b) The licensing of such invention or discovery under section 153 
of the Act is of primary importance to effectuate the policies and 
purposes of the Act.



 Subpart C_Application for a License Pursuant to Section 153b(2) of the 
                        Atomic Energy Act of 1954



Sec. 780.30  Filing of application.

    An applicant for a license pursuant to section 153b(2) of the Act, 
under a patent which the Department has declared to be affected with the 
public interest, shall file an application with the Board in accordance 
with Sec. 780.5. The Board will docket the application and serve notice 
of the docketing upon all parties.



Sec. 780.31  Contents of application.

    Each application shall contain, in addition to the requirements 
specified in Sec. 780.5, the following information:
    (a) The activities in the production or utilization of special 
nuclear material or atomic energy to which applicant proposes to apply 
the patent license;
    (b) The nature and purpose of the applicant's intended use of the 
patent license;
    (c) The relationship of the invention or discovery to the authorized 
activities to which it is to be applied, including an estimate of the 
effect on such activities stemming from the grant or denial of the 
license;
    (d) Efforts made by the applicant to obtain a patent license from 
the owner of the patent;
    (e) Terms, if any, on which the owner of the patent proposes to 
grant the applicant a patent license;
    (f) The terms the applicant proposes for the patent license; and
    (g) A request for either a hearing or a decision on the record.



Sec. 780.32  Response and request for hearing.

    Any party within thirty (30) days after service of the notice of 
docketing of the application:
    (a) May file with the Board a response containing a concise 
statement of the facts or law or any other relevant information which 
that party believes should be considered by the Board in opposition to 
or in support of the proposed application; and
    (b) May file a request for a hearing or for a decision on the 
record.

[[Page 449]]



Sec. 780.33  Hearing and decision.

    If any party requests a hearing, the Board will proceed with a 
hearing and decision. If a hearing is not requested, the Board shall on 
the basis of the record prepare and issue its decision.



Sec. 780.34  Criteria for decision to issue a license.

    A license shall issue to the applicant to use the invention covered 
by the patent declared to be affected with the public interest pursuant 
to subsection 153b(2) of the Act upon a final decision that:
    (a) The activities to which the patent license is proposed to be 
applied are of primary importance to the applicant's conduct of an 
activity authorized under the Act; and
    (b) The applicant has made efforts to obtain reasonable commercial 
terms and conditions and such efforts have not been successful within a 
reasonable period of time. The requirement to make such efforts may be 
waived by the Board in the case of a national emergency or other 
circumstances of extreme urgency or in cases of public non-commercial 
use. Where this requirement is waived due to national emergency or other 
circumstances of extreme urgency, the owner of the patent shall be 
notified as soon as reasonably practicable. Where this requirement is 
waived for a public non-commercial use, the owner of the patent shall be 
notified promptly.

[46 FR 39581, Aug. 4, 1981, as amended at 58 FR 68734, Dec. 29, 1993]



Sec. 780.35  Communication of decision to General Counsel.

    Following a determination to issue a patent license under section 
153b(2) of the Act, the Board shall send the decision to the General 
Counsel and instruct the General Counsel to issue the license on terms 
deemed equitable by the Department and generally not less fair than 
those granted by the patentee or by the Department to similar licensees 
for comparable use.



Sec. 780.36  Conditions and issuance of license.

    (a) Upon receipt of the Board's decision and instruction to issue a 
patent license, the General Counsel shall issue a license which complies 
with the following:
    (1) The scope and durations of such use shall be limited to the 
purpose for which it was authorized;
    (2) Such use shall be non-exclusive;
    (3) Such use shall be non-assignable, except with that part of the 
enterprise or goodwill that enjoys such use;
    (4) Any such use shall be authorized predominantly for the supply of 
the U.S. market; and,
    (5) Authorization for such use shall be liable, subject to adequate 
protection of the legitimate interests of the persons so authorized, to 
be terminated if and when the circumstances that led to it cease to 
exist and are unlikely to recur.
    (b) The Board shall have the authority to review, on motivated 
request, the continued existence of these circumstances. The parties 
will propose and agree on a reasonable royalty fee within a reasonable 
time as determined by the General Counsel. A reasonable royalty shall 
provide adequate remuneration for the circumstances of each case, taking 
into account the economic value of the authorization. If a party does 
not agree with the terms and conditions of the license as determined by 
the General Counsel or if a royalty fee cannot be agreed upon within the 
reasonable time period established by the General Counsel, any party 
may, within 30 days after the expiration of such time period, initiate a 
proceeding before the Board, in accordance with subpart E of this part, 
for a reconsideration of the General Counsel's determination. After the 
proceeding under subpart E of this part is completed, the General 
Counsel shall modify the patent license in accordance with the Board's 
determination.

[58 FR 68734, Dec. 29, 1993]



  Subpart D_Application for a License Pursuant to Section 153c of the 
                        Atomic Energy Act of 1954



Sec. 780.40  Filing of application.

    An application to the Department, pursuant to section 153c of the 
Act, for

[[Page 450]]

the issuance of a license to use the invention or discovery covered by a 
patent useful in the production or utilization of special nuclear 
material or atomic energy shall be filed with the Board in accordance 
with requirements of Sec. 780.5.



Sec. 780.41  Contents of application.

    In addition to the information specified in Sec. 780.5, each 
application shall contain the following:
    (a) The applicant's contention, with supporting data, that the 
invention or discovery covered by the patent is of primary importance in 
the production or utilization of special nuclear material or atomic 
energy;
    (b) The applicant's contention, with supporting data, that the 
licensing of such invention or discovery is of primary importance to the 
conduct of the activities of the applicant, including information 
concerning:
    (1) The activities in the production or utilization of special 
nuclear material or atomic energy to which applicant proposes to apply 
the license;
    (2) The nature and purpose of the applicant's intended use of the 
patent license; and
    (3) The relationship of the invention or discovery to the activities 
to which it is to be applied, including an estimate of the effect of 
such activities stemming from the grant or denial of the license.
    (c) The applicant's contention, with supporting data, that the 
activities to which the patent license are proposed to be applied are of 
primary importance to the furtherance of policies and purposes of the 
Act;
    (d) The applicant's contention, with supporting data, that such 
applicant cannot otherwise obtain a patent license from the owner of the 
patent on terms which are reasonable for the applicant's intended use of 
the patent, including information concerning:
    (1) Efforts made by applicant to obtain a patent license from the 
owner of the patent; and
    (2) Terms, if any, on which the owner of the patent proposed to 
grant applicant a patent license.
    (e) The terms the applicant proposes as reasonable for the patent 
license; and
    (f) A copy of any license, permit, or lease obtained by the 
applicant under the procedures outlined in section 153(c) of the Act.



Sec. 780.42  Notice of hearing.

    Within thirty (30) days after the filing of the application, the 
Board will serve on all parties a notice of hearing to be held not later 
than sixty (60) days after the filing of the application.



Sec. 780.43  Response.

    Any party may file a response with the Board containing a concise 
statement of the facts or law or any other relevant information in 
opposition to or in support of the application which that party believes 
should be considered by the Board. Such response must be filed by a 
party within twenty (20) days after being served a copy of the 
application.



Sec. 780.44  Hearing and decision.

    In accordance with section 153d of the Act, the Board shall hold a 
hearing and issue a final decision on the application.



Sec. 780.45  Criteria for decision to issue a license.

    A license shall issue to the applicant to use the invention covered 
by the patent for the purposes stated in the application upon a final 
decision that:
    (a) The invention or discovery covered by the patent is of primary 
importance in the production or utilization of special nuclear material 
or atomic energy;
    (b) The licensing of such invention or discovery is of primary 
importance to the conduct of the activities of the applicant;
    (c) The activities to which the patent license is proposed to be 
applied by such applicant are of primary importance to the furtherance 
of policies and purposes of the Act; and
    (d) The applicant has made efforts to obtain reasonable commercial 
terms and conditions and such efforts have not been successful within a 
reasonable period of time. The requirement to make such efforts may be 
waived by the Board in the case of a national emergency or other 
circumstances of extreme urgency or in cases of public

[[Page 451]]

non-commercial use. Where this requirement is waived due to national 
emergency or other circumstances of extreme urgency, the owner of the 
patent shall be notified as soon as reasonably practicable. Where this 
requirement is waived for a public non-commercial use, the owner of the 
patent shall be notified promptly.

[46 FR 39581, Aug. 4, 1981, as amended at 58 FR 68734, Dec. 29, 1993]



Sec. 780.46  Communication of decision to General Counsel.

    When the Board decides to issue a patent license under section 153c 
of the Act, the Board shall send the decision to the General Counsel and 
instruct the General Counsel to issue the license on terms deemed 
equitable by the Department and generally not less fair than those 
granted by the patentee or by the Department to similar licensees for 
comparable use.



Sec. 780.47  Conditions and issuance of license.

    (a) Upon receipt of the Board's decision and instruction to issue a 
patent license, the General Counsel shall issue a license which complies 
with the following:
    (1) The scope and durations of such use shall be limited to the 
purpose for which it was authorized;
    (2) Such use shall be non-exclusive;
    (3) Such use shall be non-assignable, except with that part of the 
enterprise or goodwill that enjoys such use;
    (4) Any such use shall be authorized predominantly for the supply of 
the U.S. market; and,
    (5) Authorization for such use shall be liable, subject to adequate 
protection of the legitimate interests of the persons so authorized, to 
be terminated if and when the circumstances that led to it cease to 
exist and are unlikely to recur.
    (b) The Board shall have the authority to review, on motivated 
request, the continued existence of these circumstances. The parties 
will propose and agree on a reasonable royalty fee within a reasonable 
time as determined by the General Counsel. A reasonable royalty shall 
provide adequate remuneration for the circumstances of each case, taking 
into account the economic value of the authorization. If a party does 
not agree with the terms and conditions of the license as determined by 
the General Counsel or if a royalty fee cannot be agreed upon within the 
reasonable time period established by the General Counsel, any party 
may, within 30 days after the expiration of such time period, initiate a 
proceeding before the Board, in accordance with subpart E of this part, 
for a reconsideration of the General Counsel's determination. After the 
proceeding under subpart E of this part is completed, the General 
Counsel shall modify the patent license in accordance with the Board's 
determination.

[46 FR 39581, Aug. 4, 1981, as amended at 58 FR 68734, Dec. 29, 1993]



Subpart E_Application for Royalties and Awards Under Section 157 of the 
  Atomic Energy Act of 1954 and Compensation Under Section 173 of the 
 Atomic Energy Act of 1954 and the Invention Secrecy Act (35 U.S.C. 183)



Sec. 780.50  Applicants.

    (a) Any owner or licensee of a patent licensed under section 158 or 
subsections b or e of section 153 of the Act may file an application 
with the Board for the determination of a reasonable royalty fee.
    (b) Any owner or licensee of a patent licensed under subsections b 
or e of section 153 of the Act may file an application with the Board 
for the modification of any terms and conditions of the license.
    (c) Any person who has made an invention or discovery useful in the 
production or utilization of special nuclear material or atomic energy, 
has complied with the provisions of section 151c, but, under the Act, is 
not entitled to a royalty for such invention or discovery, may file an 
application for an award.
    (d) Any owner of a patent application that contains restricted data 
not belonging to the United States which the Department has communicated 
to any foreign nation may make application for just compensation 
pursuant to section 173 of the Act.

[[Page 452]]

    (e) Any patent applicant, whose patent is withheld because of a 
secrecy order issued at the request of the Department may, beginning at 
the date the patent applicant is notified that, except for such order, 
the application is otherwise in condition for allowance, apply for 
compensation for the damage caused by the secrecy order and/or for the 
use of the invention by the Government, resulting from any disclosure to 
the Department required by the Invention Secrecy Act.



Sec. 780.51  Form and content.

    (a) Each application shall contain a statement of the applicant's 
interest in the patent, patent application, invention or discovery and 
identify any other claimants of whom the applicant has knowledge.
    (b) Each application must contain a concise statement of all of the 
essential facts upon which it is based. No particular form of statement 
is required, but it will facilitate consideration of the application if 
the following specific data accompany the application:
    (1) In the case of an issued patent, a copy of the patent.
    (2) In the case of a patent application, a copy of the application 
and of all Patent and Trademark Office actions and responses thereto.
    (3) In the case of an invention or discovery as to which a report 
has been filed with the Department pursuant to subsection c of section 
151 of the Act, a copy of such report.
    (4) In the case of an award, the date relied upon as the date of 
invention.
    (5) In all cases, a statement of the extent to which the invention 
or discovery was developed through federally financed research or with 
other Federal support.
    (6) In all cases, the degree of the utility, novelty, and importance 
of the invention or discovery.
    (7) In all cases, a statement of the actual use by the Federal 
Government or others of such invention or discovery, to the extent known 
to the applicant.
    (8) In all cases, the cost of developing the invention or discovery 
and acquiring the patent or patent application.
    (9) The royalty fee proposed, the proposed terms and conditions of a 
license agreement, or the amount sought as compensation or award, as 
well as the basis used in calculating such fee, compensation or award 
and whether a lump sum or periodic payments are sought.
    (10) In an application for just compensation pursuant to section 173 
of the Act, the ownership of the invention that is the subject matter of 
the patent application at the time the Department communicated the 
restricted data shall be set forth, and any restricted data contained in 
the application shall be specifically identified.
    (11) In an application for compensation under the authority provided 
in the Invention Secrecy Act (35 U.S.C. 183), for the damage caused by 
imposition of a secrecy order on a patent application and/or for the use 
of the invention by the Government, the date of the secrecy order, the 
date of the notice that the patent application is in condition for 
allowance, and, if known to the applicant, the date of the first use of 
the invention by the Government.



Sec. 780.52  Notice and hearing.

    The Board shall, in its discretion, afford the applicable party an 
opportunity for a hearing for the presentation of relevant evidence. 
Thirty (30) days notice shall be given of the time and place of such 
hearing. After expiration of the notice period, the Board shall proceed 
with a hearing and render its decision.



Sec. 780.53  Criteria for decisions for royalties, awards and compensation.

    (a) In deciding a reasonable royalty fee for a patent licensed under 
section 158 or sections 153b or 153e of the Act, the Board shall 
consider:
    (1) The economic value of the compulsory license and the Board shall 
strive to provide adequate remuneration for the circumstances of each 
case.
    (2) Any defense, general or special, that a defendant could plead in 
an action for infringement;
    (3) The extent to which such patent was developed through federally 
financed research or with other Federal support;
    (4) The degree of utility, novelty, and importance of the invention 
or discovery; and

[[Page 453]]

    (5) The cost to the owner of the patent of developing such invention 
or discovery or of acquiring such patent.
    (b) In deciding whether or not to grant an award, under section 157 
of the Act, for the making of an invention or discovery useful in the 
production or utilization of special nuclear material or atomic energy, 
the Board shall take into account the considerations set forth in Sec. 
780.53(a) of this part and the actual use of such invention or 
discovery.
    (c) In deciding whether or not to provide compensation, pursuant to 
section 173 of the Act, to a person who owns a patent application that 
contains restricted data not belonging to the United States which the 
Department has communicated to a foreign nation, the Board shall take 
into account the considerations set forth in Sec. 780.53(b) of this 
part and the damage to the applicant resulting from such communication.
    (d) In the course of its review of an application to provide 
compensation, pursuant to 35 U.S.C. 183, to an applicant whose patent 
was withheld because of a secrecy order issued at the request of the 
Department, the Board shall take into account the considerations set 
forth in Sec. 780.53(b) of this part and:
    (1) The damage sustained by the applicant as a result of the secrecy 
order; and
    (2) The use of the invention by the Government resulting from the 
disclosure of such invention to the Department.

[46 FR 39581, Aug. 4, 1981, as amended at 58 FR 68735, Dec. 29, 1993]



PART 781_DOE PATENT LICENSING REGULATIONS--Table of Contents



                           General Provisions

Sec.
781.1 Scope.
781.2 Policy.
781.3 Definitions.
781.4 Communications.

             Types of Licenses and Conditions for Licensing

781.51 Nonexclusive licenses.
781.52 Exclusive and partially exclusive licenses.
781.53 Additional licenses.

                               Procedures

781.61 Publication of DOE inventions available for license.
781.62 Contents of a license application.
781.63 Published notices.
781.64 Termination.
781.65 Appeals.
781.66 Third-party termination proceedings.

                           Special Provisions

781.71 Litigation.
781.81 Transfer of custody.

    Authority: Dept. of Energy Organization Act, sec. 301, Pub. L. 95-91 
(42 U.S.C. 7301); Federal Nonnuclear Energy Research and Development Act 
of 1974, sec. 9(g), Pub. L. 93-577 (42 U.S.C. 5908(g)); Atomic Energy 
Act of 1954, as amended, secs. 156, 161g, Pub. L. 83-703 (42 U.S.C. 
2186, 2201g); Presidential Statement, 36 FR 16887, Aug. 26, 1971.

    Source: 45 FR 73447, Nov. 4, 1980, unless otherwise noted.

                           General Provisions



Sec. 781.1  Scope.

    The regulations of this part establish the procedures, terms, and 
conditions upon which licenses may be granted in inventions covered by 
patents or patent applications, both domestic and foreign, vested in the 
United States of America, as represented by or in the custody of the 
Department of Energy.



Sec. 781.2  Policy.

    (a) The inventions covered by the patents and patent applications, 
both foreign and domestic, vested in the Government of the United States 
of America, as represented by or in the custody of the Department, 
normally will best serve the public interest when they are developed to 
the point of practical or commercial application and made available to 
the public in the shortest possible time. This may be accomplished by 
the granting of express nonexclusive, exclusive, or partially exclusive 
licenses for the practice of these inventions. However, it is recognized 
that there may be inventions as to which the Department deems dedication 
to the public by publication the preferable method of accomplishing 
these objectives.
    (b) Although DOE encourages the nonexclusive licensing of its 
inventions to promote competition and to achieve

[[Page 454]]

their widest possible utilization, the commercial development of certain 
inventions may require a substantial capital investment that private 
manufacturers may be unwilling to risk under a nonexclusive license. 
Thus, DOE may grant exclusive or partially exclusive licenses where the 
granting of such exclusive or partially exclusive licenses is consistent 
with Sec. 781.52.
    (c) Decisions as to grants or denials of any license application 
will, in the discretion of the Secretary, be based on the Department's 
view of what is in the best interests of the United States and the 
general public under the provisions of these regulations. Decisions of 
the Department under these regulations may be made on the Secretary's 
behalf by the General Counsel or the General Counsel's delegate, except 
where otherwise delegated to the Invention Licensing Appeal Board. When 
the Department determines that it is appropriate to grant a license, the 
license will be negotiated on terms and conditions most favorable to the 
interests of the United States and the general public.
    (d) No license shall be granted or implied under a DOE invention 
except as provided for in these regulations, in patent rights articles 
under Department procurement regulations (41 CFR part 9-9), in 
agreements between DOE and other Government bodies, or in any existing 
or future treaty or agreement between the United States and any foreign 
government or intergovernmental organization.
    (e) No grant of a license under this part shall be construed to 
confer upon any licensee any immunity from the antitrust laws or from 
liability for patent misuse, and the acquisition and use of rights 
pursuant to this part shall not be immunized from the operation of State 
or Federal law by reason of the source of the grant.



Sec. 781.3  Definitions.

    (a) Board means the Invention Licensing Appeal Board.
    (b) Department of Energy, Department, or DOE mean the Department of 
Energy, established by the Department of Energy Organization Act (Pub. 
L. 95-91; 42 U.S.C. 7101).
    (c) DOE invention means an invention covered by a U.S. or foreign 
patent or patent application that is vested in the Government of the 
United States, as represented by or in the custody of the Department or 
any of its predecessors, and which is designated by the Department as 
appropriate for the grant of an express nonexclusive, exclusive, or 
partially exclusive license.
    (d) Exclusive license means a license in which the licensee has the 
exclusive right under the patent for a part or the full term of the 
patent, subject only to the retention by the U.S. Government of a 
license and rights in the invention, as specified herein.
    (e) Partially exclusive license means (1) an exclusive license where 
the exclusive right granted is limited to making or using or selling the 
invention, or is limited to specified fields of use or use in specified 
geographic locations; or (2) a license where the number of licenses 
under the particular invention is limited.
    (f) Person means any individual, partnership, corporation, 
association, or institution, or other entity.
    (g) Predecessor means the Energy Research and Development 
Administration, the Atomic Energy Commission, and any of the Government 
entities or parts thereof whose functions were transferred to the 
Department of Energy pursuant to title III of the Department of Energy 
Organization Act.
    (h) Responsible applicant means an applicant who, in the discretion 
of the Department, has the intention, plans, and ability expeditiously 
to bring the invention to the point of practical or commercial 
application.
    (i) Secretary means the Secretary of Energy or the delegate of the 
Secretary of Energy.
    (j) To the point of practical or commercial application means to 
manufacture in the case of composition or product, to practice in the 
case of a process, or to operate in the case of a machine, under such 
conditions as to establish that the invention is being worked and that 
its benefits are reasonably accessible to the public.
    (k) United States and the general public means the United States 
Government, United States citizens, and United States organizations.

[[Page 455]]

    (l) United States Organization means any partnership, corporation, 
association, or institution where 75 percent or more of the voting 
interest is owned by United States citizens.



Sec. 781.4  Communications.

    All communications concerning the regulations in this part, 
including applications for licenses, should be addressed or delivered to 
the General Counsel, Attention: Assistant General Counsel for Patents, 
U.S. Department of Energy, Washington, DC 20545.

             Types of Licenses and Conditions for Licensing



Sec. 781.51  Nonexclusive licenses.

    (a) Availability of licenses. Except as provided in Sec. 781.52, 
DOE inventions will be made available for the grant of nonexclusive, 
revocable licenses to responsible applicants. However, when in the best 
interests of the United States and the general public, licenses may be 
restricted to manufacture in the United States. Factors which the 
Department will consider in so restricting a license include, but are 
not limited to, the following:
    (1) The nature of the invention;
    (2) The effect of the license upon the policies of the United States 
Government;
    (3) The effect of the license upon domestic and international 
commerce and competition;
    (4) The effect of the license upon the balance of payments of the 
United States; and
    (5) The effect of the license upon the overall posture of the United 
States in world markets.
    (b) Terms of grant. Nonexclusive licenses shall contain such terms 
and conditions as the Department may determine appropriate for the 
protection of the interests of the United States and the general public, 
including but not limited to the following:
    (1) The duration of the license will be negotiated and may be 
extended upon application therefor, provided the licensee complies with 
all the terms of the license and shows that substantial utilization has 
been, or within a reasonable time will be, achieved.
    (2) The license shall require the licensee to bring the invention to 
the point of practical or commercial application in the geographic area 
of the license, within a period of time specified in the license or such 
period as may be extended by the Department, upon request in writing to 
the General Counsel, for good cause shown. The license shall further 
require the licensee to continue to make the benefits of the invention 
reasonable accessible in the geographic area of the license.
    (3) The license may be granted for all or less than all fields of 
use of the invention and in any one or all of the countries, or any 
lesser geographic area thereof, in which the invention is covered by a 
patent or a patent application.
    (4) Reasonable royalties may be charged for nonexclusive licenses on 
DOE inventions. Factors to be considered in determining whether to 
charge royalties, or the amount thereof, include but are not limited to, 
the following:
    (i) The nature of the invention;
    (ii) Applicant's status as a small business, minority business, or 
business in an economically depressed, low-income or labor surplus area;
    (iii) The extent of U.S. Government contribution to the development 
of the invention;
    (iv) The degree of development of the invention;
    (v) The extent of effort necessary for the licensee to bring the 
invention to the point of practical or commercial application;
    (vi) The extent of effort necessary to create or penetrate the 
market for the invention;
    (vii) Whether the licensee is a U.S. citizen or U.S. organization; 
and
    (viii) Whether the invention is to be licensed in the U.S. or in a 
foreign country.
    (5) In the jurisdiction of the license, the license may extend to 
the licensee's subsidiaries and to affiliates within the corporate 
structure of which licensee is a part, if any. However, the license 
shall not be assignable or include the right to grant sublicenses 
without the approval of the Department in writing.

[[Page 456]]

    (6) The licensee shall be required to submit written reports 
annually, and when specifically requested by the Department, on its 
efforts to bring the invention to a point of practical or commercial 
application and the extent to which the licensee continues to make the 
benefits of the invention reasonably accessible to the public. The 
reports shall contain information within the licensee's knowledge, or 
which the licensee may acquire under normal business practices, 
pertaining to the commercial use being made of the invention.
    (7) The Department may restrict the license to the fields of use or 
geographic areas in which the licensee has brought the invention to the 
point of practical or commercial application and continues to make the 
benefits of the invention reasonably accessible to the public.

(The information collection requirements contained in paragraph (b)(6) 
were approved by the Office of Management and Budget under control 
number 1902-0232)

[45 FR 73447, Nov. 4, 1980, as amended at 46 FR 63209, Dec. 31, 1981]



Sec. 781.52  Exclusive and partially exclusive licenses.

    (a) Availability of licenses. The Department may grant exclusive or 
partially exclusive licenses in any invention only if:
    (1) The invention has been published as available for licensing 
pursuant to Sec. 781.61 for a period of at least six (6) months;
    (2) It does not appear that the desired practical or commercial 
application has been or will be achieved on a nonexclusive basis, and 
that exclusive or partially exclusive licensing is a reasonable and 
necessary incentive to call forth the risk capital and expenses 
necessary to bring the invention to the point of practical or commercial 
application;
    (3) A sixty (60) day notice of a proposed exclusive or partially 
exclusive licensee has been provided, pursuant to Sec. 781.63(a), 
advising of an opportunity for a hearing; and
    (4) After termination of the sixty (60) day notice period, the 
Secretary has determined that:
    (i) The interests of the United States and the general public will 
best be served by the proposed license, in view of the license 
applicant's intention, plans, and ability to bring the invention to the 
point of practical or commercial application;
    (ii) The desired practical or commercial application has not been 
achieved, or is not likely expeditiously to be achieved, under any 
nonexclusive license which has been granted, or which may be granted, on 
the invention;
    (iii) Exclusive or partially exclusive licensing is a reasonable and 
necessary incentive to call forth the risk capital and expenses 
necessary to bring the invention to the point of practical or commercial 
application; and
    (iv) The proposed terms and scope of exclusivity are not 
substantially greater than necessary to provide the incentive for 
bringing the invention to the point of practical or commercial 
application and to permit the licensee to recoup its costs and a 
reasonable profit thereon;
    (5) Any determination pursuant to paragraph (a)(4) of this section 
regarding the practical or commercial application of an invention may be 
limited to the making, using or selling of an invention, a specific 
field of use, or a geographic location, provided that the grant of such 
license will not tend substantially to lessen competition or result in 
undue concentration in any section of the United States in any line of 
commerce to which the technology to be licensed relates.
    (b) Limited number of partially exclusive licenses. In appropriate 
circumstances, and only after compliance with the requirements of 
paragraph (a) of this section, the Department may offer a limited number 
of partially exclusive licenses under a particular invention, when 
limitation of the number of licenses is found to be in the public 
interest and consistent with the purpose of these regulations. Factors 
to be considered in a determination to offer a limited number of 
licenses under a particular invention include, but are not limited to, 
the following: (1) The nature of the invention; (2) the projected market 
size; (3) the need for limitation of licenses to attract risk capital; 
and (4) the need for limitation of

[[Page 457]]

licenses to achieve expeditious commercialization of the invention. When 
such a determination is made, a Notice of Intent to limit the number of 
licenses shall be published in the Federal Register, identifying the 
invention and advising that the Department will entertain no further 
applications for license under the subject invention unless, within 60 
days of the publication of the notice, the General Counsel receives, in 
writing, responses in accordance with Sec. 781.63.
    (c) Selection of exclusive licensee or partially exclusive licensee 
among multiple applicants. When a determination is made by the 
Department that grant of an exclusive license or partially exclusive 
license under a particular invention is a reasonable and necessary 
incentive, in accordance with paragraphs (a) and (b) of this section, to 
call forth the risk capital and expenses required to bring the invention 
to the point of practical or commercial application, and there is more 
than one applicant in a particular jurisdiction seeking an exclusive 
license, and no applicant will accept either a nonexclusive or a 
partially exclusive license, the Department shall make a written 
determination selecting an exclusive licensee. Similarly, when a 
determination is made to grant a limited number of partially exclusive 
licenses under a particular invention and there are more applicants for 
such licenses than acceptable, the Department shall make a written 
determination selecting a limited number of partially exclusive 
licenses. Factors to be considered in making these determinations 
include, but are not limited to, the following:
    (1) The relative intentions, plans, and abilities of the applicants 
to further the technical and market development of the invention and to 
bring the invention to the point of practical or commercial application;
    (2) The projected impact on competition in the U.S.;
    (3) Projected market size;
    (4) The benefit to the U.S. Government, U.S. organizations, and the 
U.S. public;
    (5) Assistance to small business and minority business enterprises 
and economically depressed, low-income, and labor-surplus areas; and
    (6) Whether the applicant is a U.S. citizen or U.S. organization.
    (d) Terms of grant. Exclusive or partially exclusive licenses shall 
contain such terms and conditions as the Secretary may determine to be 
appropriate for the protection of the interests of the United States and 
the general public, including but not limited to the following:
    (1) The duration of the license will be negotiated, and the terms 
and scope of exclusivity shall not be substantially greater than 
necessary to provide the incentive for bringing the invention to the 
point of practical or commercial application and to permit the licensee 
to recoup its costs and a reasonable profit thereon. Extensions are 
permissible only through reapplication for an exclusive or partially 
exclusive license under procedures established in these regulations. The 
license shall be subject to any compulsory license provision required by 
law in a particular jurisdiction.
    (2) The license shall require the licensee to bring the invention to 
the point of practical or commercial application in the geographic area 
of the license, within a period of time specified in the license or such 
period as may be extended by the Department, upon request in writing to 
the General Counsel, for good cause shown. The license shall further 
require the licensee to continue to make the benefits of the invention 
reasonably accessible in the geographic area of the license. In 
specifying the period for bringing the invention to the point of 
practical or commercial application, the license shall specify the 
minimum sum to be expended by the licensee and/or other specific actions 
to be taken by it within the time periods indicated in the license.
    (3) The license may be granted for all or less than all fields of 
use of the invention and in any one or all of the countries, or any 
lesser geographic area thereof, in which the invention is covered by a 
patent or a patent application.
    (4) Reasonable royalties shall be charged by the Department unless 
the Department determines that charging

[[Page 458]]

of royalties would not be in the best interests of the United States and 
the general public.
    (5) In the jurisdiction of the license, the license may extend to 
the licensee's subsidiaries and to affiliates within the corporate 
structure of which the licensee is a part, if any. However, the license 
shall not be assignable or include the right to grant sublicenses 
without the approval of the Department in writing.
    (6) The licensee shall be required to submit written reports 
annually, and when specifically requested by the Department, on its 
efforts to bring the invention to the point of practical or commercial 
application and the extent to which the licensee continues to make the 
benefits of the invention reasonably accessible to the public. The 
reports shall contain information within the licensee's knowledge, or 
which the licensee may acquire under normal business practices, 
pertaining to the commercial use being made of the invention.
    (7) The license shall reserve at least an irrevocable, nonexclusive, 
paid-up license to make, use and sell the invention throughout the world 
by or on behalf of the United States (including any Government agency), 
the States, and domestic municipal governments, unless the Secretary 
determines that it would not be in the public interest to reserve such a 
license for the States and domestic municipal governments.
    (8) The license shall reserve in the United States the right to 
sublicense the licensed invention to any foreign government pursuant to 
any existing or future treaty or agreement, if the Secretary determines 
it would be in the national interest to acquire this right.
    (9) The license shall reserve in the Secretary the right to require 
the granting of a nonexclusive or partially exclusive sublicense to a 
responsible applicant or applicants, upon terms reasonable under the 
circumstances, (i) to the extent that the invention is required for 
public use by governmental regulations, (ii) as may be necessary to 
fulfill health, safety, or energy needs, or (iii) for such other 
purposes as may be stipulated in the license.
    (10) The license shall reserve in the Secretary the right to 
terminate such license, in whole or in part, subject to the notice and 
appeal provisions of Sec. Sec. 781.64 and 781.65, unless the licensee 
demonstrates to the satisfaction of the Secretary that he has taken 
effective steps, or within a reasonable time thereafter is expected to 
take such steps, necessary to accomplish substantial utilization of the 
invention.
    (11) The license shall reserve in the Secretary the right, 
commencing three years after the grant of the license, to terminate the 
license, in whole or in part, subject to the provisions of Sec. 781.66 
and following a publicly-noticed hearing, initiated pursuant to a 
petition by an interested person justifying such hearing--
    (i) If the Secretary determines, upon review of such material as he 
deems relevant and after the licensee or other interested person has had 
the opportunity to provide such relevant and material information as the 
Secretary may require, that such license has tended substantially to 
lessen competition or to result in undue concentration in any section of 
the United States in any line of commerce to which the technology 
relates; or
    (ii) If the licensee fails to demonstrate to the satisfaction of the 
Secretary at such hearing that he has taken effective steps, or within a 
reasonable time thereafter is expected to take such steps, necessary to 
accomplish substantial utilization of the invention.



Sec. 781.53  Additional licenses.

    Subject to any outstanding licenses, nothing in this part shall 
preclude the Department from granting additional nonexclusive, or 
exclusive, or partially exclusive licenses for inventions covered by 
this part when the Department determines that to do so would provide for 
an equitable exchange of patent rights. The following circumstances are 
examples in which such licenses may be granted:
    (a) In consideration of the settlement of interferences;
    (b) In consideration of a release of any claims;

[[Page 459]]

    (c) In exchange for or as a part of the consideration for a license 
under adversely held patents; or
    (d) In consideration for the settlement or resolution of any 
proceeding under the Department of Energy Organization Act or other law.

                               Procedures



Sec. 781.61  Publication of DOE inventions available for license.

    (a) The Department will publish periodically in the Federal Register 
a list of the DOE inventions available for licensing under this part. In 
addition, a list of those DOE inventions that are protected in the 
United States will be published in the U.S. Patent and Trademark Office 
Official Gazette and in the National Technical Information Service 
(NTIS) publication ``Government Inventions for Licensing.''
    (b) Interested persons may obtain copies of such lists by contacting 
the General Counsel, Attention: Assistant General Counsel for Patents, 
U.S. Department of Energy, Washington, DC 20545. Copies of U.S. patents 
may be obtained from the U.S. Patent and Trademark Office, Washington, 
DC 20231. Copies of U.S. patent applications, specifications, or 
microfiche reproductions thereof may be secured at reasonable cost from 
the National Technical Information Service (NTIS), Springfield, Virginia 
22151.



Sec. 781.62  Contents of a license application.

    An application for a license under a DOE invention must be 
accompanied by a processing fee of $25 for each patent or patent 
application under which a license is desired, which shall be credited 
towards royalty if royalties are charged, and must include the following 
information:
    (a) Identification of the invention for which the license is 
desired, including the title of the invention and the patent application 
serial number or the patent number of the invention;
    (b) Name and address of the person applying for a license and 
whether the applicant is a U.S. citizen or U.S. organization;
    (c) Name and address of a representative of the applicant to whom 
correspondence should be sent and any notices served;
    (d) Nature and type of the applicant's business;
    (e) Applicant's status, if any, as a small business firm, minority 
business firm, or business firm located in a labor surplus area, low-
income area, or economically depressed area.
    (f) Identification of the source of the applicant's information 
concerning the availability of a license on the invention;
    (g) A statement of the field or fields of use in which the applicant 
intends to practice the invention;
    (h) A statement of the geographic area or areas in which the 
applicant proposes to practice the invention, including a statement of 
any foreign countries in which the applicant proposes to practice the 
invention;
    (i) A description of the applicant's technical and financial 
capability and plan for bringing the invention to a point of practical 
or commercial application, and the applicant's offer to implement that 
plan, if the license is granted.
    (j) The amount of royalty fees or other consideration, if any, that 
the applicant would be willing to pay the Government for the license;
    (k) Applicant's knowledge of the extent to which the invention is 
being practiced by private industry and the Government; and
    (l) In the case of an exclusive or partially exclusive license 
application, any facts which the applicant believes will show that it is 
in the public interest for the Department to grant such a license rather 
than a nonexclusive license and that such exclusive or partially 
exclusive license should be granted to the applicant.

(Approved by the Office of Management and Budget under control number 
1901-0232)

[45 FR 73447, Nov. 4, 1980, as amended at 46 FR 63209, Dec. 31, 1981]



Sec. 781.63  Published notices.

    (a) A notice of a proposed exclusive license or partially exclusive 
licenses shall be published in the Federal Register, and a copy of the 
notice shall be sent to the Attorney General. The notice shall include:
    (1) Identification of the invention;

[[Page 460]]

    (2) Identification of the proposed exclusive licensee or partially 
exclusive licensees;
    (3) Duration and scope of the proposed license;
    (4) A statement that the license will be granted unless:
    (i) An application for a nonexclusive license, submitted by a 
responsible applicant pursuant to Sec. 781.62, is received by the 
Department within sixty (60) days from the publication of the notice in 
the Federal Register, and the Department determines that the applicant 
has established that it has already achieved, or is likely expeditiously 
to achieve, practical or commercial application under a nonexclusive 
license; or
    (ii) The Department determines, based upon evidence and argument 
submitted in writing by a third party, that it would not be in the 
interest of the United States and the general public to grant the 
exclusive or partially exclusive licenses; and
    (5) A statement advising that applicants or third parties 
participating in response to the Federal Register notice shall have the 
right to appeal any adverse decision, including the right to request an 
oral hearing, in accordance with Sec. 781.65.
    (b) In situations where the Department intends to limit the number 
of partially exclusive licenses under a particular invention pursuant to 
Sec. 781.52(b), the notice in paragraph (a) of this section will be 
modified to reflect that intent and to invite applicants to apply for 
such partially exclusive licenses by a date specified in the notice.
    (c) If an exclusive or partially exclusive license has been granted 
or, in whole or in part, terminated pursuant to this regulation, notice 
thereof shall be published in the Federal Register. Such notice shall 
include:
    (1) Identification of the invention;
    (2) Identification of the licensee; and
    (3) If a license grant, the duration and scope of the license; or
    (4) If a termination in whole or in part, the effective date of the 
termination and whether it is in whole or in part.



Sec. 781.64  Termination.

    (a) The Department may terminate, in whole or in part, a license:
    (1) For failure, within the time specified in the license, to take 
steps necessary to accomplish substantial utilization of the invention;
    (2) For failure of the licensee, upon bringing the invention to the 
point of practical or commercial application, to continue to make the 
benefits of the invention reasonably accessible to the public;
    (3) If an exclusive or partially exclusive license, for failure of 
the licensee to expend the minimum sum or to take any other action 
specified in the license agreement;
    (4) For failure of the licensee to make any payments or periodic 
reports required by the license;
    (5) For a false statement or omission of a material fact in the 
license application submitted pursuant to Sec. 781.62 or in any 
required report;
    (6) For failure to grant a nonexclusive or partially exclusive 
license when required by the Secretary in accordance with this 
regulation; or
    (7) For breach of any other term or condition on which the license 
was issued.
    (b) Before terminating, in whole or in part, any license granted 
pursuant to this part, the Department shall mail to the licensee and any 
sublicensee of record, at the last address filed with the Department, a 
written notice of the Department's intention to terminate, in whole or 
in part, the license, with reasons therefor, and the licensee and any 
sublicensee shall be allowed thirty (30) days from the date of the 
mailing of such notice, or within such further period as may be granted 
by the Department for good cause shown in writing, to remedy any breach 
of any term or condition referred to in the notice or to show cause why 
the license should not be terminated in whole or in part.
    (c) Termination shall be effective upon final written notice thereof 
to the licensee, after consideration of the response, if any, to the 
notice of intent to terminate, unless an appeal is taken in accordance 
with Sec. 781.65, in which

[[Page 461]]

case the effective date of the termination is stayed, pending a final 
administrative decision on the appeal.



Sec. 781.65  Appeals.

    (a) The following parties have the right to appeal under this part:
    (1) A person whose application for a license has been denied;
    (2) A licensee or sublicensee whose license has been terminated, in 
whole or in part, pursuant to Sec. 781.64; and
    (3) A third party who has participated under Sec. 781.63 of this 
regulation.
    (b) Appeal under paragraph (a) of this section shall be initiated by 
filing a Notice of Appeal with the Secretary, ATTN: Invention Licensing 
Appeal Board, with a copy to the General Counsel ATTN: Assistant General 
Counsel for Patents, within thirty (30) days from the date of receipt of 
a written notice by the Department. The Notice of Appeal shall specify 
the portion of the decision from which the appeal is taken. A statement 
of fact and argument in the form of a brief in support of the appeal 
shall be submitted with the notice of appeal or within thirty (30) days 
thereafter. Upon receipt of a Notice of Appeal, the General Counsel 
shall have thirty (30) days to transmit a copy of the administrative 
record of the decision to the Board with a copy to appellant. The 
General Counsel shall respond to appellant within 30 days from receipt 
of appellant's brief.
    (c) The appellant shall have the burden of proving by a 
preponderance of evidence, based upon the administrative record as 
supplemented by evidence and argument submitted by the parties to the 
appeal, that the decision appealed from should be reversed or modified.
    (d) The Board shall offer to the applicant, or to any other party 
who has participated under Sec. 781.63, an opportunity to join as a 
party to the appeal.
    (e) A hearing may be requested by any party to the appeal within a 
time period set by the Board.
    (f) Except as set forth in this part, all Board proceedings shall be 
conducted pursuant to the Rules of Practice of the Department of Energy 
Board of Contract Appeals, 10 CFR part 1023, modified as the Board may 
determine to be necessary or appropriate.
    (g) The decision of the Board shall constitute the final action of 
the Department on the matter.



Sec. 781.66  Third-party termination proceedings.

    (a) Any interested person may petition the Secretary to terminate, 
in whole or in part, an exclusive or partially exclusive license three 
years after such license was granted.

The petition shall be sent to the Secretary, ATTN: Invention Licensing 
Appeal Board, and shall be verified and accompanied by any supporting 
documents or affidavits that the petitioner believes demonstrates that 
either:
    (1) The license has tended substantially to lessen competition or to 
result in undue concentration; or
    (2) The licensee has not taken effective steps, or within a 
reasonable time thereafter is not expected to take such steps, necessary 
to accomplish substantial utilization of the invention.
    (b) Upon receipt of such a petition, the Board shall forward a copy 
of the petition and supporting documents to the General Counsel, ATTN: 
Assistant General Counsel for Patents. The General Counsel shall then 
forward a copy of the petition and supporting documents to the licensee, 
who shall have thirty (30) days from receipt of the petition to submit a 
response thereto together with any supporting documents and affidavits. 
The General Counsel shall then make a preliminary review of the 
petition, response, and any supporting documents or affidavits to 
determine whether a hearing on the matter is justified. If the General 
Counsel finds that a hearing on the matter has been justified, he shall 
so advise the Board in writing.
    (c) If the General Counsel finds that a hearing has not been 
justified by petitioner, he shall so find in writing. The General 
Counsel shall promptly notify the Board and the petitioner of the 
finding. The petitioner may appeal this finding by filing a Notice of 
Appeal with the Board within thirty (30) days of the date of the mailing 
of the finding by the General Counsel. The Board shall review the 
finding concerning petitioner's justification for a hearing, and shall 
uphold the finding of the General Counsel unless petitioner can

[[Page 462]]

demonstrate that the finding was arbitrary, capricious, or an abuse of 
discretion. If the Board reverses the finding as to the justification 
for a hearing, the petition shall be heard by the Board in accordance 
with the procedures outlined in paragraph (d) of this section.
    (d) When it has been determined, in accordance with paragraph (b) of 
this section, that a hearing is justified, the Board shall so notify the 
petitioner and the licensee, and the Board shall publish a Notice in the 
Federal Register advising the public that a hearing is to be scheduled. 
The Notice shall describe the subject matter of the hearing and shall 
advise of the right of any interested person to file a petition with the 
Board, within thirty (30) days of the Notice, showing cause why he 
should be added as a party to the hearing. The Board shall, in its 
discretion, determine who should be added as a party.
    (e) Any party shall have the right to request a full evidentiary 
hearing on the matter. In lieu thereof, if the parties agree, the matter 
may be decided at an ``informal'' hearing in which no party has the 
right to call and cross-examine witnesses, but in which the parties have 
the right to present oral argument to the Board to supplement briefs, 
affidavits, and other documentary evidence that may have been submitted. 
Any hearing and related procedures shall be conducted pursuant to the 
Rules of Practice of the Department of Energy Board of Contract Appeals, 
10 CFR part 1023, modified as the Board may determine to be necessary or 
appropriate.
    (f) If petitioner alleges that the exclusive or partially exclusive 
license has tended substantially to lessen competition or to result in 
undue concentration in any section of the country in any line of 
commerce to which the technology relates, the petitioner shall have the 
burden to prove the allegation by a preponderance of evidence.
    (g) If petitioner alleges that licensee has failed to accomplish 
substantial utilization of the invention and has presented sufficent 
proof, in accordance with paragraph (b) of this section, to justify a 
hearing on the matter, the licensee shall have the burden to prove, by a 
preponderance of evidence, that he has taken effective steps, or within 
a reasonable time thereafter is expected to take such steps, necessary 
to accomplish substantial utilization of the invention.
    (h) The Board shall make findings of fact and render a conclusion of 
law with respect to the challenged license. The conclusion of the Board 
shall constitute the final action of the Department on the matter.

                           Special Provisions



Sec. 781.71  Litigation.

    (a) An exclusive or partially exclusive licensee may be granted the 
right to sue at his own expense any party who infringes the rights set 
forth in his license and covered by the licensed patent. Upon a 
determination that the Government is a necessary party, the licensee may 
join the Government of the United States, upon consent of the Attorney 
General, as a party complainant in such suit. The licensee shall pay 
costs and any final judgment or decree that may be rendered against the 
Government in such suit. The Government shall have the absolute right to 
intervene in any such suit at its own expense.
    (b) The licensee shall be obligated to furnish promptly to the 
Government, upon request, copies of all pleadings and other papers filed 
in any such suit and of evidence adduced in proceedings relating to the 
licensed patent, including but not limited to, negotiations, agreements 
settling claims by a licensee based on a licensed patent, and all other 
books, documents, papers and records pertaining to such suit. If, as a 
result of any such litigation, the patent shall be declared invalid, the 
licensee shall have the right to surrender his license and be relieved 
from any further obligation thereunder.



Sec. 781.81  Transfer of custody.

    The Department may enter into an agreement to transfer custody of 
any patent to another Government agency for purposes of administration, 
including the granting of licenses pursuant to this part.

[[Page 463]]



PART 782_CLAIMS FOR PATENT AND COPYRIGHT INFRINGEMENT--Table of Contents



                            Subpart A_General

Sec.
782.1 Purpose.
782.2 Objectives.
782.3 Authority.

                  Subpart B_Requirements and Procedures

782.5 Contents of communication initiating claim.
782.6 Processing of administrative claims.
782.7 Incomplete notice of infringement.
782.8 Indirect notice of infringement.

    Authority: Dept. of Energy Organization Act; sec. 651, 91 Stat. 601, 
42 U.S.C. 7261; Atomic Energy Act of 1954; sec. 107(d), 88 Stat. 1241, 
42 U.S.C. 5817(d); sec. 161(g), 80 Stat. 443, 42 U.S.C. 2201(g); sec. 
172, 62 Stat. 933, 42 U.S.C. 2223; Foreign Assistance Act of 1961, sec. 
2356, 75 Stat. 440, 22 U.S.C. 2356; Patents, Invention Secrecy Act; sec. 
183, 66 Stat. 4, 35 U.S.C. 183; Judiciary and Judical Procedure Act, 
sec. 1498, 62 Stat. 601, 28 U.S.C. 1498.

    Source: 45 FR 26950, Apr. 22, 1980, unless otherwise noted.



                            Subpart A_General



Sec. 782.1  Purpose.

    The purpose of this regulation is to set forth policies and 
procedures for the filing and disposition of claims asserted against the 
Department of Energy of infringement of privately owned rights in 
patented inventions or copyrighted works.



Sec. 782.2  Objectives.

    Whenever a claim of infringement of privately owned rights in 
patented inventions or copyrighted works is asserted against the 
Department of Energy, all necessary steps shall be taken to investigate 
and to settle administratively, to deny, or otherwise to dispose of such 
claim prior to suit against the United States.



Sec. 782.3  Authority.

    The General Counsel or the General Counsel's delegate is authorized 
to investigate, settle, deny, or otherwise dispose of all claims of 
patent and copyright infringement pursuant to 42 U.S.C. 2201(g), 2223, 
5817(d) and 7261; the Foreign Assistance Act of 1961, 22 U.S.C. 2356 
(formerly the Mutual Security Acts of 1951 and 1954); the Invention 
Secrecy Act, 35 U.S.C. 183; and 28 U.S.C. 1498.



                  Subpart B_Requirements and Procedures



Sec. 782.5  Contents of communication initiating claim.

    (a) Requirements for claim. A patent or copyright infringement claim 
for compensation, asserted against the United States as represented by 
the Department of Energy under any of the applicable statutes cited in 
Sec. 782.3, must be actually communicated to and received by an agency, 
organization, office, or field establishment within the Department of 
Energy. Claims must be in writing and must include the following:
    (1) An allegation of infringement;
    (2) A request, either expressed or implied, for compensation;
    (3) A citation of the patents or copyrighted items alleged to be 
infringed;
    (4) In the case of a patent infringement claim, a sufficiently 
specific designation to permit identification of the items or processes 
alleged to infringe the patents, giving the commercial designation if 
known to the claimant, or, in the case of a copyright infringement 
claim, the acts alleged to infringe the copyright;
    (5) In the case of a patent infringement claim, a designation of at 
least one claim of each patent alleged to be infringed or, in the case 
of a copyright infringement claim, a copy of each work alleged to be 
infringed;
    (6) As an alternative to paragraphs (a) (4) and (5) of this section, 
certification that the claimant has made a bona fide attempt to 
determine the items or processes which are alleged to infringe the 
patents, or the acts alleged to infringe the copyrights, but was unable 
to do so, giving reasons, and stating a reasonable basis for the 
claimant's belief that the patents or copyrighted items are being 
infringed.
    (b) Additional information for patent infringement claims. In 
addition to the information listed in paragraph (a) of this section the 
following material and information generally is necessary in the course 
of processing a claim of patent infringement. Claimants are encouraged 
to furnish this information at

[[Page 464]]

the time of filing a claim to permit rapid processing and resolution of 
the claim.
    (1) A copy of the asserted patents and identification of all claims 
of the patents alleged to be infringed.
    (2) Identification of all procurements known to claimant that 
involve the accused items or processes, including the identity of the 
vendors or contractors and the Government acquisition activity or 
activities.
    (3) A detailed identification and description of the accused 
articles or processes, particularly where the articles or processes 
relate to components or subcomponents of the item acquired, and an 
element-by-element comparison of representative claims with the accused 
articles or processes. If available, the identification and description 
should include documentation and drawings to illustrate the accused 
articles or processes in sufficient detail to enable verification that 
the claims of the asserted patents read on the accused articles or 
processes.
    (4) Names and addresses of all past and present licensees under the 
patents and copies of all license agreements and releases involving the 
patents.
    (5) A brief description of all litigation in which the patents have 
been or are now involved, and their present status.
    (6) A list of all persons to whom notices of infringement have been 
sent, including all departments and agencies of the Government, and a 
statement of the status or ultimate disposition of each.
    (7) A description of Government employment or military service, if 
any, by the inventors or patent owner.
    (8) A list of all contracts between the Government and inventors, 
patent owner, or anyone in privity with them that were in effect at the 
time of conception or actual reduction to practice of the inventions 
covered by the patents.
    (9) Evidence of title to the asserted patents or other right to make 
the claim.
    (10) If it is available to claimant, a copy of the Patent Office 
file of each patent.
    (11) Pertinent prior art of which the claimant has become aware 
after issuance of the asserted patents.
    In addition to the foregoing, if claimant can provide a statement 
that the investigation may be limited to the specifically identified 
accused articles or processes, or to a specific acquisition (e.g. 
identified contracts), it may speed disposition of the claim.
    (c) Denial for refusal to provide information. In the course of 
investigating a claim, it may become necessary for the Department of 
Energy to request information in the control and custody of claimant 
that is relevant to the disposition of the claim. Failure of the 
claimant to respond to a request for such information may be sufficient 
reason alone for denying a claim.



Sec. 782.6  Processing of administrative claims.

    (a) Filing and forwarding of claims. All communications regarding 
claims should be addressed to:

General Counsel, ATTN: Assistant General Counsel for Patents, Office of 
the General Counsel, U.S. Department of Energy, Washington, DC 20545.


If any communication relating to a claim or possible claim of patent or 
copyright infringement is received by an agency, organization, office, 
or field establishment within the Department of Energy, it should be 
forwarded to the Assistant General Counsel for Patents.
    (b) Disposition and notification. The General Counsel shall 
investigate and administratively settle, deny, or otherwise dispose of 
each claim by denial or settlement. When a claim is denied, the 
Department shall so notify the claimant or his authorized representative 
and provide the claimant with the reasons for denying the claim. 
Disclosure of information shall be subject to applicable statutes, 
regulations, and directives pertaining to security, access to official 
records, and the rights of others.

[[Page 465]]



Sec. 782.7  Incomplete notice of infringement.

    (a) If a communication alleging patent or copyright infringement is 
received that does not meet the requirements set forth above in Sec. 
782.5, the sender shall be advised in writing by the General Counsel:
    (1) That the claim for infringement has not been satisfactorily 
presented; and
    (2) Of the elements considered necessary to establish a claim.
    (b) A communication, such as a mere offer of a license, in which an 
infringement is not alleged in accordance with Sec. 782.5(a) of this 
part shall not be considered a claim for infringement.



Sec. 782.8  Indirect notice of infringement.

    If a patent or copyright owner communicates an allegation of 
infringement in the performance of a Government contract, grant, or 
other arrangement to addressees other than those specified in Sec. 
782.5(a), such as Department of Energy contractors including contractors 
operating government-owned facilities, the communication shall not be 
considered a claim within the meaning of Sec. 782.5 until it meets the 
requirements of that section.



PART 783_WAIVER OF PATENT RIGHTS--Table of Contents



Sec.
783.1 Waiver.
783.2 Limitations.

    Authority: Secs. 152, 161, 68 Stat. 944, 948, as amended; (42 U.S.C. 
2182, 2201).

    Source: 41 FR 56784, Dec. 30, 1976, unless otherwise noted.



Sec. 783.1  Waiver.

    The Department of Energy, hereinafter ``DOE'', waives its rights 
under section 152 of the Atomic Energy Act of 1954 (66 Stat. 944) with 
respect to inventions and discoveries resulting from the use of the 
following materials and services:
    (a) Source materials, special nuclear materials, and heavy water 
distributed by DOE in accordance with the ``Schedules of Base Charges 
for Materials Sold of Leased by DOE for Use in Private Atomic Energy 
Development and Base Prices Which DOE Will Pay for Certain Products From 
Private Reactors.''
    (b) Radioactive and stable isotopes, irradiation services (this 
waiver does not include inventions or discoveries made by DOE or DOE 
contractor personnel in the course of or in connection with the 
performance of an irradiation service), and radioactive material 
resulting from the performance of an irradiation service sold or 
distributed by DOE in accordance with the prices and charges established 
by:
    (1) Oak Ridge National Laboratory Inventory and Price List of 
electromagnetically enriched and other stable isotopes.
    (2) Oak Ridge National Laboratory Catalog and Price List of 
radioisotopes, special materials, and services.
    (3) Idaho National Engineering Laboratory Catalog of Price and 
charges on irradiation services at the materials testing reactor. The 
waiver does include inventions or discoveries made by sponsor personnel 
in the course of their use of the Gamma Irradiation Facility at the 
Idaho National Engineering Laboratory.
    (4) Argonne National Laboratory schedule of charges for irradiation 
services at its irradiation facilities.
    (5) Brookhaven National Laboratory schedule of prices and charges 
for irradiation services and radioisotopes.



Sec. 783.2  Limitations.

    (a) Except with regard to the use of the Gamma facility at the Idaho 
National Engineering Laboratory, nothing contained in this part shall be 
deemed to waive any rights in inventions or discoveries where a person 
or a group of persons acting on behalf of the person requesting the 
irradiation service works at the DOE facility in connection with the 
irradiation service. In such event, special arrangements are made.
    (b) Nothing contained in this part shall be construed to affect the 
provisions of any written agreement to which DOE has or may become a 
party.



PART 784_PATENT WAIVER REGULATION--Table of Contents



Sec.
784.1 Scope and applicability.

[[Page 466]]

784.2 Definitions.
784.3 Policy.
784.4 Advance waiver.
784.5 Waiver of identified inventions.
784.6 National security considerations for waiver of certain sensitive 
          inventions.
784.7 Class waiver.
784.8 Procedures.
784.9 Content of waiver requests.
784.10 Record of waiver determinations.
784.11 Bases for granting waivers.
784.12 Terms and conditions of waivers.
784.13 Effective dates.

    Authority: 42 U.S.C. 7151; 42 U.S.C. 5908; 42 U.S.C. 2182; 35 U.S.C. 
202 and 210; 42 U.S.C. 7261a.

    Source: 61 FR 36614, July 12, 1996, unless otherwise noted.



Sec. 784.1  Scope and applicability.

    (a) This part states the policy and establishes the procedures, 
terms and conditions governing waiver of the Government's rights in 
inventions made under contracts, grants, agreements, understandings or 
other arrangements with the Department of Energy (DOE).
    (b) This part applies to all inventions conceived or first actually 
reduced to practice in the course of or under any contract, grant, 
agreement, understanding, or other arrangement with or for the benefit 
of DOE (including any subcontract, subgrant, or subagreement), the 
patent rights disposition of which is governed by section 152 of the 
Atomic Energy Act of 1954, 42 U.S.C. 2182, or section 9 of the Federal 
Nonnuclear Energy Research and Development Act of 1974, 42 U.S.C. 5908. 
In funding agreements with nonprofit organizations or small business 
firms, when title or other rights are reserved to the Government under 
the authority of 35 U.S.C. 202(a), this part will apply to any waiver of 
such rights. The patent waiver provisions in this part supersede the 
patent waiver regulations previously included with patent regulations at 
41 CFR part 9-9.100.



Sec. 784.2  Definitions.

    As used in this part:
    Contract means procurement contracts, grants, agreements, 
understandings and other arrangements (including Cooperative Research 
and Development Agreements [CRADAs], Work for Others and User Facility 
agreements, which includes research, development, or demonstration work, 
and includes any assignment or substitution of the parties, entered 
into, with, or for the benefit of DOE.
    Contractor means entities performing under contracts as defined 
above.
    Patent Counsel means the DOE Patent Counsel assisting the 
contracting activity.



Sec. 784.3  Policy.

    (a) Section 6 of Public Law 96-517 (the Bayh-Dole patent and 
trademark amendments of 1980), as amended, as codified at 35 U.S.C. 
200--212, provides that title to inventions conceived or first actually 
reduced to practice in the course of or under any contract, grant, 
agreement, understanding, or other arrangement entered into with or for 
the benefit of the Department of Energy (DOE) vests in the United 
States, except where 35 U.S.C. 202 provides otherwise for nonprofit 
organizations or small business firms. However, where title to such 
inventions vests in the United States, the Secretary of Energy 
(hereinafter Secretary) or designee may waive all or any part of the 
rights of the United States, subject to required terms and conditions, 
with respect to any invention or class of inventions made or which may 
be made by any person or class of persons in the course of or under any 
contract of DOE if it is determined that the interests of the United 
States and the general public will best be served by such waiver. In 
making such determinations, the Secretary or designee shall have the 
following objectives:
    (1) Making the benefits of the energy research, development, and 
demonstration program widely available to the public in the shortest 
practicable time;
    (2) Promoting the commercial utilization of such inventions;
    (3) Encouraging participation by private persons in DOE's energy 
research, development, and demonstration programs; and
    (4) Fostering competition and preventing undue market concentration 
or the creation or maintenance of other situations inconsistent with the 
antitrust laws.
    (b) If it is not possible to attain the objectives in paragraphs 
(a)(1) through

[[Page 467]]

(4) immediately and simultaneously for any specific waiver 
determination, the Secretary or designee will seek to reconcile these 
objectives in light of the overall purposes of the DOE patent waiver 
policy, as set forth in section 152 of the Atomic Energy Act of 1954, 42 
U.S.C. 2182, section 9 of the Federal Nonnuclear Energy Research and 
Development Act of 1974, 42 U.S.C. 5908, Public Law 99-661, 42 U.S.C. 
7261a, and, where not inconsistent therewith, the Presidential 
Memorandum to the Heads of Executive Departments and Agencies on 
Government Patent Policy issued February 18, 1983 and Executive Order 
No. 12591 issued April 10, 1987.
    (c) The policy set forth in this section is applicable to all types 
of contracts as defined in Sec. 784.2 of this part.



Sec. 784.4  Advance waiver.

    This section covers inventions that may be conceived or first 
actually reduced to practice in the course of or under a particular 
contract. In determining whether an advance waiver will best serve the 
interests of the United States and the general public, the Secretary or 
designee (currently the Assistant General Counsel for Technology 
Transfer and Intellectual Property) shall, at a minimum, specifically 
include as considerations the following:
    (a) The extent to which the participation of the contractor will 
expedite the attainment of the purposes of the program;
    (b) The extent to which a waiver of all or any part of such rights 
in any or all fields of technology is needed to secure the participation 
of the particular contractor;
    (c) The extent to which the work to be performed under the contract 
is useful in the production or utilization of special nuclear material 
or atomic energy;
    (d) The extent to which the contractor's commercial position may 
expedite utilization of the research, development, and demonstration 
results;
    (e) The extent to which the Government has contributed to the field 
of technology to be funded under the contract;
    (f) The purpose and nature of the contract, including the intended 
use of the results developed thereunder;
    (g) The extent to which the contractor has made or will make 
substantial investment of financial resources or technology developed at 
the contractor's private expense which will directly benefit the work to 
be performed under the contract;
    (h) The extent to which the field of technology to be funded under 
the contract has been developed at the contractor's private expense;
    (i) The extent to which the Government intends to further develop to 
the point of commercial utilization the results of the contract effort;
    (j) The extent to which the contract objectives are concerned with 
the public health, public safety, or public welfare;
    (k) The likely effect of the waiver on competition and market 
concentration;
    (l) In the case of a domestic nonprofit educational institution 
under an agreement not governed by Chapter 18 of Title 35, United States 
Code, the extent to which such institution has a technology transfer 
capability and program approved by the Secretary or designee as being 
consistent with the applicable policies of this section;
    (m) The small business status of the contractor under an agreement 
not governed by Chapter 18 of Title 35, United States Code, and
    (n) Such other considerations, such as benefit to the U.S. economy, 
that the Secretary or designee may deem appropriate.



Sec. 784.5  Waiver of identified inventions.

    This section covers the relinquishing by the Government to the 
contractor or inventor of title rights in a particular identified 
subject invention. In determining whether such a waiver of an identified 
invention will best serve the interests of the United States and the 
general public, the Secretary or designee shall, at a minimum, 
specifically include as considerations the following:
    (a) The extent to which such waiver is a reasonable and necessary 
incentive to call forth private risk capital for the development and 
commercialization of the invention;
    (b) The extent to which the plans, intentions, and ability of the 
contractor

[[Page 468]]

or inventor will obtain expeditious commercialization of such invention;
    (c) The extent to which the invention is useful in the production or 
utilization of special nuclear material or atomic energy;
    (d) The extent to which the Government has contributed to the field 
of technology of the invention;
    (e) The purpose and nature of the invention, including the 
anticipated use thereof;
    (f) The extent to which the contractor has made or will make 
substantial investment of financial resources or technology developed at 
the contractor's private expense which will directly benefit the 
commercialization of the invention;
    (g) The extent to which the field of technology of the invention has 
been developed at the contractor's expense;
    (h) The extent to which the Government intends to further develop 
the invention to the point of commercial utilization;
    (i) The extent to which the invention is concerned with the public 
health, public safety, or public welfare;
    (j) The likely effect of the waiver on competition and market 
concentration;
    (k) In the case of a domestic nonprofit educational institution 
under an agreement not governed by Chapter 18, Title 35, United States 
Code, the extent to which such institution has a technology transfer 
capability and program approved by the Secretary or designee as being 
consistent with the applicable policies of this section;
    (l) The small business status of the contractor, under an agreement 
not governed by Chapter 18 of Title 35, United States Code; and,
    (m) Such other considerations, such as benefit to the U.S. economy 
that the Secretary or designee may deem appropriate.



Sec. 784.6  National security considerations for waiver of certain sensitive inventions.

    (a) Whenever, in the course of or under any Government contract or 
subcontract of the Naval Nuclear Propulsion Program or the nuclear 
weapons programs or other atomic energy defense activities of the 
Department of Energy, a contractor makes an invention or discovery to 
which title vests in the Department of Energy pursuant to statute, the 
contractor may request waiver of any or all of the Government's property 
rights. The Secretary of Energy or designee may decide to waive the 
Government's rights.
    (b) In making a decision under this section, the Secretary or 
designee shall consider, in addition to the objectives of DOE waiver 
policy as specified in Sec. 784.3(a)(1) through (4), and the 
considerations specified in Sec. 784.4 for advance waivers, and Sec. 
784.5 for waiver of identified inventions, the following:
    (1) Whether national security will be compromised;
    (2) Whether sensitive technical information (whether classified or 
unclassified) under the Naval Nuclear Propulsion Program or the nuclear 
weapons programs or other atomic energy defense activities of the 
Department of Energy for which dissemination is controlled under Federal 
statutes and regulations will be released to unauthorized persons;
    (3) Whether an organizational conflict of interest contemplated by 
Federal statutes and regulations will result, and
    (4) Whether waiving such rights will adversely affect the operation 
of the Naval Nuclear Propulsion Program or the nuclear weapons programs 
or other atomic energy defense activities of the Department of Energy.
    (c) A decision under this Sec. 784.6 shall be made within 150 days 
after the date on which a complete request for waiver, as described by 
paragraph (d) of this section, has been submitted to the Patent Counsel 
by the contractor.
    (d) In addition to the requirements for content which apply 
generally to all waiver requests under paragraph (a) of this section, a 
requestor must include a full and detailed statement of facts, to the 
extent known by or available to the requestor, directed to the 
considerations set forth in paragraphs (b)(1) through (4) of this 
section, as applicable. To be considered complete, a waiver request must 
contain sufficient information, in addition to the content requirements 
under paragraphs (a) and (b) of this section, to allow the Secretary or 
designee to make a decision

[[Page 469]]

under this section. For advance waiver requests, such information shall 
include, at a minimum:
    (1) An identification of all of the requestor's contractual 
arrangements involving the Government (including contracts, 
subcontracts, grants, or other arrangements) in which the technology 
involved in the contract was developed or used and any other funding of 
the technology by the Government, whether direct or indirect, involving 
any other party, of which the requestor is aware;
    (2) A description of the requestor's past, current, and future 
private investment in and development of the technology which is the 
subject of the contract. This includes expenditures not reimbursed by 
the Government on research and development which will directly benefit 
the work to be performed under the instant contract, the amount and 
percentage of contract costs to be shared by the requestor, the out-of-
pocket costs of facilities or equipment to be made available by the 
requestor for performance of the contract work which are not charged 
directly or indirectly to the Government under contract, and the 
contractor's plans and intentions to further develop and commercialize 
the technology at private expense;
    (3) A description of competitive technologies or other factors which 
would ameliorate any anticompetitive effect of granting the waiver.
    (4) Identification of whether the contract pertains to work that is 
classified, or sensitive, i.e., unclassified but controlled pursuant to 
section 148 of the Atomic Energy Action of 1954, as amended (42 U.S.C. 
2168), or subject to export control under Chapter 17 of the Military 
Critical Technology List (MCTL) contained in Department of Defense 
Directive 5230.25 including identification of all principal uses of the 
subject matter of the contract, whether inside or outside the contractor 
program, and an indication of whether any such uses involve classified 
or sensitive technologies.
    (5) Identification of all DOE and DOD programs and projects in the 
same general technology as the contract for which the requestor intends 
to be providing program planning advice or has provided program planning 
advice within the last three years.
    (e) For identified invention requests under this section, such 
requests shall include at a minimum:
    (1) A brief description of the intentions of the requestor (or its 
present or intended licensee) to commercialize the invention. This 
description should include:
    (i) Estimated expenditures,
    (ii) Anticipated steps,
    (iii) The associated time periods to bring the invention to 
commercialization, and
    (iv) A statement that requestor (or its present or intended 
licensee) has the capability to carry out its stated intentions.
    (2) A description of any continuing Government funding of the 
development of the invention (including investigation of materials or 
processes for use therewith), from whatever Government source, whether 
direct or indirect, and, to the extent known by the requestor, any 
anticipated future Government funding to further develop the invention.
    (3) A description of competitive technologies or other factors which 
would ameliorate any anticompetitive effects of granting the waiver.
    (4) A statement as to whether or not the requestor would be willing 
to reimburse the Department of Energy for any and all costs and fees 
incurred by the Department in the preparation and prosecution of the 
patent applications covering the invention that is the subject of the 
waiver request.
    (5) Where applicable, a statement of reasons why the request was not 
timely filed in accordance with the applicable patent rights clause of 
the contract, or why a request for an extension of time to file the 
request was not filed in a timely manner.
    (6) Identification of whether the invention pertains to work that is 
classified, or sensitive, i.e., unclassified but controlled pursuant to 
section 148 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 
2168), or subject to export control under Chapter 17 of the Military 
Critical Technology List (MCTL) contained in Department of Defense 
Directive 5230.25, including identification of all principal uses of

[[Page 470]]

the invention inside or outside the contractor program, and an 
indication of whether any such uses involve classified or sensitive 
technologies.
    (7) Identification of all DOE and DOD programs and projects in the 
same general technology as the invention for which the requestor intends 
to be providing program planning advice or has provided program planning 
advice within the last three years.
    (8) A statement of whether a classification review of the invention 
disclosure, any resulting patent application(s), and/or any reports and 
other documents disclosing a substantial portion of the invention, has 
been made, together with any determinations on the existence of 
classified or sensitive information in either the invention disclosure, 
the patent application(s), or reports or other documents disclosing a 
substantial portion of the invention; and
    (9) Identification of any and all proposals, work for other 
activities, or other arrangements submitted by the requestor, DOE, or a 
third party, of which requestor is aware, which may involve further 
funding of the work on the invention at either the contractor facility 
where the invention arose or another facility owned by the Government.
    (f) Patent Counsel will notify the requestor promptly if the waiver 
request is found not to be a complete request and, in that event, will 
provide the requestor with a reasonable period, not to exceed 60 days, 
to correct any such incompleteness. If requestor does not respond within 
the allotted time period, the waiver request will be considered to be 
withdrawn. If requestor responds within the allotted time period, but 
the submittal is still deemed incomplete or insufficient, the waiver 
request may be denied.
    (g) As set forth in paragraph (c) of this section, waiver decisions 
shall be made within 150 days after the date on which a complete request 
for waiver of such rights, as specified in this section, has been 
submitted by the requestor to the DOE Patent Counsel. If the original 
waiver request does not result in a communication from DOE Patent 
Counsel indicating that the request is incomplete, the 150-day period 
for decision commences on the date of receipt of the waiver request. If 
the original waiver request results in a communication from DOE Patent 
Counsel indicating that the request is incomplete, the 150-day period 
for decision commences on the date on which supplementary information is 
received by Patent Counsel sufficient to make the waiver request 
complete. For advance waiver requests, if requestor is not notified that 
the request is incomplete, the 150-day period for decision commences on 
the date of receipt of the request, or on the date on which negotiation 
of contract terms is completed, whichever is later.
    (h) Failure of DOE to make a patent waiver decision within the 
prescribed 150-day period shall in no way be construed as a grant of the 
waiver.



Sec. 784.7  Class waiver.

    This section covers relinquishing of patent title rights by the 
Government to a class of persons or to a class of inventions. The 
authorization for class waivers is to be found at 42 U.S.C. 5908(c). 
Class waivers may be appropriate in situations where all members of a 
particular class would likely qualify for an advance or identified 
invention waiver. Normally, class waivers are originated by the 
Department. However, any person with a direct and substantial interest 
in a DOE program may request a class waiver by forwarding a written 
request therefor to the Patent Counsel. While no particular format for 
requesting a class waiver is prescribed, any request for a class waiver 
and any resulting determination by the Secretary or designee must 
address the pertinent objectives and considerations set forth in 
Sec. Sec. 784.3(a), 784.4, 784.5, and 784.6.



Sec. 784.8  Procedures.

    (a) All requests for waivers shall be in writing. Each request for a 
waiver other than a class waiver shall include the information set forth 
in Sec. 784.9. Such requests may be submitted by existing or 
prospective contractors in the case of requests for an advance waiver 
and by contractors, including successor contractors at a facility, or 
employee-inventors in the case of requests for waiver of identified 
inventions.

[[Page 471]]

    (b) A request for an advance waiver should be submitted to the 
Contracting Officer (subcontractors may submit through their prime 
contractors) at any time prior to execution of the contract or 
subcontract, or within thirty days thereafter, or within such longer 
period as may be authorized by Patent Counsel for good cause shown in 
writing. If the purpose, scope, or cost of the contract is substantially 
altered by modification or extension after the waiver is granted, a new 
waiver request will be required. When advance waivers are granted, the 
provisions of the ``Patent Rights--Waiver'' clause set forth in Sec. 
784.12 shall be used in contracts which are the subject of the waivers, 
unless modified with the approval of the Patent Counsel to conform to 
the scope of the waiver granted. (See Sec. 784.12.) Advance waivers may 
be requested for all inventions which may be conceived or first actually 
reduced to practice under a DOE contract. An advance waiver may also be 
requested for an identified invention conceived by the contractor before 
the contract but which may be first actually reduced to practice under 
the contract. Such waiver request must include a copy of any patent or 
patent application covering the identified invention, or if no patent 
application has been filed, a complete description of the invention.
    (c) A request for waiver (other than an advance or class waiver) for 
an identified invention must be submitted to the Patent Counsel at the 
time the invention is to be reported to DOE or not later than eight 
months after conception and/or first actual reduction to practice, 
whichever occurs first in the course of or under the contract, or such 
longer period as may be authorized by Patent Counsel for good cause 
shown in writing by the requestor. The time for submitting a waiver 
request will not normally be extended past the time the invention has 
been advertised for licensing by DOE. If the Government has already 
filed a patent application on the invention, the requestor should 
indicate whether or not it is willing to reimburse the Government for 
the costs of searching, prosecution, filing and maintenance fees, in the 
event the waiver is granted.
    (d) If the request for waiver contains insufficient information, the 
Patent Counsel may seek additional information from the requestor and 
from other sources. The Patent Counsel will thoroughly analyze the 
request in view of each of the objectives and considerations and shall 
also consider the overall rights obtained by the Government in the 
patent, copyright, and data clauses of the contract. Where it appears 
that a waiver of a lesser part of the rights of the United States than 
requested would be more appropriate in view of the policies set forth, 
the Patent Counsel should attempt to negotiate a compromise acceptable 
to both the requestor and DOE. If approval of a waiver is recommended, 
Patent Counsel shall obtain an indication of agreement by the requestor 
to the proposed waiver scope, terms and conditions.
    (e) The Patent Counsel will prepare a Statement of Considerations 
setting forth the rationale for either approving or denying the waiver 
request and will forward the Statement to the General Counsel or 
designee for review thereof. While the Statement need not provide 
specific findings as to each and every consideration of Sec. 784.4 or 
Sec. 784.5 of this part, it will cover those that are decisive, and it 
will explain the basis for the recommended determination. There may be 
occasions when the application of the various individual considerations 
of Sec. 784.4 or Sec. 784.5 of this part to a particular case could 
conflict, and in those instances the conflict will be reconciled giving 
due regard to the overall policies set forth in 784.3(a) (1) through 
(4).
    (f) The Patent Counsel will also obtain comments from the 
appropriate DOE program organization to assist the Patent Counsel in the 
waiver determination. Additionally, if any other Federal Government 
entity has provided funding or will be providing funding, or if a 
subject invention has been made in whole or in part by an employee of 
that entity, Patent Counsel shall obtain permission to waive title to 
the undivided interest in the invention from the cognizant official of 
that entity. In situations where time does not permit a delay in 
contract negotiations for the preparation and mailing

[[Page 472]]

of a full written statement, field Patent Counsel may submit a 
recommendation on the waiver orally to the Assistant General Counsel for 
Technology Transfer and Intellectual Property, who upon verbal 
consultation with the appropriate DOE program organization, shall 
provide a verbal decision to field Patent Counsel. All oral actions 
shall be promptly confirmed in writing. In approving waiver 
determinations, the Secretary or designee shall objectively review all 
requests for waiver in view of the objectives and considerations set 
forth in Sec. Sec. 784.3 through 784.6. If the determination and the 
rationale therefor is not accurately reflected in the Statement of 
Considerations which has been submitted for approval, a new Statement of 
Considerations shall be prepared.
    (g) In the event that a request for advance waiver is approved after 
the effective date of the contract, the Patent Counsel shall promptly 
notify the requestor by letter of the determination and the basis 
therefor. The letter shall state the scope, terms and conditions of such 
waiver. If the terms and conditions of an approved advance waiver were 
not incorporated in the contract when executed, the letter shall inform 
the requestor that the advance waiver shall be effective as of the 
effective date of the contract for an advance waiver of inventions 
identified, i.e., conceived prior to the effective date of the contract, 
or as of the date the invention is reported with an election by the 
contractor to retain rights therein, i.e., for an invention conceived or 
first actually reduced to practice after the effective date of the 
contract; provided a copy of the letter is signed and returned to the 
Contracting Officer by the requestor acknowledging the acceptance of the 
scope, terms and conditions of the advance waiver. After acceptance by 
the contractor of an advance waiver, the Contracting Officer shall cause 
a unilateral no-cost modification to be made to the contract 
incorporating the terms and conditions of the waiver in lieu of previous 
patent rights provisions.
    (h) In the event that a waiver request is denied, the requestor may, 
within thirty days after notification of the denial, request 
reconsideration. Such a request shall include any additional facts and 
rationale not previously submitted which support the request. Request 
for reconsideration shall be submitted and processed in accordance with 
the procedures for submitting waiver requests set forth in this section.



Sec. 784.9  Content of waiver requests.

    (a) Forms (OMB No. 1901-0800) for submitting requests for advance 
and identified invention waivers, indicating the necessary information, 
may be obtained from the Contracting Officer or Patent Counsel. All 
requests for advance and identified invention waivers shall include the 
following information:
    (1) The requestor's identification, business address, and, if 
represented by Counsel, the Counsel's name and address;
    (2) An identification of the pertinent contract or proposed contract 
and a copy of the contract Statement of Work or a nonproprietary 
statement which fully describes the proposed work to be performed;
    (3) The nature and extent of waiver requested;
    (4) A full and detailed statement of facts, to the extent known by 
or available to the requestor, directed to each of the considerations 
set forth in Sec. Sec. 784.4 or 784.5 of this part, as applicable, and 
a statement applying such facts and considerations to the policies set 
forth in Sec. 784.3 of this part. It is important that this submission 
be tailored to the unique aspects of each request for waiver, and be as 
complete as feasible; and
    (5) The signature of the requestor or authorized representative with 
the following statement: ``The facts set forth in this request for 
waiver are within the knowledge of the requestor and are submitted with 
the intention that the Secretary or designee rely on them in reaching 
the waiver determination.''
    (b) In addition to the requirements of paragraph (a) of this 
section, requests for waiver of identified inventions shall include:
    (1) The full names of all inventors;

[[Page 473]]

    (2) A statement of whether a patent application has been filed on 
the invention, together with a copy of such application if filed or, if 
not filed, a complete description of the invention;
    (3) If a patent application has not been filed, any information 
which may indicate a potential statutory bar to the patenting of the 
invention under 35 U.S.C. 102 or a statement that no such bar is known 
to exist; and
    (4) Where the requestor is the inventor, written authorization from 
the applicable contractor or subcontractor permitting the inventor to 
request a waiver.
    (c) Subject to statutes, DOE regulations, requirements, and 
restrictions on the treatment of proprietary and classified information; 
all material submitted in requests for waiver or in support thereof will 
be made available to the public after a determination on the waiver 
request has been made, regardless of whether a waiver is granted. 
Accordingly, requests for waiver should not normally contain information 
or data that the requestor is not willing to have made public. If 
proprietary or classified information is needed to make the waiver 
determination, such information shall be submitted only at the request 
of Patent Counsel.



Sec. 784.10  Record of waiver determinations.

    The Assistant General Counsel for Technology Transfer and 
Intellectual Property shall maintain and periodically update a publicly 
available record of waiver determinations.



Sec. 784.11  Bases for granting waivers.

    (a) The various factual situations which are appropriate for waivers 
cannot be categorized precisely because the appropriateness of a waiver 
will depend upon the manner in which the considerations set forth in 
Sec. Sec. 784.4 or 784.5, and 784.6 if applicable, of this part relate 
to the facts and circumstances surrounding the particular contracting 
situation or the particular invention, in order to best achieve the 
objectives set forth in Sec. 784.3 of this part. However, some examples 
where advance waivers might be appropriate are:
    (1) Cost-shared contracts;
    (2) Situations in which DOE is providing increased funding to a 
specific ongoing privately-sponsored research, development, or 
demonstration project;
    (3) Situations such as Work for Others Agreements, User Facility 
Agreements or CRADAs, involving DOE-approved private use of Government 
facilities where the waiver requestor is funding a substantial part of 
the costs; and
    (4) Situations in which the equities of the contractor are so 
substantial in relation to that of the Government that the waiver is 
necessary to obtain the participation of the contractor.
    (b) Waivers may be granted as to all or any part of the rights of 
the United States to an invention subject to certain rights retained by 
the United States as set forth in Sec. 784.12 of this part. The scope 
of the waiver will depend upon the relationship of the contractual 
situation or identified invention to considerations set forth in 
Sec. Sec. 784.4 or 784.5, and 784.6, if applicable, in order to best 
achieve the objectives set forth in Sec. 784.3. For example, waivers 
may be restricted to a particular field of use in which the contractor 
has substantial equities or a commercial position, or restricted to 
those uses that are not the primary object of the contract effort. 
Waivers may also be made effective for a specified duration of time, may 
be limited to particular geographic locations, may require the 
contractor to license others at reduced royalties in consideration of 
the Government's contribution to the research, development, or 
demonstration effort, or may require return of a portion of the 
royalties or revenue to the Government.
    (c) Contractors shall not use their ability to award subcontracts as 
economic leverage to acquire rights for themselves in the subcontractor 
inventions, where the subcontractor(s) would prefer to petition for 
title. A waiver granted to a prime contractor is not normally applicable 
to inventions of subcontractors. However, in appropriate circumstances, 
the waiver given to the prime contractor may be made applicable to the 
waivable inventions of any or all subcontractors, such as

[[Page 474]]

where there are pre-existing special research and development 
arrangements between the prime contractor and subcontractor, or where 
the prime contractor and subcontractor are partners in a cooperative 
effort. In addition, in such circumstances, the prime contractor may be 
permitted to acquire nonexclusive licenses in the subcontractors' 
inventions when a waiver of the subcontractor inventions is not covered 
by the prime contractor's waiver.
    (d) In advance waivers of identified inventions, the invention will 
be deemed to be a subject invention and the waiver will be considered as 
being effective as of the effective date of the contract (see Sec. 
784.13(a)). This will be true regardless of whether the identified 
invention had been first actually reduced to practice prior to the time 
of contracting or would be reduced to practice under the contract or 
after expiration of the contract. One purpose of advance waivers of 
identified inventions is to establish the rights of the parties to such 
inventions when the facts surrounding the first actual reduction to 
practice prior to or during the contract are or will be difficult to 
establish.



Sec. 784.12  Terms and conditions of waivers.

    The terms and conditions for waivers are set forth in the ``Patent 
Rights--Waiver'' clause in this section. A waiver of all foreign and 
domestic patent rights under a contract authorizes the use of this 
clause with any additions prescribed by the DOE Acquisition Regulations 
(48 CFR Chapter 9) or the terms of the waiver. This clause shall not be 
used in contracts with small business firms or nonprofit organizations 
subject to 35 U.S.C. 200 et seq. If a waiver of different scope is 
granted, the clause shall be modified to conform to the scope of the 
waiver granted. Advance waivers for arrangements other than contracts, 
grants, and cooperative agreements may use other clause provisions 
approved by the Assistant General Counsel for Technology Transfer and 
Intellectual Property, except that all waivers for funding agreements 
shall be subject to the license of clause paragraph (b) and the 
provisions of clause paragraphs (i) and (j). The terms and conditions of 
the clause shall also constitute the basis for confirmatory licenses 
regarding waivers of identified inventions. For inventions under advance 
waivers, a duly executed and approved instrument fully confirmatory of 
all rights to which the Government is entitled is required to be 
submitted promptly after filing a patent application thereon. If, 
however, a waiver request is pending, delivery of the confirmatory 
instrument may be delayed until a determination on the waiver request is 
made. In the case of a waiver of an identified invention pursuant to a 
request for greater rights, the confirmatory instrument shall be agreed 
to or submitted to Patent Counsel before or at the time the waiver is 
granted.

                          Patent Rights--Waiver

    Use the clause at 48 CFR 52.227-12 with the following changes:
    (1) In paragraph (a) ``Definitions'' add the following definitions:
    Background patent means a domestic patent covering an invention or 
discovery which is not a Subject Invention and which is owned or 
controlled by the Contractor at any time through the completion of this 
contract:
    (i) Which the Contractor, but not the Government, has the right to 
license to others without obligation to pay royalties thereon, and
    (ii) Infringement of which cannot reasonably be avoided upon the 
practice of any specific process, method, machine, manufacture or 
composition of matter (including relatively minor modifications thereof) 
which is a subject of the research, development, or demonstration work 
performed under this contract.
    Contract means any contract, grant, agreement, understanding, or 
other arrangement, which includes research, development, or 
demonstration work, and includes any assignment or substitution of 
parties.
    DOE patent waiver regulations means the Department of Energy patent 
waiver regulations at 10 CFR part 784.
    Patent Counsel means the Department of Energy Patent Counsel 
assisting the procuring activity.
    Secretary means the Secretary of Energy.
    (2) In paragraph (a) in the definition of ``Subject invention'' 
substitute: ``course of or'' for: ``performance of work''.
    (3) In paragraph (b) ``Allocation of principal rights,'' add at the 
beginning of first sentence:

[[Page 475]]

    ``Whereas DOE has granted a waiver of rights to subject inventions 
to the Contractor,''.
    (4) In paragraph (c)(1), substitute:
    ``Patent Counsel within six months after conception or first actual 
reduction to practice, whichever occurs first in the course of or under 
this contract, but in any event, prior to any sale, public use, or 
public disclosure of such invention known to the Contractor.'' for.
    ``Contractor officer within 2 months after the inventor discloses it 
in writing to Contractor Personnel responsible for Patent matters * * * 
earlier.''
    (5) In paragraph (c)(2) add at the end: ``The Contractor shall 
notify the Patent Counsel as to those countries (including the United 
States) in which the Contractor will retain title not later than 60 days 
prior to the end of the statutory period.''
    (6) In paragraph (c)(3) substitute: ``but not later than at least 60 
days'' for ``or, if earlier,''
    (7) In paragraph (d) add (d)(5):
    ``(5) If the waiver authorizing the use of this clause is terminated 
as provided in paragraph (p) of this clause.''
    (8) In paragraph (e)(1) add: ``under paragraph (d) of this clause'' 
after ``Government obtains title.''
    (9) In paragraph (e)(2) substitute ``37 CFR part 404 and DOE 
licensing regulations.'' for ``the Federal Property Management 
regulations and agency licensing regulations (if any)''
    (10) In paragraph (f)(5) substitute ``the course of or'' for 
``performance of work''.
    (11) In paragraph (g) substitute paragraphs (1), (2) and (3) as 
follows:
    (1) Unless otherwise directed by the Contracting Officer, the 
Contractor shall include the clause at 48 CFR 952.227-11, suitably 
modified to identify the parties, in all subcontracts, regardless of 
tier, for experimental, developmental, or research work to be performed 
by a small business firm or nonprofit organization, except where the 
work of the subcontract is subject to an Exceptional Circumstances 
Determination by DOE. In all other subcontracts, regardless of tier, for 
experimental, developmental, demonstration, or research work, the 
Contractor shall include the patent rights clause at 48 CFR 952.227-13 
(suitably modified to identify the parties).
    (2) The Contractor shall not, as part of the consideration for 
awarding the subcontract, obtain rights in the subcontractor's subject 
inventions.
    (3) In the case of subcontractors at any tier, Department, the 
subcontractor, and Contractor agree that the mutual obligations of the 
parties created by this clause constitute a contract between the 
subcontractor and the Department with respect to those matters covered 
by this clause.
    (12) Substitute the following for paragraph (k):
    (k) Background Patents
    (1) The Contractor agrees:
    (i) to grant to the Government a royalty-free, nonexclusive license 
under any Background Patent for purposes of practicing a subject of this 
contract by or for the Government in research, development, and 
demonstration work only.
    (ii) that, upon written application by DOE, it will grant to 
responsible parties for purposes of practicing a subject of this 
contract, nonexclusive licenses under any Background Patent on terms 
that are reasonable under the circumstances. If, however, the Contractor 
believes that exclusive or partially exclusive rights are necessary to 
achieve expeditious commercial development or utilization, then a 
request may be made to DOE for DOE approval of such licensing by the 
Contractor.
    (2) Notwithstanding paragraph (k)(1)(ii), the Contractor shall not 
be obligated to license any Background Patent if the Contractor 
demonstrates to the satisfaction of the Secretary or his designee that:
    (i) a competitive alternative to the subject matter covered by said 
Background Patent is commercially available from one or more other 
sources; or
    (ii) the Contractor or its licensees are supplying the subject 
matter covered by said Background Patent in sufficient quantity and at 
reasonable prices to satisfy market needs, or have taken effective steps 
or within a reasonable time are expected to take effective steps to so 
supply the subject matter.
    (13) Add new paragraph (l) Communications as follows:
    All reports and notifications required by this clause shall be 
submitted to the Patent Counsel unless otherwise instructed.
    (14) In paragraph (m) add to end of sentence: ``, except with 
respect to Background Patents, above.''
    (15) In paragraph (n)(4) substitute ``conducted in such a manner 
as'' for ``subject to appropriate conditions.''
    (16) In paragraph (o) add at the end of the parenthetical phrase in 
the heading to the paragraph: ``or grants''.
    (17) In paragraph (o) add paragraph (o)(1)(v) as follows:
    (v) Convey to the Government, using a DOE-approved form, the title 
and/or rights of the Government in each subject invention as required by 
this clause.
    (18) In paragraph (o), substitute the following for (o)(3):
    (3) Final payment under this contract shall not be made before the 
Contractor delivers to the Patent Counsel all disclosures of subject 
inventions required by paragraph (c)(1) of this clause, an acceptable 
final report pursuant to paragraph (f)(7)(ii) of this clause, and all 
past due confirmatory instruments,

[[Page 476]]

and the Patent Counsel has issued a patent clearance certification to 
the Contracting Officer.
    (19) Add paragraphs (p), (q), (r), and (s) as follows:
    (p) Waiver Terminations.
    Any waiver granted to the Contractor authorizing the use of this 
clause (including any retention of rights pursuant thereto by the 
Contractor under paragraph (b) of this clause) may be terminated at the 
discretion of the Secretary or his designee in whole or in part, if the 
request for waiver by the Contractor is found to contain false material 
statements or nondisclosure of material facts, and such were 
specifically relied upon by DOE in reaching the waiver determination. 
Prior to any such termination, the Contractor will be given written 
notice stating the extent of such proposed termination and the reasons 
therefor, and a period of 30 days, or such longer period as the 
Secretary or his designee shall determine for good cause shown in 
writing, to show cause why the waiver of rights should not be so 
terminated. Any waiver termination shall be subject to the Contractor's 
minimum license as provided in paragraph (e) of this clause.
    (q) Atomic Energy.
    No claim for pecuniary award or compensation under the provisions of 
the Atomic Energy Act of 1954, as amended, shall be asserted by the 
Contractor or its employees with respect to any invention or discovery 
made or conceived in the course of or under this contract.
    (r) Publication.
    It is recognized that during the course of work under this contract, 
the Contractor or its employees may from time to time desire to release 
or publish information regarding scientific or technical developments 
conceived or first actually reduced to practice in the course of or 
under this contract. In order that public disclosure of such information 
will not adversely affect the patent interests of DOE or the Contractor, 
approval for release of publication shall be secured from Patent Counsel 
prior to any such release or publication. In appropriate circumstances, 
and after consultation with the Contractor, Patent Counsel may waive the 
right of prepublication review.
    (s) Forfeiture of rights in unreported subject inventions.
    (1) The Contractor shall forfeit and assign to the Government, at 
the request of the Secretary of Energy or designee, all rights in any 
subject invention which the Contractor fails to report to Patent Counsel 
within six months after the time the Contractor:
    (i) Files or causes to be filed a United States or foreign patent 
application thereon; or
    (ii) Submits the final report required by paragraph (e)(2)(ii) of 
this clause, whichever is later.
    (2) However, the Contractor shall not forfeit rights in a subject 
invention if, within the time specified in paragraph (m)(1) of this 
clause, the Contractor:
    (i) Prepares a written decision based upon a review of the record 
that the invention was neither conceived nor first actually reduced to 
practice in the course of or under the contract and delivers the 
decision to Patent Counsel, with a copy to the Contracting Officer; or
    (ii) Contending that the subject invention is not a subject 
invention, the Contractor nevertheless discloses the subject invention 
and all facts pertinent to this contention to the Patent Counsel, with a 
copy to the Contracting Officer, or
    (iii) Establishes that the failure to disclose did not result from 
the Contractor's fault or negligence.
    (3) Pending written assignment of the patent application and patents 
on a subject invention determined by the Contracting Officer to be 
forfeited (such determination to be a Final Decision under the Disputes 
clause of this contract), the Contractor shall be deemed to hold the 
invention and the patent applications and patents pertaining thereto in 
trust for the Government. The forfeiture provision of this paragraph 
shall be in addition to and shall not supersede any other rights and 
remedies which the Government may have with respect to subject 
inventions.



Sec. 784.13  Effective dates.

    Waivers shall be effective on the following dates:
    (a) For advance waivers of identified inventions, i.e., inventions 
conceived prior to the effective date of the contract, on the effective 
date of the contract, even though the advance waiver may have been 
requested after that date;
    (b) For identified inventions under advance waivers, i.e., 
inventions conceived or first actually reduced to practice after the 
effective date of the contract, on the date the invention is reported 
with the election to retain rights as to that invention; and
    (c) For waivers of identified inventions (other than under an 
advance waiver), on the date of the letter from Patent Counsel notifying 
the requestor that the waiver has been granted.

[[Page 477]]



PART 800_LOANS FOR BID OR PROPOSAL PREPARATION BY MINORITY BUSINESS ENTERPRISES SEEKING DOE CONTRACTS AND ASSISTANCE--Table of Contents



                            Subpart A_General

Sec.
800.001 Purpose.
800.002 Program management.
800.003 Definitions.
800.004 Eligibility.

           Subpart B_Loan Solicitation, Application and Review

800.100 Solicitation of applications.
800.101 Application requirements.
800.102 Review by Application Evaluation Panel.
800.103 Review by Application Approving Official.

                             Subpart C_Loans

800.200 Maximum loan; allowable costs.
800.201 Findings.
800.202 Loan terms and conditions.
800.203 Loan limits.
800.204 Deviations.

                      Subpart D_Loan Administration

800.300 Loan servicing.
800.301 Monitoring.
800.302 Loan limitation.
800.303 Assignment or transfer of loan.
800.304 Default.
800.305 Disclosure.
800.306 Noninterference with other laws.
800.307 Appeals.

    Authority: Sec. 211(e) of the Department of Energy (DOE) 
Organization Act, Pub. L. 95-91, Title II, as amended by Pub. L. 95-619, 
Title VI, sec. 641, Nov. 9, 1978, 92 Stat. 3284 (42 U.S.C. 7141).

    Source: 46 FR 44689, Sept. 4, 1981, unless otherwise noted.



                            Subpart A_General



Sec. 800.001  Purpose.

    The purpose of this regulation is to set forth policies and 
procedures for the award and administration of loans to minority 
business enterprises. The loans are to assist such enterprises in 
participating fully in research, development, demonstration and contract 
activities of the Department of Energy. The loans are to defray a 
percentage of the cost of obtaining DOE contracts and other agreements, 
including procurements, cooperative agreements, grants, loans and loan 
guarantees; of obtaining subcontracts with DOE operating contractors; 
and of obtaining contracts with first-tier subcontractors of DOE 
operating contractors in furtherance of the research, development, 
demonstration or other contract activities of DOE. Issuance of loans 
under this regulation is limited to the extent funds are provided in 
advance in appropriation acts. This regulation implements the authority 
for such loans in section 211(e) of the Department of Energy (DOE) 
Organization Act, Public Law 95-619, title VI, section 641, November 9, 
1978, 92 Stat. 3284 (42 U.S.C.A. 7141).

[48 FR 17574, Apr. 25, 1983]



Sec. 800.002  Program management.

    Program management responsibility for financial assistance awarded 
under this regulation has been assigned to the Office of Minority 
Economic Impact.



Sec. 800.003  Definitions.

    For the purpose of this regulation:
    Act means the DOE Organization Act, Public Law 95-91, title II, as 
amended by the National Energy Conservation Policy Act, Public Law 95-
619, title VI, section 641.
    Applicant means a minority business enterprise which is seeking a 
loan under this regulation.
    Application Approving Official means the Director of the Office of 
Minority Economic Impact.
    Application Evaluation Panel (also referred to as the Panel) means a 
team of Federal employees appointed by the Application Approving 
Official to evaluate loan applications and make approval or disapproval 
recommendations regarding such applications.
    Borrower means an applicant who enters into a loan agreement with 
DOE.
    Contracting Officer means the DOE official warranted and authorized 
to contractually bind the Department of Energy and execute written 
agreements that are binding on the Department.
    Costs of a bid or proposal means the cost of preparing, submitting 
and supporting a bid or proposal, whether solicited or not, for a DOE 
contract or

[[Page 478]]

other agreement such as a procurement contract, grant, cooperative 
agreement, loan or loan guarantee; or a subcontract with a DOE operating 
contractor; or a contract with a first-tier subcontractor of a DOE 
operating contractor in furtherance of the research, development, 
demonstration or other contract activities of DOE.
    Default means the actual failure by the borrower to make payment of 
principal or interest in accordance with the terms and conditions of a 
loan issued under this regulation, or the failure of the borrower to 
meet any other requirement specified as a default condition in the loan 
agreement.
    Director means the Director of the Office of Minority Economic 
Impact (OMEI).
    Loan, in reference to a loan made pursuant to the regulation, means 
a transaction in which a contractual instrument (``loan agreement'') is 
executed between the United States, as lender, acting through the 
Secretary of Energy, and a borrower. The instrument must obligate the 
United States to provide the borrower with a specified amount(s) of 
United States funds for a specified period of time and must obligate the 
borrower to use the moneys to bid for and attempt to obtain contracts 
and other agreements relating to DOE research, development, 
demonstration and contract activities, and to repay the moneys at a 
specified time at an agreed rate of interest. The words `loan', `loan 
agreement' and `transaction' include (where the context does not require 
otherwise) the terms and conditions of related documents, such as the 
borrower's note or bond or other evidence of, or security for, the 
borrower's indebtedness.
    Minority Business Enterprise means a firm including a sole 
proprietorship, corporation, association, or partnership which is at 
least 50 percent owned or controlled by a member of a minority or group 
of members of a minority. For the purpose of this definition, `control' 
means direct or indirect possession of the power to direct, or cause the 
direction of, management and policies, whether through the ownership of 
voting securities, by contract or otherwise. An individual who is a 
citizen of the United States and who is a Negro, Puerto Rican, American 
Indian, Eskimo, Oriental, or Aleut, or is a Spanish speaking individual 
of Spanish descent, is a member of a ``minority'' as used in this 
regulation.
    Operating Contractors means contractors under contracts having one 
of the following purposes, in accordance with the provisions of Sec. 
9.50.001(a)(1) of the DOE procurement regulations (title 41 CFR part 9-
50):
    (a) DOE prime contracts for the management of Federal Government-
owned laboratories, production plants, and research facilities located 
on Federal Government-owned or Federal Government-leased sites, where 
the programs being conducted are considered of a long-term, continuing 
nature; or
    (b) DOE prime contracts for the operation of Federal Government-
owned facilities located on contractor-owned or leased sites where the 
programs being conducted are of a long-term, continuing nature. An 
example of this category would be those contracts with universities for 
the operation of Federal Government-owned facilities, for the purpose of 
conducting long-term basic research programs.
    (c) Other contracts performed on sites owned by the Federal 
Government when so designated by the appropriate procurement official.
    Secretary means the Secretary of the Department of Energy or his 
delegate.

[46 FR 44689, Sept. 4, 1981, as amended at 48 FR 17574, Apr. 25, 1983]



Sec. 800.004  Eligibility.

    In order to be eligible for a loan, an applicant must be a minority 
business enterprise as defined in Sec. 800.003.



           Subpart B_Loan Solicitation, Application and Review



Sec. 800.100  Solicitation of applications.

    The Secretary will periodically issue an announcement soliciting 
applications under this regulation. The announcement will be published 
in the Federal Register, synopsized in the Commerce Business Daily, and 
circulated to minority trade associations and organizations and to the 
Minority Business Development Agency and Small

[[Page 479]]

Business Administration. The announcement will indicate funds 
availability, eligibility requirements, application instructions, 
interest rates, maturities and other key loan terms and any applicable 
restrictions. In such solicitations, DOE shall further indicate that, in 
the case of applications for loans relating to bids or proposals for 
contracts with first-tier subcontractors of DOE operating contractors, 
information necessary to substantiate such applications may be 
unavailable to DOE from such subcontractors. If the substantiating 
information is not made available to DOE in a timely manner, the 
application may be rejected.

[46 FR 44689, Sept. 4, 1981, as amended at 48 FR 17574, Apr. 25, 1983]



Sec. 800.101  Application requirements.

    (a) Applications for loans shall be filed, one original and three 
copies with: Department of Energy, Washington, DC 20585, Attention: 
Announcement No. DE-PS60-MI.
    (b) An application for a loan under this regulation must include the 
following information. Items described in paragraphs (b)(1) through (7) 
of this section may be submitted for preliminary review in advance of a 
specific loan request but must be updated at time of loan request to 
reflect substantial changes.
    (1) Applicant's name and address, with a description of the kind and 
size of its business, its business experience and its history as a 
minority business enterprise.
    (2) Financial statements of applicant and its principals, including 
source of revenue and balance sheets for the current year and, as to 
applicant, for the two preceding years of applicant's existence as a 
business entity. The Secretary may require applicant to provide 
certification by a public accountant, or other certification acceptable 
to the Secretary.
    (3) A description of any other Federal financial backing (direct 
loans, guaranteed loans, grants, etc.) applied for or obtained by the 
applicant within the previous five years, or expected to be applied for.
    (4) A description of applicant's management structure, with list of 
applicant's key persons with their responsibilities and qualifications.
    (i) In the case of a specific loan request this list should include 
any contractor or consultant whose services are proposed in connection 
with the bid or proposal for which the loan is sought.
    (5) Affidavit(s) of eligibility (see Sec. 800.004).
    (6) Documentation as to applicant's authority to undertake the 
activities contemplated by the application. Such documentation shall 
take substantially the following form:
    (i) If the applicant is a corporation, a copy of the charter or 
certificate and articles of incorporation, with any amendments, duly 
certified by the Secretary of State of the State where organized, and a 
copy of the by-laws. There shall also be included a copy of all minutes, 
resolutions of stockholders or directors or other representatives of the 
applicant, properly attested, authorizing the filing of the application.
    (ii) If the applicant is an association, a verified copy of its 
articles of association, if any, with an attested copy of the resolution 
of its governing board, if any, authorizing the filing of the 
application.
    (iii) If the applicant is a business trust, a verified copy of the 
trust instrument and an attested copy of the resolution or other 
authority under which the application is made.
    (iv) If the applicant is a joint stock company, a verified copy of 
the articles of association and of the authorizing resolution.
    (v) If the application is made on behalf of a partnership, a copy of 
the partnership agreement, if any; if on behalf of a limited 
partnership, a duly certified copy, also, of the certificate of limited 
partnership, if such certificate is required to be obtained under state 
law governing such limited partnership.
    (7) Credit references.
    (8) Information on the award to be sought through the bid or 
proposal, as follows:
    (i) Title, and whether in response to a solicitation or unsolicited.
    (ii) Brief description of work to be performed.

[[Page 480]]

    (iii) Sponsoring DOE office, including solicitation number, if any.
    (iv) If an unsolicited proposal is planned, the loan application 
shall indicate the appropriate DOE program personnel to be consulted as 
to whether there is potential for the proposal to be supported.
    (v) Schedule for preparation and submission of the bid or proposal.
    (9) Itemized cost estimates (and whether yet incurred).
    (10) The required loan amount, not to exceed 75 percent of total bid 
or proposal costs, in accordance with Sec. 800.200 on allowable costs.
    (11) Requested loan maturity, in accordance with Sec. 
800.202(a)(3).
    (12) How applicant will finance performance of work under a 
successful bid or proposal.
    (13) Such other information as the Application Approving Official 
may deem necessary for evaluation in accordance with Sec. 800.103 and 
for compliance with the provisions of this regulation.
    (14) The application shall be signed by the applicant or on behalf 
of the applicant by an authorized representative. Verification may be by 
affidavit of an authorized representative of an applicant; attestation 
shall be by the authorized officer of an applicant.

    Note: Title 18 United States Code, section 1001 provides criminal 
penalties for fraud and intentional false statements in information 
submitted in such an application.



Sec. 800.102  Review by Application Evaluation Panel.

    (a) Applications for loans under this regulation shall be reviewed 
by an Application Evaluation Panel, which shall be appointed by the 
Application Approving Official. The Panel shall include, at a minimum, a 
representative of the Office of Minority Economic Impact, the 
contracting officer and a representative of the Office of the 
Controller.
    (b) Panel review shall be conducted pursuant to paragraph (c) or (d) 
of this section, as applicable, to evaluate, to clarify and to develop 
information contained in the application and such other information as 
the Application Approving Official or the Panel may request.
    (1) The Panel shall give priority to applications relating to a 
competitive solicitation, because of time limits on such solicitations. 
The Panel may defer action a maximum of five days after a solicitation 
has been announced in the Commerce Business Daily to provide all 
interested applicants an opportunity to apply.
    (2) Initial screening will be in the order applications are 
received, but time required to process an application may vary from case 
to case.
    (c) Panel review of specific loan requests. (1) If an application 
contains a specific loan request, and complies with Sec. 800.101, the 
Panel shall arrange for risk analysis, independent of any such analysis 
submitted by or on behalf of the applicant. Risk analysis shall be 
directed both to the loan request and to applicant's prospective 
performance of work pursuant to the bid or proposal.
    (2) The Panel shall evaluate the loan request in light of the risk 
analysis, and shall give its conclusions in writing to the Application 
Approving Official, with respect to the following and to such other 
considerations as that official may direct:
    (i) Applicant's eligibility as a minority business enterprise.
    (ii) Compliance with the application requirements of Sec. 800.101.
    (iii) Compliance with Sec. 800.200 on allowable costs.
    (iv) Applicant's financial ability to make the bid or proposal 
without the loan.
    (v) Applicant's contribution of, or ability to contribute, the 25% 
minimum share of allowable costs, or more.
    (vi) Applicant's ability to prepare an adequate bid or proposal, if 
the loan is made.
    (vii) Possibility of award to applicant pursuant to its bid or 
proposal.

    Note: Normally, not more than three loans will be approved for the 
same competitive award.

    (viii) Applicant's ability to perform pursuant to the bid or 
proposal.
    (ix) Likelihood that applicant will repay the requested loan, 
regardless of success of applicant's bid or proposal.
    (x) Optimal use of available program funds.

[[Page 481]]

    (xi) The Panel's recommendation.
    (d) Panel review of other applications. If the application was 
submitted without a specific loan request, the Panel shall review the 
application in accordance with paragraph (b) of this section with the 
limited purpose of determining whether the applicant has complied with 
Sec. 800.101, except as to matters determinable only with respect to a 
future specific loan request, and shall inform the Application Approving 
Official in writing as to its determinations.



Sec. 800.103  Review by Application Approving Official.

    (a) The Application Approving Official shall consider the results of 
the Panel's review under section 102 (c) or (d), and such other 
information as the Application Approving Official determines to be 
relevant pursuant to the provisions of this regulation, and shall either 
approve or disapprove the application, giving it priority in accordance 
with the provisions of Sec. 800.102(b).
    (b) The Application Approving Official shall authorize a contracting 
officer to notify the applicant of approval or disapproval.
    (c) An applicant whose application has been rejected will be 
informed, on request, of the reason for rejection. Rejection is not a 
bar to submission of an appropriately revised application.



                             Subpart C_Loans



Sec. 800.200  Maximum loan; allowable costs.

    (a) A loan under this regulation shall not exceed 75 percent of 
allowable costs of a bid or proposal to obtain a DOE contract or other 
agreement (such as a procurement contract, cooperative agreement, grant, 
loan or loan guarantee), or a subcontract with a DOE operating 
contractor, or a contract with a first-tier subcontractor of a DOE 
operating contractor in furtherance of the research, development, 
demonstration or other contract activities of DOE.
    (b) To be allowable, costs must, in DOE's judgment:
    (1) Be consistent with the bidding cost principles of the Federal 
Procurement Regulation (41 CFR Ch. 1, 1-15.205-3) and DOE Procurement 
Regulation (41 CFR Ch. 9, 9-15.205-3); and;
    (2) Be necessary, reasonable and customary for the bid or proposal 
contemplated by the application; and
    (3) Be incurred, or expected to be incurred, by the applicant.
    (c) Costs which are, in general, allowable, if consistent with 
paragraph (b) of this section include, but are not limited to:
    (1) Bid bond premiums.
    (2) Financial, accounting, legal, engineering and other 
professional, consulting or similar fees and service charges.
    (3) Printing and reproduction costs.
    (4) Travel and transportation costs.
    (5) Costs of the loan application under this rule.
    (d) Costs that are not considered as allowable costs include the 
following:
    (1) Fees and commissions charged to the applicant, including 
finder's fees, for obtaining Federal funds.
    (2) Expenses, which, in DOE's judgment, have primarily an 
application broader than the specific loan request.
    (3) Costs which, in DOE's judgment, fail to conform to paragraph (b) 
of this section.

[46 FR 44689, Sept. 4, 1981, as amended at 48 FR 17574, Apr. 25, 1983]



Sec. 800.201  Findings.

    A loan shall issue under this regulation only if the Secretary, 
having reviewed the action of the Application Approving Official, and 
having considered such other information as the Secretary may deem 
pertinent, has made all the findings that follow:
    (a) That the applicant is a minority business enterprise.
    (b) That the loan will assist the enterprise to participate in the 
research, development, demonstration or contract activities of the 
Department of Energy by providing funds needed by applicant for bid or 
proposal purposes.
    (c) That, by terms of the loan, applicant's use of the funds will be 
limited to bidding for and obtaining a contract or other agreement with 
the Department of Energy, a subcontract with a DOE operating contractor, 
or a contract with a first-tier subcontractor of a DOE operating 
contractor in furtherance of the research, development,

[[Page 482]]

demonstration or other contract activities of DOE.
    (d) That the funds to be loaned will not exceed 75% of applicant's 
costs in bidding for and obtaining the contract or agreement.
    (e) That the rate of interest on the loan has been determined in 
consultation with the Secretary of the Treasury.
    (f) That there is a reasonable prospect that the applicant will make 
the bid or proposal which is the purpose of the loan, will perform 
according to its bid or proposal, and will repay the loan according to 
the terms thereof, regardless of the success of its bid or proposal.
    (g) That the terms and conditions of the loan are acceptable to the 
Secretary and comply with this regulation and with section 211(e) of the 
Department of Energy Organization Act.

[46 FR 44689, Sept. 4, 1981, as amended at 48 FR 17574, Apr. 25, 1983]



Sec. 800.202  Loan terms and conditions.

    (a) The loan shall be based upon a loan agreement and the borrower's 
separate promissory note for the proceeds of the loan, including 
interest. The agreement and note shall be executed in writing between 
the borrower and the Secretary. The contracting officer shall execute 
the loan agreement on behalf of the Secretary. The loan agreement and 
the promissory note shall provide as follows, either at full length or 
by incorporation by reference to terms of the other of the two 
documents.
    (1) The borrower agrees to repay the loan of funds provided by the 
Secretary.
    (2) The interest rate on the loan is as established in consultation 
with the Secretary of the Treasury, taking into consideration the 
current average market yields of outstanding marketable obligations of 
the United States having maturities comparable to the loan.
    (3) The loan shall be repaid over a maximum period as follows, in 
equal monthly installments of principal and interest, unless a different 
frequency of installments is specified by the Secretary:

------------------------------------------------------------------------
                Loan value                      Maximum repayment \1\
------------------------------------------------------------------------
$0--$5,000................................  3 years 3 months.
$5,000--$25,000...........................  5 years 3 months.
Excess of $25,000.........................  8 years 3 months.
------------------------------------------------------------------------
\1\ Maximum repayment period from date of initial disbursement.


Repayment of principal and interest shall begin within 90 days following 
the initial loan disbursement or such longer period as may be acceptable 
to the Secretary. Installments shall be applied to accrued interest 
first and then to repayment of principal. Past due installments shall 
accrue interest at the quarterly current-value-of-funds-rate specified 
by the Treasury for overdue accounts. Prepayments may be made at any 
time without penalty.
    (4) The borrower shall have appropriate opportunities, as specified 
in the loan agreement, to cure any default, failure, or breach of any of 
the covenants, conditions and obligations undertaken by the borrower 
pursuant to the provisions of the loan agreement.
    (5) Loans of $10,000 or less will be disbursed in a single 
disbursement. Disbursement of loans larger than $10,000 shall be per 
schedule and documentation specified by the Secretary.
    (6) The loan may be used by the borrower to defray as much as, but 
no more than, 75 percent of the cost of the bid or proposal within the 
limitations specified in Sec. 800.200, on allowable costs. Costs 
incurred by the borrower prior to the effective date of the loan 
agreement, and allowable under Sec. 800.200, may be credited toward the 
borrower's share of costs if, in DOE's judgment, they were primarily 
related to the bid or proposal, but shall not be reimbursed from the 
loan.
    (7) The borrower shall make periodic reports regarding the bid or 
proposal.
    (8) The borrower shall maintain good standing under Federal, State 
and local laws and regulations applicable to the conduct of its 
business, including current payment of all taxes, fees and other charges 
and all requisite licenses and other governmental authorization 
necessary for the continued operation of the business throughout the 
term of the loan.
    (9) The borrower shall remain a minority business enterprise 
throughout the term of the loan.

[[Page 483]]

    (10) The borrower shall return funds disbursed, but not required 
together with accrued interest thereon, to DOE, or to the servicing 
agent, if applicable, when its bid or proposal is ready for submission. 
The return of unrequired funds shall be by check separate from any 
payment of interest or principal, shall be identified by the borrower as 
a return of unrequired funds, and shall be accompanied by the borrower's 
certification that so much of the loan as has been disbursed to the 
borrower and not returned has been, or will be, expended by the borrower 
for costs allowable under Sec. 800.200.
    (11) Such other provisions as the Secretary deems appropriate.
    (b) The loan agreement shall also provide for loan servicing and 
monitoring in accordance with Sec. 800.300 and Sec. 800.301, loan 
limitation in accordance with Sec. 800.302, assignment and transfer in 
accordance with Sec. 800.303, default in accordance with Sec. 800.304 
and appeals in accordance with Sec. 800.307.
    (c) The Secretary may require, as preconditions to disbursement, 
that the borrower have specified amounts of working capital (including 
amounts derived from Federal financial assistance) and maintain 
specified financial ratios, where in the Secretary's judgment 
satisfaction of such preconditions is necessary to assure the borrower's 
ability to make and perform the contract, agreement or subcontract 
according to the bid or proposal, or is otherwise necessary to protect 
the interests of the United States.
    (d) The Secretary may require pledges, personal guarantees and other 
collateral security, and the maintenance of insurance on the borrower's 
assets and principals, in amounts and on terms appropriate in the 
Secretary's judgment, to protect the interests of the United States.



Sec. 800.203  Loan limits.

    The Secretary shall not make a loan in excess of $50,000, or make 
aggregate loans to the same minority business enterprise, including its 
affiliates, in any Federal fiscal year in excess of $100,000. In 
addition, the Secretary shall not increase a loan to an amount which 
would cause the limits set forth in the previous sentence to be 
exceeded. Nothing in this regulation shall be interpreted to restrict 
the Secretary, in making the various determinations provided for in this 
regulation, from taking into account considerations relating to the 
Office of Minority Economic Impact loan program as a whole.



Sec. 800.204  Deviations.

    (a) To the extent consistent with the Act, relevant appropriations 
acts, and other applicable statutes, DOE may deviate on an individual 
application basis from the requirements of this regulation upon a 
finding by the Secretary that such deviation is necessary or appropriate 
in the individual case for the accomplishment of program objectives.
    (b) The contracting officer may, subject to written agreement by 
other necessary parties, modify or amend the terms and conditions of a 
loan provided that such modification or amendment shall be consistent 
with this regulation.



                      Subpart D_Loan Administration



Sec. 800.300  Loan servicing.

    (a) Servicing of a loan under this regulation may be performed by 
DOE, by another Federal agency, or by a servicing agent (commercial 
bank, broker, or other financial institution or entity) having the 
capability, and legally qualified, to service the loan consistently with 
the requirements of this regulation, which contracts with DOE to act as 
servicing agent. In determining the capability of a prospective 
servicing agent, DOE shall give due consideration to the experience of 
the agent in providing financial services to minority business 
enterprises.
    (b) If the servicing of the loan is by contract or other agreement, 
such contract or other agreement shall provide that the loan shall be 
serviced in accordance with this regulation and with the terms and 
conditions of the loan, under a standard of performance that a 
reasonable and prudent lender would require as to its own similar loan. 
Servicing responsibilities shall include, but not necessarily be limited 
to, the following:
    (1) Loan disbursements as set forth in the loan agreement.

[[Page 484]]

    (2) Collection of principal and interest payments on a monthly 
basis.
    (3) Maintenance of records on loan accounts.
    (4) Notification of the Secretary, without delay, as to the 
following:
    (i) That the initial disbursement or loan drawdown is ready to be 
made, together with evidence from the borrower that the bid or proposal 
preparation has begun or is about to begin.
    (ii) The date and amount of each subsequent disbursement under the 
loan.
    (iii) Any nonreceipt of payment within 10 days after the date 
specified for payment, together with evidence of appropriate 
notification to the borrower.
    (iv) Any known failure by the borrower to comply with the terms and 
conditions of the loan agreement.
    (v) Evidence, if any, that the borrower is likely to default on any 
condition set forth in the loan agreement or may be unable to make the 
next scheduled payment of principal or interest.
    (5) Submittal to DOE of periodic (semi-annual or annual) reports on 
the status and conditions of the loan and of the borrower.



Sec. 800.301  Monitoring.

    The Secretary shall have the right to audit any and all costs of the 
bid or proposal for which the loan is sought or made and to exclude or 
reduce the includible amount of any cost in accordance with Sec. 
800.200. Auditors who are employees of the United States Government, who 
are designated by the Secretary of Energy or by the Comptroller General 
of the United States, shall have access to, and the right to examine, 
any directly pertinent documents and records of an applicant or borrower 
at reasonable times under reasonable circumstances. The servicing agent, 
if any, shall make information regarding the loan available to the 
Secretary of Energy and Comptroller General to the extent lawful and 
within its ability. The Secretary may direct the applicant or borrower 
to submit to an audit by public accountant or equivalent acceptable to 
the Secretary.



Sec. 800.302  Loan limitation.

    The Secretary may limit the loan by written notice to the borrower 
to those amounts, if any, already disbursed under the loan, if the 
Secretary has determined that the borower has failed to comply with a 
material term or condition set forth in the loan agreement.



Sec. 800.303  Assignment or transfer of loan.

    Assignment or transfer of the loan and obligations thereunder may be 
made only with the prior written consent of the Secretary.



Sec. 800.304  Default.

    (a) In the event that the borrower fails to perform the terms and 
conditions of the loan, the borrower shall be in default and the 
Secretary shall have the right, at the Secretary's option, to accelerate 
the indebtedness and demand full payment of all principal and interest 
amounts outstanding under the loan.
    (b) No failure on the part of the Secretary to make demand at any 
time shall constitute a waiver of the rights held by the Secretary.
    (c) Upon demand by the Secretary, the borrower shall have a period 
of not more than 30 days from the date of receipt of the Secretary's 
demand to make payment in full.
    (d) In the event that the failure on the part of the borrower to 
perform the terms and conditions of the loan does not constitute an 
intentional act, but is brought about as a result of circumstances 
largely beyond the control of the borrower, or is deemed by, the 
Secretary to be insubstantial, the Secretary may elect, at the 
Secretary's option, to defer such performance and/or restructure the 
repayment required by the loan agreement in any mutually acceptable 
manner.
    (e) Should the borrower fail to pay after demand as provided in 
paragraph (c) of this section, and no deferral or restructuring is 
agreed to by the Secretary as provided in paragraph (d) of this section, 
the Secretary shall undertake collection in accordance with the terms of 
the loan agreement and the applicable law.



Sec. 800.305  Disclosure.

    Information received from an applicant by DOE may be available to 
the public subject to the provision of 5

[[Page 485]]

U.S.C. 552, 18 U.S.C. 1905 and 10 CFR part 1004; provided that:
    (a) Subject to the requirements of law, information such as trade 
secrets, commercial and financial information, and other information 
concerning the minority business enterprise that the enterprise submits 
to DOE in writing, in an application, or at other times throughout the 
duration of the loan on a privileged or confidential basis, will not be 
disclosed without prior notice to submitter in accordance with DOE 
regulations concerning public disclosure of information. Any submitter 
asserting that the information is privileged or confidential should 
appropriately identify and mark such information.
    (b) Upon a showing satisfactory to the Secretary that any 
information or portion thereof obtained under this regulation would, if 
made public, divulge trade secrets or other proprietary information of 
the minority business enterprise, the Secretary may not disclose such 
information.
    (c) This section shall not be construed as authority to withhold 
information from Congress or from any committee of Congress upon request 
of the Chairman.



Sec. 800.306  Noninterference with other laws.

    Nothing in this regulation shall be construed to modify requirements 
imposed on the borrower by Federal, State and local government agencies 
in connection with permits, licenses, or other authorizations to conduct 
or finance its business.



Sec. 800.307  Appeals.

    Any dispute concerning questions of fact arising under the loan 
agreement shall be decided in writing by the contracting officer. The 
borrower may request the contracting officer to reconsider any such 
decision, which reconsideration shall be promptly undertaken. If not 
satisfied with the contracting officer's final decision, the borrower, 
upon receipt of such written decision, may appeal the decision within 60 
days in writing to the Chairman, Financial Assistance Appeals Board 
(FAAB), Department of Energy, Washington, DC 20585. The Board shall 
proceed in accordance with the Department of Energy's rules and 
regulations for such purpose. The decision of the Board with respect to 
such appeals shall be the final decision of the Secretary.



PART 810_ASSISTANCE TO FOREIGN ATOMIC ENERGY ACTIVITIES--Table of Contents



Sec.
810.1 Purpose.
810.2 Scope.
810.3 Definitions.
810.4 Communications.
810.5 Interpretations.
810.6 Authorization requirement.
810.7 Generally authorized activities.
810.8 Activities requiring specific authorization.
810.9 Restrictions on general and specific authorization.
810.10 Grant of specific authorization.
810.11 Revocation, suspension, or modification of authorization.
810.12 Information required in an application for specific 
          authorization.
810.13 Reports.
810.14 Additional information.
810.15 Violations.
810.16 Effective date and savings clause.

    Authority: Secs. 57, 127, 128, 129, 161, and 223, Atomic Energy Act 
of 1954, as amended by the Nuclear Non-Proliferation Act of 1978, Pub. 
L. 95-242, 68 Stat. 932, 948, 950, 958, 92 Stat. 126, 136, 137, 138 (42 
U.S.C. 2077, 2156, 2157, 2158, 2201, 2273); Sec. 104 of the Energy 
Reorganization Act of 1974, Pub. L. 93-438; Sec. 301, Department of 
Energy Organization Act, Pub. L. 95-91.

    Source: 51 FR 44574, Dec. 10, 1986, unless otherwise noted.



Sec. 810.1  Purpose.

    These regulations implement section 57b of the Atomic Energy Act 
which empowers the Secretary of Energy to authorize U.S. persons to 
engage directly or indirectly in the production of special nuclear 
material outside the United States. Their purpose is to:
    (a) Indicate activities which have been generally authorized by the 
Secretary of Energy and thus require no further authorization;
    (b) Indicate activities which require specific authorization by the 
Secretary and explain how to request authorization; and
    (c) Explain reporting requirements for various activities.

[[Page 486]]



Sec. 810.2  Scope.

    10 CFR part 810:
    (a) Applies to all persons subject to the jurisdiction of the United 
States who engage directly or indirectly in the production of special 
nuclear material outside the United States.
    (b) Applies to activities conducted either in the United States or 
abroad by such persons or by licensees, contractors or subsidiaries 
under their direction, supervision, responsibility or control.
    (c) Applies, but is not limited to, activities involving nuclear 
reactors and other nuclear fuel cycle facilities for the following: 
fluoride or nitrate conversion; isotope separation (enrichment); the 
chemical, physical or metallurgical processing, fabricating, or alloying 
of special nuclear material; production of heavy water, zirconium 
(hafnium-free or low-hafnium), nuclear-grade graphite, or reactor-grade 
beryllium; production of reactor-grade uranium dioxide from yellowcake; 
and certain uranium milling activities.
    (d) Does not apply to exports licensed by the Nuclear Regulatory 
Commission.



Sec. 810.3  Definitions.

    As used in part 810:
    Accelerator-driven subcritical assembly system is a system 
comprising a ``subcritical assembly'' and a ``production accelerator'' 
and which is designed or used for the purpose of producing or processing 
special nuclear material (SNM) or which a U.S. provider of assistance 
knows or has reason to know will be used for the production or 
processing of SNM. In such a system, the ``production accelerator'' 
provides a source of neutrons used to effect SNM production in the 
``subcritical assembly.''
    Agreement for cooperation means an agreement with another nation or 
group of nations concluded under sections 123 or 124 of the Atomic 
Energy Act.
    Atomic Energy Act means the Atomic Energy Act of 1954, as amended.
    Classified information means National Security Information 
classified under Executive Order 12356 or any superseding order, or 
Restricted Data classified under the Atomic Energy Act.
    General authorization means an authorization granted by the 
Secretary of Energy under section 57b(2) of the Atomic Energy Act to 
provide certain assistance to foreign atomic energy activities and which 
is effective without a specific request to the Secretary or the issuance 
of an authorization to a particular person.
    IAEA means the International Atomic Energy Agency.
    Non-nuclear-weapon state is a country not recognized as a nuclear-
weapon state by the NPT (i.e., states other than the United States, 
Russia, the United Kingdom, France, and China).
    NNPA means the Nuclear Non-Proliferation Act of 1978.
    NPT means the Treaty on the Non-Proliferation of Nuclear Weapons.
    Nuclear reactor means an apparatus, other than a nuclear explosive 
device, designed or used to sustain nuclear fission in a self-supporting 
chain reaction.
    Open meeting means a conference, seminar, trade show or other 
gathering that all technically qualified members of the public may 
attend and at which they may make written or other personal record of 
the proceedings, notwithstanding that (1) a reasonable registration fee 
may be charged, or (2) a reasonable numerical limit exists on actual 
attendance.
    Operational safety means the capability of a reactor to be operated 
in a manner that prevents uncontrolled or inadvertent criticality, 
prevents or mitigates uncontrolled release of radioactivity to the 
environment, monitors and limits staff exposure to radiation and 
radioactivity, and protects off-site population from exposure to 
radiation or radioactivity. Operational safety may be enhanced by 
providing expert advice, equipment, instrumentation, technology, 
software, services, analyses, procedures, training, or other assistance 
that improves the capability of the reactor to be operated in such a 
manner.
    Person means (1) any individual, corporation, partnership, firm, 
association, trust, estate, public or private institution, group, 
Government agency other than the Department of Energy, any State or 
political entity within a

[[Page 487]]

State; and (2) any legal successor, representative, agent or agency of 
the foregoing. Persons under U.S. jurisdiction are responsible for their 
foreign licensees, contractors or subsidiaries to the extent that the 
former have control over the activities of the latter.
    Production accelerator is a particle accelerator designed and/or 
intended to be used, with a subcritical assembly, for the production or 
processing of SNM or which a U.S. provider of assistance knows or has 
reason to know will be used for the production or processing of SNM.
    Production reactor means a nuclear reactor specially designed or 
used primarily for the production of plutonium or uranium-233.
    Public information means: (1) Information available in periodicals, 
books or other print or electronic media for distribution to any member 
of the public, or to a community of persons such as those in a 
scientific, engineering, or educational discipline or in a particular 
commercial activity who are interested in a subject matter; (2) 
Information available in public libraries, public reading rooms, public 
document rooms, public archives, or public data banks, or in university 
courses; (3) Information that has been presented at an open meeting (see 
definition of ``open meeting''); (4) Information that has been made 
available internationally without restriction on its further 
dissemination; or (5) Information contained in an application which has 
been filed with the U.S. Patent Office and eligible for foreign filing 
under 35 U.S.C. 184 or which has been made available under 5 U.S.C. 552, 
the Freedom of Information Act. Public information must be available to 
the public prior to or at the same time as it is transmitted to a 
foreign recipient. It does not include any technical embellishment, 
enhancement, explanation or interpretation which in itself is not public 
information, or information subject to sections 147 and 148 of the 
Atomic Energy Act.
    Restricted Data means all data concerning (1) design, manufacture or 
utilization of atomic weapons; (2) the production of special nuclear 
material; or (3) the use of special nuclear material in the production 
of energy, but shall not include data declassified or removed from the 
Restricted Data category pursuant to section 142 of the Atomic Energy 
Act.
    Sensitive nuclear technology means any information (including 
information incorporated in a production or utilization facility or 
important component part thereof) which is not available to the public 
[see definition of ``public information''] which is important to the 
design, construction, fabrication, operation, or maintenance of a 
uranium enrichment or nuclear fuel reprocessing facility or a facility 
for the production of heavy water, but shall not include Restricted Data 
controlled pursuant to Chapter 12 of the Atomic Energy Act. The 
information may take a tangible form such as a model, prototype, 
blueprint, or operation manual or an intangible form such as technical 
services.
    Source Material means: (1) Uranium or thorium, other than special 
nuclear material or (2) ores which contain by weight 0.05 percent or 
more of uranium or thorium, or any combination of these.
    Special nuclear material means (1) plutonium, (2) uranium-233, or 
(3) uranium enriched above 0.711 percent by weight in the isotope 
uranium-235.
    Specific authorization means an authorization granted by the 
Secretary of Energy under section 57b(2) of the Atomic Energy Act to a 
person to provide specified assistance to a foreign atomic energy 
activity in response to an application filed under 10 CFR part 810.
    Subcritical assembly is an apparatus containing source material or 
SNM designed or used to produce a nuclear fission chain reaction that is 
not self-sustaining.
    United States, when used in a geographical sense, includes all 
territories and possessions of the United States.

[51 FR 44574, Dec. 10, 1986, as amended at 58 FR 39638, July 26, 1993; 
65 FR 16126, Mar. 27, 2000]



Sec. 810.4  Communications.

    (a) All communications concerning the regulations in this part 
should be addressed to: U.S. Department of Energy, Washington, DC 20585. 
Attention:

[[Page 488]]

Director, Nuclear Transfer and Supplier Policy Division, NN-43, Office 
of Arms Control and Nonproliferation. Telephone: (202) 586-2331.
    (b) Communications also may be delivered to the Department's 
headquarters at 1000 Independence Avenue, SW., Washington, DC. All 
clearly marked proprietary information will be given the maximum 
protection allowed by law.

[51 FR 44574, Dec. 10, 1986, as amended at 58 FR 39638, July 26, 1993; 
65 FR 16127, Mar. 27, 2000]



Sec. 810.5  Interpretations.

    A person may request the advice of the Director, Nuclear Transfer 
and Supplier Policy Division (NN-43), on whether a proposed activity 
falls outside the scope of this part, is generally authorized under 
Sec. 810.7, or requires specific authorization under Sec. 810.8; 
however, unless authorized by the Secretary of Energy, in writing, no 
interpretation of the regulations in this part other than a written 
interpretation by the General Counsel is binding upon the Department. 
When advice is requested from the Director, Nuclear Transfer and 
Supplier Policy Division, or a binding, written determination is 
requested from the General Counsel, a response normally will be made 
within 30 days and, if this is not feasible, an interim response will 
explain the delay.

[65 FR 16127, Mar. 27, 2000]



Sec. 810.6  Authorization requirement.

    Section 57b of the Atomic Energy Act in pertinent part provides 
that:

    It shall be unlawful for any person to directly or indirectly engage 
in the production of any special nuclear material outside of the United 
States except (1) as specifically authorized under an agreement for 
cooperation made pursuant to section 123, including a specific 
authorization in a subsequent arrangement under section 131 of this Act, 
or (2) upon authorization by the Secretary of Energy after a 
determination that such activity will not be inimical to the interest of 
the United States: Provided, That any such determination by the 
Secretary of Energy shall be made only with the concurrence of the 
Department of State and after consultation with the Arms Control and 
Disarmament Agency, the Nuclear Regulatory Commission, the Department of 
Commerce, and the Department of Defense.



Sec. 810.7  Generally authorized activities.

    In accordance with section 57b(2) of the Atomic Energy Act, the 
Secretary of Energy has determined that the following activities are 
generally authorized, provided no sensitive nuclear technology is 
transferred:
    (a) Furnishing public information as defined in Sec. 810.3;
    (b) Furnishing information or assistance to prevent or correct a 
current or imminent radiological emergency posing a significant danger 
to the health and safety of the off-site population, provided the 
Department of Energy is notified in advance and does not object;
    (c) Furnishing information or assistance, including through 
continuing programs, to enhance the operational safety of an existing 
civilian nuclear power plant in a country listed in Sec. 810.8(a) or to 
prevent, reduce, or correct a danger to the health and safety of the 
off-site population posed by a civilian nuclear power plant in such a 
country; provided the Department of Energy is notified in advance by 
certified mail, return receipt requested, and approves the use of the 
authorization in writing; the Department will notify the applicant of 
the status of the request within 30 days from the date of receipt of the 
notification.
    (d) Implementing the Agreement between the United States of America 
and the International Atomic Energy Agency for the Application of 
Safeguards in the United States;
    (e) Participation in exchange programs approved by the Department of 
State in consultation with the Department of Energy;
    (f) Participation approved by a U.S. Government agency in IAEA 
programs, and activities of IAEA employees whose employment was approved 
by the U.S. Government;
    (g) Participation in open meetings as defined in Sec. 810.3 that 
are sponsored by educational, scientific, or technical organizations or 
institutions;
    (h) Otherwise engaging directly or indirectly in the production of 
SNM outside the United States in ways that:
    (1) Do not involve any of the countries listed in Sec. 810.8(a); 
and

[[Page 489]]

    (2) Do not involve production reactors, accelerator-driven 
subcritical assembly systems, enrichment, reprocessing, fabrication of 
nuclear fuel containing plutonium, production of heavy water, or 
research reactors, or test reactors, as described in Sec. 810.8 (c)(1) 
through (6).

[51 FR 44574, Dec. 10, 1986, as amended at 58 FR 39639, July 26, 1993; 
65 FR 16127, Mar. 27, 2000]



Sec. 810.8  Activities requiring specific authorization.

    Unless generally authorized by Sec. 810.7, a person requires 
specific authorization by the Secretary of Energy before:
    (a) Engaging directly or indirectly in the production of special 
nuclear material in any of the following countries. Countries marked 
with an asterisk (*) are non-nuclear-weapon states that do not have 
full-scope IAEA safeguards agreements in force.

Afghanistan
Albania
Algeria
Andorra*
Angola*
Armenia
Azerbaijan*
Bahrain*
Belarus
Benin*
Botswana*
Burkina Faso*
Burma (Myanmar)
Burundi*
Cambodia*
Cameroon*
Cape Verde*
Central African Republic*
Chad*
China, People's Republic of
Comoros*
Congo* (Zaire)
Cuba*
Djibouti*
Equatorial Guinea*
Eritrea*
Gabon*
Georgia*
Guinea*
Guinea-Bissau*
Haiti*
India*
Iran
Iraq*
Israel*
Kazakhstan
Kenya*
Korea, People's Democratic Republic of*
Kuwait*
Kyrgyzstan*
Laos*
Liberia*
Libya
Macedonia
Mali*
Marshall Islands*
Mauritania*
Micronesia*
Moldova*
Mongolia
Mozambique*
Niger*
Oman*
Pakistan*
Palau*
Qatar*
Russia
Rwanda*
Sao Tome and Principe*
Saudi Arabia*
Seychelles*
Sierra Leone*
Somalia*
Sudan
Syria
Tajikistan*
Tanzania*
Togo*
Turkmenistan*
Uganda*
Ukraine
United Arab Emirates*
Uzbekistan
Vanuatu*
Vietnam
Yemen*
Yugoslavia

    (b) Providing sensitive nuclear technology for an activity in any 
foreign country.
    (c) Engaging in or providing assistance or training in any of the 
following activities with respect to any foreign country.
    (1) Designing production reactors, accelerator-driven subcritical 
assembly systems, or facilities for the separation of isotopes of source 
or SNM (enrichment), chemical processing of irradiated SNM 
(reprocessing), fabrication of nuclear fuel containing plutonium, or the 
production of heavy water;
    (2) Constructing, fabricating, operating, or maintaining such 
reactors, accelerator-driven subcritical assembly systems, or 
facilities;
    (3) Designing, constructing, fabricating, operating or maintaining 
components especially designed, modified or adapted for use in such 
reactors, accelerator-driven subcritical assembly systems, or 
facilities;

[[Page 490]]

    (4) Designing, constructing, fabricating, operating or maintaining 
major critical components for use in such reactors, accelerator-driven 
subcritical assembly systems, or production-scale facilities; or
    (5) Designing, constructing, fabricating, operating, or maintaining 
research reactors, test reactors or subcritical assemblies capable of 
continuous operation above five megawatts thermal.
    (6) Training in the activities of paragraphs (c)(1) through (5) of 
this section.

[65 FR 16127, Mar. 27, 2000; 65 FR 26278, May 5, 2000]



Sec. 810.9  Restrictions on general and specific authorization.

    A general or specific authorization granted by the Secretary of 
Energy under these regulations:
    (a) Is limited to activities involving only unclassified information 
and does not permit furnishing Restricted Data or other classified 
information.
    (b) Does not relieve a person from complying with relevant laws or 
the regulations of other Government agencies applicable to exports;
    (c) Does not authorize a person to engage in any activity when the 
person knows or has reason to know that the activity is intended to 
provide assistance in designing, developing, fabricating or testing a 
nuclear explosive device.



Sec. 810.10  Grant of specific authorization.

    (a) Any person proposing to provide assistance for which Sec. 810.8 
indicates specific authorization is required may apply for the 
authorization to the U.S. Department of Energy, National Nuclear 
Security Administration, Washington, DC 20585, Attention: Director, 
Nuclear Transfer and Supplier Policy Division, NN-43, Office of Arms 
Control and Nonproliferation.
    (b) The Secretary of Energy will approve an application for specific 
authorization if he determines, with the concurrence of the Department 
of State and after consultation with the Arms Control and Disarmament 
Agency, the Nuclear Regulatory Commission, the Department of Commerce, 
and the Department of Defense, that the activity will not be inimical to 
the interest of the United States. In making this determination, the 
Secretary will take into account:
    (1) Whether the United States has an agreement for nuclear 
cooperation with the nation or group of nations involved;
    (2) Whether the country involved is a party to the NPT, or a country 
for which the Treaty for the Prohibition of Nuclear Weapons in Latin 
America (Treaty of Tlatelolco) is in force;
    (3) Whether the country involved has entered into an agreement with 
the IAEA for the application of safeguards on all its peaceful nuclear 
activities;
    (4) Whether the country involved, if it has not entered into such an 
agreement, has agreed to accept IAEA safeguards when applicable to the 
proposed activity;
    (5) Other nonproliferation controls or conditions applicable to the 
proposed activity;
    (6) The relative significance of the proposed activity;
    (7) The availability of comparable assistance from other sources;
    (8) Any other factors that may bear upon the political, economic, or 
security interests of the United States, including U.S. obligations 
under international agreements or treaties.
    (c) If the proposed assistance involves the export of ``sensitive 
nuclear technology'' as defined in Sec. 810.3, the requirements of 
sections 127 and 128 of the Atomic Energy Act and of any applicable U.S. 
international commitments must also be met.
    (d) Approximately 30 days after the Secretary's grant of a specific 
authorization, a copy of the Secretary's determination may be provided 
to any person requesting it at the Department's Public Reading Room, 
unless the applicant submits information showing that public disclosure 
will cause substantial harm to its competitive position. This provision 
does not affect any other authority provided by law for the Department 
not to disclose information.

[51 FR 44574, Dec. 10, 1986, as amended at 58 FR 39639, July 26, 1993; 
65 FR 16128, Mar. 27, 2000]

[[Page 491]]



Sec. 810.11  Revocation, suspension, or modification of authorization.

    The Secretary may revoke, suspend, or modify a general or specific 
authorization:
    (a) For any material false statement in an application for specific 
authorization or in any additional information submitted in its support;
    (b) For failing to provide a report or for any material false 
statement in a report submitted pursuant to Sec. 810.13;
    (c) If any authorized assistance is subsequently determined to be 
inimical to the interest of the United States or otherwise no longer 
meets the legal criteria for approval; or
    (d) Pursuant to section 129 of the Atomic Energy Act.



Sec. 810.12  Information required in an application for specific authorization.

    Each application shall contain:
    (a) The name, address, and citizenship of the applicant, and 
complete disclosure of all real parties in interest; if the applicant is 
a corporation or other legal entity, where it is incorporated or 
organized, the location of its principal office, and the degree of any 
control or ownership by any foreign person or entity;
    (b) A complete description of the proposed activity, including its 
approximate monetary value, the name and location of any facility or 
project involved, the name and address of the person or legal entity for 
which the activity is to be performed, and a detailed description of any 
specific project to which the activity relates;
    (c) Any information the applicant may wish to provide concerning the 
factors listed in Sec. 810.10(b); and
    (d) Designation of any information considered proprietary whose 
public disclosure would cause substantial harm to the competitive 
position of the applicant.



Sec. 810.13  Reports.

    (a) Any person who has received a specific authorization shall 
within 30 days after beginning the authorized activity provide to the 
Department of Energy a report containing the following information:
    (1) The name, address, and citizenship of the person submitting the 
report;
    (2) The name, address, and citizenship of the person or entity for 
which the activity is being performed;
    (3) A description of the activity, the date it began, its location, 
status, and anticipated date of completion; and
    (4) A copy of the Department of Energy's letter authorizing the 
activity.
    (b) Any person carrying out a specifically authorized activity shall 
inform DOE when the activity is completed or if it is terminated before 
completion.
    (c) Any person granted a specific authorization shall inform DOE 
when it is known that the proposed activity will not be undertaken and 
the granted authorization will not be used.
    (d) Any person, within 30 days after beginning any generally 
authorized activity under Sec. 810.7(b), (c), or (h), shall provide to 
the Department of Energy:
    (1) The name, address, and citizenship of the person submitting the 
report;
    (2) The name, address, and citizenship of the person or entity for 
which the activity is being performed; and
    (3) A description of the activity, the date it began, its location, 
status, and anticipated date of completion.
    (4) An assurance that the U.S. vendor has an agreement with the 
recipient ensuring that any subsequent transfer of materials, equipment, 
or technology transferred under general authorization to a country 
listed in Sec. 810.8(a) will only take place if the vendor obtains DOE 
approval.
    (e) Persons engaging in generally authorized activities as employees 
of persons required to report are not themselves required to report.
    (f) Persons engaging in activities generally authorized under Sec. 
810.7(a), (d), (e), (f), and (g) are not subject to reporting 
requirements under this section.
    (g) All reports should be sent to: U.S. Department of Energy, 
National Nuclear Security Administration, Washington, DC 20585, 
Attention: Director, Nuclear Transfer and Supplier Policy

[[Page 492]]

Division, NN-43, Office of Arms Control and Nonproliferation.

[51 FR 44574, Dec. 10, 1986, as amended at 58 FR 39639, July 16, 1993; 
65 FR 16128, Mar. 27, 2000]



Sec. 810.14  Additional information.

    The Department of Energy may at any time require a person engaging 
in any generally or specifically authorized activity to submit 
additional information.



Sec. 810.15  Violations.

    (a) The Atomic Energy Act provides that:
    (1) Permanent or temporary injunctions or restraining orders may be 
granted to prevent any person from violating any provision of the Atomic 
Energy Act or its implementing regulations.
    (2) Any person convicted of violating or conspiring or attempting to 
violate any provision of section 57 of the Atomic Energy Act may be 
fined up to $10,000 or imprisoned up to 10 years, or both. If the 
offense is committed with intent to injure the United States or to aid 
any foreign nation, the penalty could be up to life imprisonment and a 
$20,000 fine.
    (b) Title 18 of the United States Code, section 1001, provides that 
persons convicted of willfully falsifying, concealing, or covering up a 
material fact or making false, fictitious or fraudulent statements or 
representations may be fined up to $10,000 or imprisoned up to five 
years, or both.



Sec. 810.16  Effective date and savings clause.

    Except for actions that may be taken by DOE pursuant to Sec. 
810.11, the regulations in this part do not affect the validity or terms 
of any specific authorizations granted under regulations in effect 
before April 26, 2000 (and contained in the 10 CFR, part 500 to end, 
edition revised as of January 1, 2000) or generally authorized 
activities under those regulations for which the contracts, purchase 
orders, or licensing arrangements were already in effect. Persons 
engaging in activities that were generally authorized under regulations 
in effect before April 26, 2000, but that require specific authorization 
under the regulations in this part, must request specific authorization 
by July 25, 2000 but may continue their activities until DOE acts on the 
request.

[65 FR 16128, Mar. 27, 2000]



PART 820_PROCEDURAL RULES FOR DOE NUCLEAR ACTIVITIES--Table of Contents



                            Subpart A_General

Sec.
820.1 Purpose and scope.
820.2 Definitions.
820.3 Separation of functions.
820.4 Conflict of interest.
820.5 Service.
820.6 Computation and extension of time.
820.7 Questions of policy or law.
820.8 Evidentiary matters.
820.9 Special assistant.
820.10 Office of the docketing clerk.
820.11 Information requirements.
820.12 Classified, confidential, and controlled information.
820.13 Direction to NNSA contractors.

                      Subpart B_Enforcement Process

820.20 Purpose and scope.
820.21 Investigations.
820.22 Informal conference.
820.23 Consent order.
820.24 Preliminary notice of violation.
820.25 Final notice of violation.
820.26 Enforcement adjudication.
820.27 Answer.
820.28 Prehearing actions.
820.29 Hearing.
820.30 Post-hearing filings.
820.31 Initial decision.
820.32 Final order.
820.33 Default order.
820.34 Accelerated decision.
820.35 Ex parte discussions.
820.36 Filing, form, and service of documents.
820.37 Participation in an adjudication.
820.38 Consolidation and severance.
820.39 Motions.

                       Subpart C_Compliance Orders

820.40 Purpose and scope.
820.41 Compliance order.
820.42 Final order.
820.43 Appeal.

                        Subpart D_Interpretations

820.50 Purpose and scope.
820.51 General Counsel.
820.52 Procedures.

[[Page 493]]

                       Subpart E_Exemption Relief

820.60 Purpose and scope.
820.61 Secretarial officer.
820.62 Criteria.
820.63 Procedures.
820.64 Terms and conditions.
820.65 Implementation plan.
820.66 Appeal.
820.67 Final order.

                      Subpart F_Criminal Penalties

820.70 Purpose and scope.
820.71 Standard.
820.72 Referral to the Attorney General.

                        Subpart G_Civil Penalties

820.80 Basis and purpose.
820.81 Amount of penalty.

Appendix A to Part 820--General Statement of Enforcement Policy

    Authority: 42 U.S.C. 2201; 2282(a); 7191; 28 U.S.C. 2461 note; 50 
U.S.C. 2410.

    Source: 58 FR 43692, Aug. 17, 1993, unless otherwise noted.



                            Subpart A_General



Sec. 820.1   Purpose and scope.

    (a) Scope. This part sets forth the procedures to govern the conduct 
of persons involved in DOE nuclear activities and, in particular, to 
achieve compliance with the DOE Nuclear Safety Requirements by all 
persons subject to those requirements.
    (b) Questions not addressed by these rules. Questions that are not 
addressed in this part shall be resolved at the discretion of the DOE 
Official.
    (c) Exclusion. Activities and facilities covered under E.O. 12344, 
42 U.S.C. 7158 note, pertaining to Naval nuclear propulsion are excluded 
from the requirements of subparts D and E of this part regarding 
interpretations and exemptions related to this part. The Deputy 
Administrator for Naval Reactors or his designee will be responsible for 
formulating, issuing, and maintaining appropriate records of 
interpretations and exemptions for these facilities and activities.

[58 FR 43692, Aug. 17, 1993, as amended at 71 FR 68732, Nov. 28, 2006]



Sec. 820.2  Definitions.

    (a) The following definitions apply to this part:
    Act or AEA means the Atomic Energy Act of 1954, as amended.
    Administrative Law Judge means an Administrative Law Judge appointed 
under 5 U.S.C. 3105.
    Consent Agreement means any written document, signed by the Director 
and a person, containing stipulations or conclusions of fact or law and 
a remedy acceptable to both the Director and the person.
    Contractor means any person under contract (or its subcontractors or 
suppliers) with the Department of Energy with the responsibility to 
perform activities or to supply services or products that are subject to 
DOE Nuclear Safety Requirements.
    Department means the United States Department of Energy or any 
predecessor agency.
    Director means the DOE Official to whom the Secretary has assigned 
the authority to issue Notices of Violation under subpart B of this 
part, including the Director of Enforcement, or his designee. With 
regard to activities and facilities covered under E.O. 12344, 42 U.S.C. 
7158 note, pertaining to Naval nuclear propulsion, the Director shall 
mean the Deputy Administrator for Naval Reactors or his designee.
    Docketing Clerk means the Office in DOE with which documents for an 
enforcement action must be filed and which is responsible for 
maintaining a record and a public docket for enforcement actions 
commencing with the filing of a Preliminary Notice of Violation. It is 
also the Office with which interpretations, exemptions, and any other 
documents designated by the Secretary shall be filed.
    DOE means the United States Department of Energy or any predecessor 
agency.
    DOE Nuclear Safety Requirements means the set of enforceable rules, 
regulations, or orders relating to nuclear safety adopted by DOE (or by 
another Agency if DOE specifically identifies the rule, regulation, or 
order) to govern the conduct of persons in connection with any DOE 
nuclear activity and includes any programs, plans, or other provisions 
intended to implement these rules, regulations, orders, a Nuclear 
Statute or the Act, including

[[Page 494]]

technical specifications and operational safety requirements for DOE 
nuclear facilities. For purposes of the assessment of civil penalties, 
the definition of DOE Nuclear Safety Requirements is limited to those 
identified in 10 CFR 820.20(b).
    DOE Official means the person, or his designee, in charge of making 
a decision under this part.
    Enforcement adjudication means the portion of the enforcement 
process that commences when a respondent requests an on-the-record 
adjudication of the assessment of a civil penalty and terminates when a 
Presiding Officer files an initial decision.
    Exemption means the final order that sets forth the relief, waiver, 
or release, either temporary or permanent, from a DOE Nuclear Safety 
Requirement, as granted by the appropriate Secretarial Officer pursuant 
to the provisions of subpart E of this part.
    Filing means, except as otherwise specifically indicated, the 
completion of providing a document to the Office of the Docketing Clerk 
and serving the document on the person to whom the document is 
addressed.
    Final Notice of Violation means a document issued by the Director in 
which the Director determines that the respondent has violated or is 
continuing to violate a DOE Nuclear Safety Requirement and includes:
    (i) A statement specifying the DOE Nuclear Safety Requirement to 
which the violation relates;
    (ii) A concise statement of the basis for the determination;
    (iii) Any remedy, including the amount of any civil penalty;
    (iv) A statement explaining the reasoning behind any remedy; and
    (v) If the Notice assesses a civil penalty, notice of respondent's 
right:
    (A) To waive further proceedings and pay the civil penalty;
    (B) To request an on-the-record adjudication of the assessment of 
the civil penalty; or
    (C) To seek judicial review of the assessment of the civil penalty.
    Final Order means an order of the Secretary that represents final 
agency action and, where appropriate, imposes a remedy with which the 
recipient of the order must comply.
    General Counsel means the General Counsel of DOE or his designee.
    Hearing means an on-the-record enforcement adjudication open to the 
public and conducted under the procedures set forth in subpart B of this 
part.
    Initial Decision means the decision filed by the Presiding Officer 
based upon the record of the enforcement adjudication out of which it 
arises.
    Interpretation means a statement by the General Counsel concerning 
the meaning or effect of the Act, a Nuclear Statute, or a DOE Nuclear 
Safety Requirement which relates to a specific factual situation but may 
also be a ruling of general applicability where the General Counsel 
determines such action to be appropriate.
    NNSA means the National Nuclear Security Administration.
    Nuclear Statute means any statute or provision of a statute that 
relates to a DOE nuclear activity and for which DOE is responsible.
    Party means the Director and the respondent in an enforcement 
adjudication under this part.
    Person means any individual, corporation, partnership, firm, 
association, trust, estate, public or private institution, group, 
Government agency, any State or political subdivision of, or any 
political entity within a State, any foreign government or nation or any 
political subdivision of any such government or nation, or other entity 
and any legal successor, representative, agent or agency of the 
foregoing; provided that person does not include the Department or the 
United States Nuclear Regulatory Commission. For purposes of civil 
penalty assessment, the term also includes affiliated entities, such as 
a parent corporation.
    Preliminary Notice of Violation means a document issued by the 
Director in which the Director sets forth the preliminary conclusions 
that the respondent has violated or is continuing to violate a DOE 
Nuclear Safety Requirement and includes:
    (i) A statement specifying the DOE Nuclear Safety Requirement to 
which the violation relates;
    (ii) A concise statement of the basis for alleging the violation;

[[Page 495]]

    (iii) Any proposed remedy, including the amount of any proposed 
civil penalty; and
    (iv) A statement explaining the reasoning behind any proposed 
remedy.
    Presiding Officer means the Administrative Law Judge designated to 
be in charge of an enforcement adjudication who shall conduct a fair and 
impartial hearing, assure that the facts are fully elicited, adjudicate 
all issues, avoid delay, and shall have authority to:
    (i) Conduct an adjudicatory hearing under this part;
    (ii) Rule upon motions, requests, and offers of proof, dispose of 
procedural requests, and issue all necessary orders;
    (iii) Exercise the authority set forth in Sec. 820.8;
    (iv) Admit or exclude evidence;
    (v) Hear and decide questions of fact, law, or discretion, except 
for the validity of regulations and interpretations issued by DOE;
    (vi) Require parties to attend conferences for the settlement or 
simplification of the issues, or the expedition of the proceedings;
    (vii) Draw adverse inferences against a party that fails to comply 
with his orders;
    (viii) Do all other acts and take all measures necessary for the 
maintenance of order and for the efficient, fair and impartial 
adjudication of issues arising in proceedings governed by these rules.
    Remedy means any action necessary or appropriate to rectify, 
prevent, or penalize a violation of the Act, a Nuclear Statute, or a DOE 
Nuclear Safety Requirements, including the assessment of civil 
penalties, the requirement of specific actions, or the modification, 
suspension or recision of a contract.
    Respondent means any person to whom the Director addresses a Notice 
of Violation.
    Secretarial Officer means an individual who is appointed to a 
position in the Department by the President of the United States with 
the advice and consent of the Senate or the head of a departmental 
element who is primarily responsible for the conduct of an activity 
under the Act. With regard to activities and facilities covered under 
E.O. 12344, 42 U.S.C. 7158 note, pertaining to Naval nuclear propulsion, 
Secretarial Officer means the Deputy Administrator for Naval Reactors.
    Secretary means the Secretary of Energy or his designee.
    (b) Terms defined in the Act and not defined in these rules are used 
consistent with the meanings given in the Act.
    (c) As used in this part, words in the singular also include the 
plural and words in the masculine gender also include the feminine and 
vice versa, as the case may require.

[58 FR 43692, Aug. 17, 1993, as amended at 71 FR 68732, Nov. 28, 2006; 
72 FR 31921, June 8, 2007]



Sec. 820.3  Separation of functions.

    (a) Separation of functions. After a respondent requests an on-the-
record adjudication of an assessment of a civil penalty contained in a 
Final Notice of Violation, no person shall participate in a decision-
making function in an enforcement proceeding if he has been, is or will 
be responsible for an investigative or prosecutorial function related to 
that proceeding or if he reports to the person responsible for the 
investigative or prosecutorial function.
    (b) Director. The Director shall be responsible for the 
investigation and prosecution of violations of the DOE Nuclear Safety 
Requirements. After the request for an enforcement adjudication, the 
Director shall not discuss ex parte the merits of the proceeding with a 
DOE Official or any person likely to advise the DOE Official in the 
decision of the proceeding.
    (c) Presiding Officer. A Presiding Officer shall perform no duties 
inconsistent with his responsibilities as a Presiding Officer, and will 
not be responsible to or subject to the supervision or direction of any 
officer or employee engaged in the performance of an investigative or 
prosecutorial function. The Presiding Officer may not consult any person 
other than a member of his staff or a special assistant on any fact at 
issue unless on notice and opportunity for all parties to participate, 
except as required for the disposition of ex parte matters as authorized 
by law.

[[Page 496]]



Sec. 820.4  Conflict of interest.

    A DOE Official may not perform functions provided for in this part 
regarding any matter in which he has a financial interest or has any 
relationship that would make it inappropriate for him to act. A DOE 
Official shall withdraw at any time from any action in which he deems 
himself disqualified or unable to act for any reason. Any interested 
person may at any time request the General Counsel to disqualify a DOE 
Official or request that the General Counsel disqualify himself. In the 
case of an enforcement adjudication, a motion to disqualify shall be 
made to the Presiding Officer. The request shall be supported by 
affidavits setting forth the grounds for disqualification of the DOE 
Official. A decision shall be made as soon as practicable and 
information may be requested from any person concerning the matter. If a 
DOE Official is disqualified or withdraws from the proceeding, a 
qualified individual who has none of the infirmities listed in this 
section shall replace him.



Sec. 820.5  Service.

    (a) General rule. Any document filed with the Docketing Clerk must 
be served on the addressee of the document and shall not be considered 
filed until service is complete and unless accompanied by proof of 
service; provided that the filing with the Docketing Clerk of any 
document addressed to the DOE Official shall be considered service on 
the DOE Official.
    (b) Service in an Enforcement Adjudication. Any document filed in an 
enforcement adjudication must be served on all other participants in the 
adjudication.
    (c) Who may be served. Any paper required to be served upon a person 
shall be served upon him or upon the representative designated by him or 
by law to receive service of papers. When an attorney has entered an 
appearance on behalf of a person, service must be made upon the attorney 
of record.
    (d) How service may be made. Service may be made by personal 
delivery, by first class, certified or registered mail or as otherwise 
authorized or required by the DOE Official. The DOE Official may require 
service by express mail.
    (e) When service is complete. Service upon a person is complete:
    (1) By personal delivery, on handing the paper to the individual, or 
leaving it at his office with his clerk or other person in charge or, if 
there is no one in charge, leaving it in a conspicuous place therein or, 
if the office is closed or the person to be served has no office, 
leaving it at his usual place of residence with some person of suitable 
age and discretion then residing there;
    (2) By mail, on deposit in the United States mail, properly stamped 
and addressed; or
    (3) By any other means authorized or required by the DOE Official.
    (f) Proof of service. Proof of service, stating the name and address 
of the person on whom served and the manner and date of service, shall 
be shown for each document filed, and may be made by:
    (1) Written acknowledgement of the person served or his counsel;
    (2) The certificate of counsel if he has made the service;
    (3) The affidavit of the person making the service; or
    (4) Any other means authorized or required by the DOE Official.
    (g) Deemed service. If a document is deemed filed under this part, 
then the service requirements shall be deemed satisfied when the 
document is deemed filed.



Sec. 820.6  Computation and extension of time.

    (a) Computation. In computing any period of time set forth in this 
part, except as otherwise provided, the day of the event from which the 
designated period begins to run shall not be included. Saturdays, 
Sundays, and Federal legal holidays shall be included. When a stated 
time expires on a Saturday, Sunday or Federal legal holiday, the stated 
time period shall be extended to include the next business day.
    (b) Extensions of time. A DOE Official may grant an extension of any 
time period set forth in this part.
    (c) Service by mail. Where a pleading or document is served by mail, 
five (5) days shall be added to the time allowed by these rules for the 
filing of a responsive pleading or document. Where a

[[Page 497]]

pleading or document is served by express mail, only two (2) days shall 
be added.



Sec. 820.7  Questions of policy or law.

    (a) Certification. There shall be no interlocutory appeal from any 
ruling order, or action decision of a DOE Official except as permitted 
by this section. A Presiding Officer in an enforcement adjudication may 
certify, in his discretion, a question to the Secretary, when the order 
or ruling involves an important question of law or policy concerning 
which there is substantial grounds for difference of opinion, and either 
an immediate decision will materially advance the ultimate termination 
of the proceeding, or subsequent review will be inadequate or 
ineffective.
    (b) Decision. The certified question shall be decided as soon as 
practicable. If the Secretary determines that the question was 
improvidently certified, or if he takes no action within thirty days of 
the certification, the certification is dismissed. The Secretary may 
decide the question on the basis of the submission made by the Presiding 
Officer or may request further information from any person.



Sec. 820.8  Evidentiary matters.

    (a) General. A DOE Official may obtain information or evidence for 
the full and complete investigation of any matter related to a DOE 
nuclear activity or for any decision required by this part. A DOE 
Official may sign, issue and serve subpoenas; administer oaths and 
affirmations; take sworn testimony; compel attendance of and sequester 
witnesses; control dissemination of any record of testimony taken 
pursuant to this section; subpoena and reproduce books, papers, 
correspondence, memoranda, contracts, agreements, or other relevant 
records or tangible evidence including, but not limited to, information 
retained in computerized or other automated systems in possession of the 
subpoenaed person.
    (b) Special Report Orders. A DOE Official may issue a Special Report 
Order (SRO) requiring any person involved in a DOE nuclear activity or 
otherwise subject to the jurisdiction of DOE to file a special report 
providing information relating to a DOE Nuclear Safety Requirement, the 
Act, or a Nuclear Statute, including but not limited to written answers 
to specific questions. The SRO may be in addition to any other reports 
required by this part.
    (c) Extension of Time. The DOE Official who issues a subpoena or SRO 
pursuant to this section, for good cause shown, may extend the time 
prescribed for compliance with the subpoena or SRO and negotiate and 
approve the terms of satisfactory compliance.
    (d) Reconsideration. Prior to the time specified for compliance, but 
in no event more than 10 days after the date of service of the subpoena 
or SRO, the person upon whom the document was served may request 
reconsideration of the subpoena or SRO with the DOE Official who issued 
the document. If the subpoena or SRO is not modified or rescinded within 
10 days of the date of the filing of the request, the subpoena or SRO 
shall be effective as issued and the person upon whom the document was 
served shall comply with the subpoena or SRO within 20 days of the date 
of the filing. There is no administrative appeal of a subpoena or SRO.
    (e) Service. A subpoena or SRO shall be served in the manner set 
forth in Sec. 820.5, except that service by mail must be made by 
registered or certified mail.
    (f) Fees. (1) A witness subpoenaed by a DOE Official shall be paid 
the same fees and mileage as paid to a witness in the district courts of 
the United States.
    (2) If a subpoena is issued at the request of a person other than an 
officer or agency of the United States, the witness fees and mileage 
shall be paid by the person who requested the subpoena. However, at the 
request of the person, the witness fees and mileage shall be paid by the 
DOE if the person shows:
    (i) The presence of the subpoenaed witness will materially advance 
the proceeding; and
    (ii) The person who requested that the subpoena be issued would 
suffer a serious hardship if required to pay the witness fees and 
mileage. The DOE Official issuing the subpoena shall make

[[Page 498]]

the determination required by this subsection.
    (g) Enforcement. If any person upon whom a subpoena or SRO is served 
pursuant to this section, refuses or fails to comply with any provision 
of the subpoena or SRO, an action may be commenced in the United States 
District Court to enforce the subpoena or SRO.
    (h) Certification. (1) Documents produced in response to a subpoena 
shall be accompanied by the sworn certification, under penalty of 
perjury, of the person to whom the subpoena was directed or his 
authorized agent that a diligent search has been made for each document 
responsive to the subpoena, and to the best of his knowledge, 
information, and belief all such documents responsive to the subpoena 
are being produced unless withheld on the grounds of privilege pursuant 
to paragraph (i) of this section.
    (2) Any information furnished in response to an SRO shall be 
accompanied by the sworn certification under penalty of perjury of the 
person to whom it was directed or his authorized agent who actually 
provides the information that to the best of his knowledge, information 
and belief a diligent effort has been made to provide all information 
required by the SRO, and all information furnished is true, complete, 
and correct unless withheld on grounds of privilege pursuant to 
paragraph (i) of this section.
    (3) If any document responsive to a subpoena is not produced or any 
information required by an SRO is not furnished, the certification shall 
include a statement setting forth every reason for failing to comply 
with the subpoena or SRO.
    (i) Withheld information. If a person to whom a subpoena or SRO is 
directed withholds any document or information because of a claim of 
attorney-client or other privilege, the person submitting the 
certification required by paragraph (h) of this section also shall 
submit a written list of the documents or the information withheld 
indicating a description of each document or information, the date of 
the document, each person shown on the document as having received a 
copy of the document, each person shown on the document as having 
prepared or been sent the document, the privilege relied upon as the 
basis for withholding the document or information, a memorandum of law 
supporting the claim of privilege, and an identification of the person 
whose privilege is being asserted.
    (j) Statements/testimony. (1) If a person's statement/testimony is 
taken pursuant to a subpoena, the DOE Official shall determine whether 
the statement/testimony shall be recorded and the means by which it is 
recorded.
    (2) A person whose statement/testimony is recorded may procure a 
copy of the transcript by making a written request for a copy and paying 
the appropriate fees. Upon proper identification, any potential witness 
or his attorney has the right to inspect the official transcript of the 
witness' own statement or testimony.
    (k) Sequestration. The DOE Official may sequester any person who 
furnishes documents or gives testimony. Unless permitted by the DOE 
Official, neither a witness nor his attorney shall be present during the 
examination of any other witnesses.
    (l) Attorney. (1) Any person whose statement or testimony is taken 
may be accompanied, represented and advised by his attorney; provided 
that, if the witness claims a privilege to refuse to answer a question 
on the grounds of self-incrimination, the witness must assert the 
privilege personally.
    (2) The DOE Official shall take all necessary action to regulate the 
course of testimony and to avoid delay and prevent or restrain 
contemptuous or obstructionist conduct or contemptuous language. The DOE 
Official may take actions as the circumstances may warrant in regard to 
any instances where any attorney refuses to comply with directions or 
provisions of this section.



Sec. 820.9  Special assistant.

    A DOE Official may appoint a person to serve as a special assistant 
to assist the DOE Official in the conduct of any proceeding under this 
part. Such appointment may occur at any appropriate time. A special 
assistant shall be subject to the disqualification provisions in Sec. 
820.5. A special assistant may perform those duties assigned by the DOE 
Official, including but not limited

[[Page 499]]

to, serving as technical interrogators, technical advisors and special 
master.



Sec. 820.10  Office of the docketing clerk.

    (a) Docket. The Docketing Clerk shall maintain a docket for 
enforcement actions commencing with the issuance of a Preliminary Notice 
of Violation, interpretations issued pursuant to subpart D of this part, 
exemptions issued pursuant to subpart E of this part, and any other 
matters designated by the Secretary. A docket for an enforcement action 
shall contain all documents required to be filed in the proceeding.
    (b) Public inspection. Subject to the provisions of law restricting 
the public disclosure of certain information, any person may, during 
Department business hours, inspect and copy any document filed with the 
Docketing Clerk. The cost of duplicating documents shall be borne by the 
person seeking copies of such documents. The DOE Official may waive this 
cost in appropriate cases.
    (c) Transcript. Except as otherwise provided in this part, after the 
filing of a Preliminary Notice of Violation, all hearings, conferences, 
and other meetings in the enforcement process shall be transcribed 
verbatim. A copy of the transcript shall be filed with the Docketing 
Clerk promptly. The Docketing Clerk shall serve all participants with 
notice of the availability of the transcript and shall furnish the 
participants with a copy of the transcript upon payment of the cost of 
reproduction, unless a participant can show that the cost is unduly 
burdensome.



Sec. 820.11  Information requirements.

    (a) Any information pertaining to a nuclear activity provided to DOE 
by any person or maintained by any person for inspection by DOE shall be 
complete and accurate in all material respects.
    (b) No person involved in a DOE nuclear activity shall conceal or 
destroy any information concerning a violation of a DOE Nuclear Safety 
Requirement, a Nuclear Statute, or the Act.



Sec. 820.12  Classified, confidential, and controlled information

    (a) General rule. The DOE Official in charge of a proceeding under 
this part may utilize any procedures deemed appropriate to safeguard and 
prevent disclosure of classified, confidential, and controlled 
information, including Restricted Data and National Security 
Information, to unauthorized persons, with minimum impairment of rights 
and obligations under this part.
    (b) Obligation to protect restricted information. Nothing in this 
part shall relieve any person from safeguarding classified, 
confidential, and controlled information, including Restricted Data or 
National Security Information, in accordance with the applicable 
provisions of federal statutes and the rules, regulations, and orders of 
any federal agency.



Sec. 820.13  Direction to NNSA contractors.

    (a) Notwithstanding any other provision of this part, and pursuant 
to section 3213 of Pub. L. 106-65, as amended (codified at 50 U.S.C. 
2403), the NNSA, rather than the Director, signs, issues and serves the 
following actions that direct NNSA contractors:
    (1) Subpoenas;
    (2) Orders to compel attendance;
    (3) Disclosures of information or documents obtained during an 
investigation or inspection;
    (4) Preliminary notices of violations; and
    (5) Final notices of violations.
    (b) The NNSA Administrator shall act after consideration of the 
Director's recommendation.

[72 FR 31921, June 8, 2007]



                      Subpart B_Enforcement Process



Sec. 820.20  Purpose and scope.

    (a) Purpose. This subpart establishes the procedures for 
investigating the nature and extent of violations of the DOE Nuclear 
Safety Requirements, for determining, whether a violation has occurred, 
for imposing an appropriate remedy, and for adjudicating the assessment 
of a civil penalty.
    (b) Basis for civil penalties. DOE may assess civil penalties 
against any person subject to the provisions of this part who has 
entered into an agreement of indemnification under 42 U.S.C. 2210(d) (or 
any subcontractor or

[[Page 500]]

supplier thereto), unless exempted from civil penalties as provided in 
paragraph (c) of this section, on the basis of a violation of:
    (1) Any DOE Nuclear Safety Requirement set forth in the Code of 
Federal Regulations;
    (2) Any Compliance Order issued pursuant to subpart C of this part; 
or
    (3) Any program, plan or other provision required to implement any 
requirement or order identified in paragraphs (b)(1) or (b)(2) of this 
section.
    (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 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.

[58 FR 43692, Aug. 17, 1993, as amended at 74 FR 11843, Mar. 20, 2009]



Sec. 820.21  Investigations.

    (a) The Director may initiate and conduct investigations and 
inspections relating to the scope, nature and extent of compliance by a 
person with the Act and the DOE Nuclear Safety Requirements and take 
such action as he deems necessary and appropriate to the conduct of the 
investigation or inspection, including any action pursuant to Sec. 
820.8.
    (b) Any person may request the Director to initiate an investigation 
or inspection pursuant to paragraph (a) of this section. A request for 
an investigation or inspection shall set forth the subject matter or 
activity to be investigated or inspected as fully as possible and 
include supporting documentation and information. No particular forms or 
procedures are required.
    (c) Any person who is requested to furnish documentary evidence, 
information or testimony in an investigation or during an inspection 
shall be informed, upon written request, of the general purpose of the 
investigation or inspection.
    (d) Information or documents that are obtained during any 
investigation or inspection shall not be disclosed unless the Director 
directs or authorizes the public disclosure of the investigation. Upon 
such authorization, the information or documents are a matter of public 
record and disclosure is not precluded by the Freedom of Information 
Act, 5 U.S.C. 552 and 10 CFR part 1004. A request for confidential 
treatment of information for purposes of the Freedom of Information Act 
shall not prevent disclosure by the Director if

[[Page 501]]

disclosure is determined to be in the public interest and otherwise 
permitted or required by law.
    (e) During the course of an investigation or inspection any person 
may submit at any time any document, statement of facts or memorandum of 
law for the purpose of explaining the person's position or furnish 
information which the person considers relevant to a matter or activity 
under investigation or inspection.
    (f) If facts disclosed by an investigation or inspection indicate 
that further action is unnecessary or unwarranted, the investigation may 
be closed without prejudice to further investigation or inspection by 
the Director at any time that circumstances so warrant.
    (g) The Director may issue enforcement letters that communicate 
DOE's expectations with respect to any aspect of the requirements of 
DOE's Nuclear Safety Requirements, including identification and 
reporting of issues, corrective actions, and implementation of DOE's 
Nuclear Safety Requirements, provided that an enforcement letter may not 
create the basis for any legally enforceable requirement pursuant to 
this part.
    (h) The Director may sign, issue and serve subpoenas.

[58 FR 43692, Aug. 17, 1993, as amended at 72 FR 31921, June 8, 2007]



Sec. 820.22  Informal conference.

    The Director may convene an informal conference to discuss any 
situation that might be a violation of the Act or a DOE Nuclear Safety 
Requirement, its significance and cause, any correction taken or not 
taken by the person, any mitigating or aggravating circumstances, and 
any other useful information. The Director may compel a person to attend 
the conference. This conference will not normally be open to the public 
and there shall be no transcript.



Sec. 820.23  Consent order.

    (a) Settlement policy. DOE encourages settlement of an enforcement 
proceeding at any time if the settlement is consistent with the 
objectives of the Act and the DOE Nuclear Safety Requirements. The 
Director and a person may confer at any time concerning settlement. 
These settlement conferences shall not be open to the public and there 
shall be no transcript.
    (b) Consent order. Notwithstanding any other provision of this part, 
DOE may at any time resolve any or all issues in an outstanding 
enforcement proceeding with a Consent Order. A Consent Order must be 
signed by the Director and the person who is its subject, or a duly 
authorized representative, must indicate agreement to the terms 
contained therein and must be filed. A Consent Order need not constitute 
an admission by any person that the Act or a DOE Nuclear Safety 
Requirement has been violated, nor need it constitute a finding by the 
DOE that such person has violated the Act or a DOE Nuclear Safety 
Requirement. A Consent Order shall, however, set forth the relevant 
facts which form the basis for the Order and what remedy, if any, is 
imposed.
    (c) Effect on enforcement adjudication. If a Consent Order is signed 
after the commencement of an enforcement adjudication, the adjudication 
of the issues subject to the Consent Order shall be stayed until the 
completion of the Secretarial Review Process. If the Consent Order 
becomes a Final Order, the adjudication shall be terminated or modified 
as specified in the Order.
    (d) Secretarial review. A Consent Order shall become a Final Order 
30 days after it is filed unless the Secretary files a rejection of the 
Consent Order or a Modified Consent Order. A Modified Consent Order 
shall become a Final Order if the Director and the person who is its 
subject sign it within 15 days of its filing.



Sec. 820.24  Preliminary notice of violation.

    (a) If the Director has reason to believe a person has violated or 
is continuing to violate a provision of the Act or a DOE Nuclear Safety 
Requirement, he may file a Preliminary Notice of Violation. The Notice 
and any transmittal documents shall contain sufficient information to 
fairly apprise the respondent of the facts and circumstances of the 
alleged violations and the basis of any proposed remedy, and to properly 
indicate what further

[[Page 502]]

actions are necessary by or available to respondent.
    (b) Within 30 days after the filing of a Preliminary Notice of 
Violation, the respondent shall file a reply.
    (c) The reply shall be in writing and signed by the person filing 
it. The reply shall contain a statement of all relevant facts pertaining 
to the situation that is the subject of the Notice. The reply shall 
state any facts, explanations and arguments which support a denial that 
a violation has occurred as alleged; demonstrate any extenuating 
circumstances or other reason why the proposed remedy should not be 
imposed or should be mitigated; and furnish full and complete answers to 
the questions set forth in the Notice. Copies of all relevant documents 
shall be submitted with the reply. The reply shall include a discussion 
of the relevant authorities which support the position asserted, 
including rulings, regulations, interpretations, and previous decisions 
issued by DOE.
    (d) The respondent may terminate an enforcement action if the reply 
agrees to comply with the proposed remedy and waives any right to 
contest the Notice or the remedy. If a respondent elects this option, 
the Preliminary Notice of Violation shall be deemed a Final Order upon 
the filing of the reply.



Sec. 820.25  Final notice of violation.

    (a) General rule. If, after reviewing the reply submitted by the 
respondent, the Director determines that a person violated or is 
continuing to violate a provision of the Act or a DOE Nuclear Safety 
Requirement, he may file a Final Notice of Violation. The Final Notice 
shall concisely state the determined violation, any designated penalty, 
and further actions necessary by or available to respondent.
    (b) Effect of final notice. (1) If a Final Notice of Violation does 
not contain a civil penalty, it shall be deemed filed as a Final Order 
15 days after the Final Notice is filed unless the Secretary files a 
Final Order which modifies the Final Notice.
    (2) If a Final Notice of Violation contains a civil penalty, the 
respondent must file within 30 days after the filing of the Final 
Notice:
    (i) A waiver of further proceedings;
    (ii) A request for an on-the-record adjudication; or
    (iii) A notice of intent to seek judicial review.
    (c) Effect of waiver. If a respondent waives further proceedings, 
the Final Notice of Violation shall be deemed a Final Order enforceable 
against the respondent. The respondent must pay any civil penalty set 
forth in the Notice of Violation within 60 days of the filing of waiver 
unless the Director grants additional time.
    (d) Effect of request. If a respondent files a request for an on-
the-record adjudication, then an enforcement adjudication commences.
    (e) Effect of notice of intent. If a respondent files a Notice of 
Intent, the Final Notice of Violation shall be deemed a Final Order 
enforceable against the respondent.
    (f) Amendment. The Director may amend the Final Notice of Violation 
at any time before an action takes place pursuant to paragraph (b) of 
this section. An amendment shall add fifteen days to the time periods 
under paragraph (b) of this section.
    (g) Withdrawal. The Director may withdraw the Final Notice of 
Violation, or any part thereof, at any time before an action under 
paragraph (b) of this section.



Sec. 820.26  Enforcement adjudication.

    If a respondent files a request for an on-the-record adjudication, 
an enforcement adjudication is initiated and the Docketing Clerk shall 
notify the Secretary who shall appoint an Administrative Law Judge to be 
the Presiding Officer.



Sec. 820.27  Answer.

    (a) General. If a respondent files a request for an on-the-record 
adjudication pursuant to Sec. 820.25, a written answer to the Final 
Notice of Violation shall be filed at the same time the request is 
filed.
    (b) Contents of the answer. The answer shall clearly and directly 
admit, deny or explain each of the factual allegations contained in the 
Final Notice of Violation with regard to which respondent has any 
knowledge, information or belief. Where respondent has no

[[Page 503]]

knowledge, information or belief of a particular factual allegation and 
so states, the allegation is deemed denied. The answer shall also state 
the circumstance or argument that is alleged to constitute the grounds 
of defense and the facts that respondent intends to place at issue.
    (c) Failure to admit, deny, or explain. Failure of respondent to 
admit, deny, or explain any material factual allegation contained in the 
Final Notice of Violation constitutes an admission of the allegation.
    (d) Amendment of the answer. The respondent may amend the answer to 
the Final Notice of Violation upon motion granted by the Presiding 
Officer.



Sec. 820.28  Prehearing actions.

    (a) General. The Presiding Officer shall establish a schedule for 
the adjudication and take such other actions as he determines 
appropriate to conduct the adjudication in a fair and expeditious 
manner.
    (b) Prehearing conference. The Presiding Officer, at any time before 
a hearing begins, may direct the parties and their counsel, or other 
representatives, to appear at a conference before him to consider, as 
appropriate:
    (1) The settlement of the case;
    (2) The simplification of issues and stipulation of facts not in 
dispute;
    (3) The necessity or desirability of amendments to pleadings;
    (4) The exchange of exhibits;
    (5) The limitation of the number of expert or other witnesses;
    (6) Setting a time and place for the hearing; and
    (7) Any other matters that may expedite the disposition of the 
proceeding.
    (c) Exchange of witness lists and documents. Unless otherwise 
ordered by the Presiding Officer, at least five (5) days before any 
prehearing conference, each party shall make available to all other 
parties, as appropriate, the names of the expert and other witnesses it 
intends to call, together with a brief narrative summary of their 
expected testimony, and copies of all documents and exhibits that each 
party intends to introduce into evidence. Documents and exhibits shall 
be marked for identification as ordered by the Presiding Officer. 
Documents that have not been exchanged and witnesses whose names have 
not been exchanged shall not be introduced into evidence or allowed to 
testify without permission of the Presiding Officer. The Presiding 
Officer shall allow the parties reasonable opportunity to review new 
evidence.
    (d) Prehearing conference order. The Presiding Officer shall prepare 
an order incorporating any action taken at the conference. The summary 
shall incorporate any written stipulations or agreements of the parties 
and all rulings and appropriate orders containing directions to the 
parties.
    (e) Alternative to prehearing conference. If a prehearing conference 
is unnecessary or impracticable, the Presiding Officer, on motion or sua 
sponte, may direct the parties to make appropriate filings with him to 
accomplish any of the objectives set forth in this section.
    (f) Other discovery. (1) Except as provided by paragraph (c) of this 
section, further discovery under this section shall be permitted only 
upon determination by the Presiding Officer:
    (i) That such discovery will not in any way unreasonably delay the 
proceeding;
    (ii) That the information to be obtained is not otherwise 
obtainable; and
    (iii) That such information has significant probative value.
    (2) The Presiding Officer shall order depositions upon oral 
questions only upon a showing of good cause and upon a finding that:
    (i) The information sought cannot be obtained by alternative 
methods; or
    (ii) There is substantial reason to believe that relevant and 
probative evidence may otherwise not be preserved for presentation by a 
witness at the hearing.
    (3) Any party to the proceeding desiring an order to take further 
discovery shall make a motion therefor. Such a motion shall set forth:
    (i) The circumstances warranting the taking of the discovery;
    (ii) The nature of the information expected to be discovered; and
    (iii) The proposed time and place where it will be taken. If the 
Presiding Officer determines that the motion should be granted, he shall 
issue an order for the taking of such discovery

[[Page 504]]

together with the conditions and terms thereof.
    (4) When the information sought to be obtained is within the control 
of one of the parties, failure to comply with an order issued pursuant 
to this paragraph may lead to the inference that the information to be 
discovered would be adverse to the party from whom the information was 
sought, or the issuance of a default order under 820.38.



Sec. 820.29  Hearing.

    (a) General. Except as otherwise provided by this part or the 
Presiding Officer, a hearing shall be conducted in accordance with the 
Federal Rules of Evidence. The Presiding Officer shall have the 
discretion to admit all evidence that is not irrelevant, immaterial, 
unduly repetitious, or otherwise unreliable or of little probative 
value, if he believes the evidence might facilitate the fair and 
expeditious resolution of the proceeding. But such evidence may be 
reasonably limited by the Presiding Officer in scope and length in order 
to permit prompt resolution of the proceeding. In the presentation, 
admission, disposition, and use of evidence, the Presiding Officer shall 
preserve the confidentiality of trade secrets and other commercial and 
financial information, and shall protect classified and unclassified 
controlled nuclear information, as well as any other information 
protected from public disclosure pursuant to law or regulation. The 
confidential, trade secret, or classified or otherwise protected status 
of any information shall not, however, preclude its being introduced 
into evidence. The Presiding Officer may make such orders as may be 
necessary to consider such evidence in camera, including the preparation 
of a supplemental initial decision to address questions of law, fact, or 
discretion that arise out of that portion of the evidence that is 
confidential, includes trade secrets, is classified, or is otherwise 
protected.
    (b) Subpoenas. The attendance of witnesses or the production of 
documentary evidence may be required by subpoena.
    (c) Examination of witnesses. There shall be no direct oral 
testimony by witnesses, except as permitted by the Presiding Officer. In 
lieu of oral testimony, the Presiding Officer shall admit into the 
record as evidence verified written statements of fact or opinion 
prepared by a witness. The admissibility of the evidence contained in 
the statement shall be subject to the same rules as if the testimony 
were produced under oral examination. Before any such statement is read 
or admitted into evidence, the witness shall have delivered a copy of 
the statement to the Presiding Officer and the opposing counsel not less 
than 10 days prior to the date the witness is scheduled to testify. The 
witness presenting the statement shall swear or affirm that the 
statement is true and accurate to the best of his knowledge, 
information, and belief and shall be subject to appropriate oral cross-
examination upon the contents thereof provided such cross-examination is 
not unduly repetitious.
    (d) Burden of presentation; burden of persuasion. The Director has 
the burden of going forward with and of proving that the violation 
occurred as set forth in the Notice of Violation and that the proposed 
civil penalty is appropriate. Following the establishment of a prima 
facie case, respondent shall have the burden of presenting and of going 
forward with any defense to the allegations set forth in the Notice of 
Violation. Each matter of controversy shall be determined by the 
Presiding Officer upon a preponderance of the evidence.



Sec. 820.30  Post-hearing filings.

    Within fifteen days after the filing of the transcript of the 
hearing, or within such longer time as may be fixed by the Presiding 
Officer, any party may file for the consideration of the Presiding 
Officer, proposed findings of fact, conclusions of law, and a proposed 
order, together with briefs in support thereof. Reply briefs may be 
filed within ten days of the filing of briefs. All filings shall be in 
writing, shall be served upon all parties, and shall contain adequate 
references to the record and authorities relied on.



Sec. 820.31  Initial decision.

    (a) Initial Decision. The Presiding Officer shall file an Initial 
Decision as soon as practicable after the period for

[[Page 505]]

filing reply briefs under 820.30 has expired. The Initial Decision shall 
contain findings of fact, conclusions regarding all material issues of 
law or discretion, as well as reasons therefor, any remedy and a 
proposed Final Order. A party may file comments on an Initial Decision 
within fifteen days of its filing.
    (b) Amount of civil penalty. If the Presiding Officer determines 
that a violation has occurred and that a civil penalty is appropriate, 
the Initial Decision shall set forth the dollar amount of the civil 
penalty. If the Presiding Officer decides to assess a penalty different 
in amount from the penalty assessed in the Final Notice of Violation, 
the Initial Decision shall set forth the specific reasons for the 
increase or decrease.



Sec. 820.32  Final order.

    (a) Effect of Initial Decision. The Initial Decision shall be deemed 
filed as a Final Order thirty days after the filing of the Initial 
Decision unless the Secretary files a Final Order that modifies the 
Initial Decision or the Secretary files a Notice of Review.
    (b) Notice of review. If the Secretary files a Notice of Review, he 
shall file a Final Order as soon as practicable after completing his 
review. The Secretary may, at his discretion, order additional 
procedures, remand the matter or modify the remedy, including an 
increase or decrease in the amount of the civil penalty from the amount 
recommended to be assessed in the Initial Decision.
    (c) Payment of a civil penalty. The respondent shall pay the full 
amount of any civil penalty assessed in the Final Order within thirty 
(30) days after the Final Order is filed unless otherwise agreed by the 
parties.



Sec. 820.33  Default order.

    (a) Default. The Presiding Officer, upon motion by a party or the 
filing of a Notice of Intent to issue a Default Order sua sponte, may 
find a party to be in default if the party fails to comply with the 
provisions of this part or an order of the Presiding Officer. The 
alleged defaulting party shall have ten days to answer the motion or the 
Notice of Intent. No finding of default shall be made against the 
respondent unless the Director presents sufficient evidence to the 
Presiding Officer to establish a prima facie case against the 
respondent. Default by respondent constitutes, for purposes of the 
pending action only, an admission of all facts alleged in the Final 
Notice of Violation and a waiver of respondent's rights to an on-the-
record adjudication of such factual allegations. Default by the Director 
shall result in an order to dismiss the Final Notice of Violation with 
prejudice.
    (b) Effect of default order. When the Presiding Officer finds a 
default has occurred, he shall file a Default Order against the 
defaulting party. This order shall constitute an Initial Decision.
    (c) Contents of a default order. A Default Order shall include 
findings of fact showing the grounds for the order, conclusions 
regarding all material issues of fact, law or discretion, and the 
remedy.



Sec. 820.34  Accelerated decision.

    (a) General. The Presiding Officer, upon motion of any party or sua 
sponte, may at any time render an Accelerated Decision in favor of the 
Director or the respondent as to all or any part of the adjudication, 
without further hearing or upon such limited additional evidence, such 
as affidavits, as he may require, if no genuine issue of material fact 
exists and a party is entitled to judgment as a matter of law, as to all 
or any part of the adjudication. In addition, the Presiding Officer, 
upon motion of the respondent, may render at any time an Accelerated 
Decision to dismiss an action without further hearing or upon such 
limited additional evidence as he requires, on the basis of failure to 
establish a prima facie case or other grounds that show no right to 
relief on the part of the Director.
    (b) Effect of Accelerated Decision. (1) If an Accelerated Decision 
is rendered as to all the issues and claims in the adjudication, the 
decision constitutes an Initial Decision of the Presiding Officer, and 
shall be filed with the Docketing Clerk.
    (2) If an Accelerated Decision is rendered on less than all issues 
or claims in the adjudication, the Presiding Officer shall determine 
what material

[[Page 506]]

facts exist without substantial controversy and what material facts 
remain controverted in good faith. He shall thereupon file an 
interlocutory order specifying the facts that appear substantially 
uncontroverted, and the issues and claims upon which the adjudication 
will proceed.



Sec. 820.35  Ex parte discussions.

    At no time after a respondent has requested an on-the-record 
adjudication of the assessment of a civil penalty shall a DOE Official, 
or any person who is likely to advise a DOE Official in the decision on 
the case, discuss ex parte the merits of the proceeding with any 
interested person outside DOE, with any DOE staff member who performs a 
prosecutorial or investigative function in such proceeding or a 
factually related proceeding, or with any representative of such person. 
Any ex parte memorandum or other communication addressed to a DOE 
Official during the pendency of the proceeding and relating to the 
merits thereof, by or on behalf of any party shall be regarded as 
argument made in the proceeding and shall be served upon all other 
parties. Any oral communication shall be set forth in a written 
memorandum and served on all other parties. The other parties shall be 
given an opportunity to reply to such memorandum or communication.



Sec. 820.36  Filing, form, and service of documents.

    (a) Filing in an enforcement proceeding. The original and three 
copies of any document in an enforcement proceeding shall be filed with 
the Docketing Clerk commencing with the filing of a Preliminary Notice 
of Violation.
    (b) Form of documents in an enforcement proceeding. (1) Except as 
provided herein, or by order of the DOE Official, there are no specific 
requirements as to the form of documents filed in an enforcement 
proceeding.
    (2) The first page of every document shall contain a caption 
identifying the respondent and the docket number.
    (3) The original of any document (other than exhibits) shall be 
signed by the person filing it or by his counsel or other 
representative. The signature constitutes a representation by the signer 
that he has read the pleading, letter or other document, that to the 
best of his knowledge, information and belief, the statements made 
therein are true, and that it is not interposed for delay.
    (4) The initial document filed by any person shall contain his name, 
address and telephone number. Any changes in this information shall be 
communicated promptly to the Docketing Clerk and all participants to the 
proceeding. A person who fails to furnish such information and any 
changes thereto shall be deemed to have waived his right to notice and 
service under this part.
    (5) The Docketing Clerk may refuse to file any document that does 
not comply with this section. Written notice of such refusal, stating 
the reasons therefor, shall be promptly given to the person submitting 
the document. Such person may amend and resubmit any document refused 
for filing.



Sec. 820.37  Participation in an adjudication.

    (a) Parties. In an enforcement adjudication, the Director and the 
respondent shall be the only parties; provided that the Presiding 
Officer may permit a person to intervene as a party if the person 
demonstrates it could be liable in the event a civil penalty is 
assessed.
    (b) Appearances. Any party to an enforcement adjudication may appear 
in person or by counsel or other representative. A partner may appear on 
behalf of a partnership and an officer may appear on behalf of a 
corporation. Persons who appear as counsel or other representative must 
conform to the standards of conduct and ethics required of practitioners 
before the courts of the United States.
    (c) Amicus Curiae. Persons not parties to an enforcement 
adjudication who wish to file briefs may so move. The motion shall 
identify the interest of the person and shall state the reasons why the 
proposed amicus brief is desirable. If the motion is granted, the 
Presiding Officer shall issue an order setting the time for filing such 
brief. An amicus curiae is eligible to participate in any briefing after 
his motion is granted, and shall be served with all

[[Page 507]]

briefs, reply briefs, motions, and orders relating to issues to be 
briefed.



Sec. 820.38  Consolidation and severance.

    (a) Consolidation. The Presiding Officer may, by motion or sua 
sponte, consolidate any or all matters at issue in two or more 
enforcement adjudications under this part where there exists common 
parties or common questions of fact or law, consolidation would expedite 
and simplify consideration of the issues, and consolidation would not 
adversely affect the rights of parties engaged in otherwise separate 
adjudications.
    (b) Severance. The Presiding Officer may, by motion or sua sponte, 
for good cause shown order any enforcement adjudication severed with 
respect to any or all parties or issues.



Sec. 820.39  Motions.

    (a) General. All motions in an enforcement adjudication except those 
made orally, shall be in writing, state the grounds therefor with 
particularity, set forth the relief or order sought, and be accompanied 
by any affidavit, certificate, other evidence, or legal memorandum 
relied upon.
    (b) Answer to motions. Except as otherwise specified by a particular 
provision of this part or by the Presiding Officer, a party shall have 
the right to file a written answer to the motion of another party within 
10 days after the filing of such motion. The answer shall be accompanied 
by any affidavit, certificate, other evidence, or legal memorandum 
relied upon. If no answer is filed within the designated period, the 
party may be deemed to have waived any objection to the granting of the 
motion. The Presiding Officer may set a shorter or longer time for an 
answer, or make such other orders concerning the disposition of motions 
as he deems appropriate.
    (c) Decision. The Presiding Officer shall rule on a motion as soon 
as practicable after the filing of the answer. The decision of the 
Presiding Officer on any motion shall not be subject to administrative 
appeal.



                       Subpart C_Compliance Orders



Sec. 820.40  Purpose and scope.

    This subpart provides for the issuance of Compliance Orders to 
prevent, rectify or penalize violations of the Act, a Nuclear Statute, 
or a DOE Nuclear Safety Requirement and to require action consistent 
with the Act, a Nuclear Statute, or a DOE Nuclear Safety Requirement.



Sec. 820.41  Compliance order.

    The Secretary may issue to any person involved in a DOE nuclear 
activity a Compliance Order that:
    (a) Identifies a situation that violates, potentially violates, or 
otherwise is inconsistent with the Act, a Nuclear Statute, or a DOE 
Nuclear Safety Requirement;
    (b) Mandates a remedy or other action; and,
    (c) States the reasons for the remedy or other action.



Sec. 820.42  Final order.

    A Compliance Order is a Final Order that constitutes a DOE Nuclear 
Safety Requirement that is effective immediately unless the Order 
specifies a different effective date.



Sec. 820.43  Appeal.

    Within fifteen days of the issuance of a Compliance Order, the 
recipient of the Order may request the Secretary to rescind or modify 
the Order. A request shall not stay the effectiveness of a Compliance 
Order unless the Secretary issues an order to that effect.



                        Subpart D_Interpretations



Sec. 820.50  Purpose and scope.

    This subpart provides for interpretations of the Act, Nuclear 
Statutes, and DOE Nuclear Safety Requirements. Any written or oral 
response to any written or oral question which is not provided pursuant 
to this subpart does not constitute an interpretation and does not 
provide any basis for action inconsistent with the Act, a Nuclear 
Statute, or a DOE Nuclear Safety Requirement.

[[Page 508]]



Sec. 820.51  General Counsel.

    The General Counsel shall be the DOE Official responsible for 
formulating and issuing any interpretation concerning the Act, a Nuclear 
Statute or a DOE Nuclear Safety Requirement.



Sec. 820.52  Procedures.

    The General Counsel may utilize any procedure which he deems 
appropriate to comply with his responsibilities under this subpart. All 
interpretations issued under this subpart must be filed with the Office 
of the Docketing Clerk which shall maintain a docket for 
interpretations.



                       Subpart E_Exemption Relief



Sec. 820.60  Purpose and scope.

    This subpart provides for exemption relief from provisions of DOE 
Nuclear Safety Requirements at nuclear facilities.



Sec. 820.61  Secretarial officer.

    The Secretarial Officer who is primarily responsible for the 
activity to which a DOE Nuclear Safety Requirement relates may grant a 
temporary or permanent exemption from that requirement as requested by 
any person subject to its provisions; provided that, the Secretarial 
Officer responsible for environment, safety and health matters shall 
exercise this authority with respect to provisions relating to 
radiological protection of workers, the public and the environment. This 
authority may not be further delegated.



Sec. 820.62  Criteria.

    The criteria for granting an exemption to a DOE Nuclear Safety 
Requirement are determinations that the exemption:
    (a) Would be authorized by law;
    (b) Would not present an undue risk to public health and safety, the 
environment, or facility workers;
    (c) Would be consistent with the safe operation of a DOE nuclear 
facility; and
    (d) Involves special circumstances, including the following:
    (1) Application of the requirement in the particular circumstances 
conflicts with other requirements; or
    (2) Application of the requirement in the particular circumstances 
would not serve or is not necessary to achieve its underlying purpose, 
or would result in resource impacts which are not justified by the 
safety improvements; or
    (3) Application of the requirement would result in a situation 
significantly different than that contemplated when the requirement was 
adopted, or that is significantly different from that encountered by 
others similarly situated; or
    (4) The exemption would result in benefit to human health and safety 
that compensates for any detriment that may result from the grant of the 
exemption; or
    (5) Circumstances exist which would justify temporary relief from 
application of the requirement while taking good faith action to achieve 
compliance; or
    (6) There is present any other material circumstance not considered 
when the requirement was adopted for which it would be in the public 
interest to grant an exemption.



Sec. 820.63  Procedures.

    The Secretarial Officer shall utilize any procedures deemed 
necessary and appropriate to comply with his responsibilities under this 
subpart. All exemption decisions must set forth in writing the reasons 
for granting or denying the exemption, and if granted, the basis for the 
determination that the criteria in Sec. 820.62 have been met and the 
terms of the exemption. All exemption decisions must be filed with the 
Office of the Docketing Clerk which shall maintain a docket for 
exemption decisions issued pursuant to this subpart.



Sec. 820.64  Terms and conditions.

    An exemption may contain appropriate terms and conditions including, 
but not limited to, provisions that :
    (a) Limit its duration;
    (b) Require alternative action;
    (c) Require partial compliance; or
    (d) Establish a schedule for full or partial compliance.



Sec. 820.65  Implementation plan.

    With respect to a DOE Nuclear Safety Requirement for which there is 
no

[[Page 509]]

regulatory provision for an implementation plan or schedule, an 
exemption may be granted to establish an implementation plan which 
reasonably demonstrates that full compliance with the requirement will 
be achieved within two years of the effective date of the requirement 
without a determination of special circumstances under Sec. 820.62(d).



Sec. 820.66  Appeal.

    Within fifteen (15) days of the filing of an exemption decision by a 
Secretarial Officer, the person requesting the exemption may file a 
Request to Review with the Secretary, or the Secretary may file, sua 
sponte, a Notice of Review. The Request to Review shall state 
specifically the respects in which the exemption determination is 
claimed to be erroneous, the grounds of the request, and the relief 
requested.



Sec. 820.67  Final order.

    If no filing is made under Sec. 820.66, an exemption decision 
becomes a Final Order fifteen (15) days after it is filed by a 
Secretarial Officer. If filing is made under Sec. 820.66, an exemption 
decision becomes a Final Order 45 days after it is filed by a 
Secretarial Officer, unless the Secretary stays the effective date or 
issues a Final Order that modifies the decision.



                      Subpart F_Criminal Penalties



Sec. 820.70  Purpose and scope.

    This subpart provides for the identification of criminal violations 
of the Act or DOE Nuclear Safety Requirements and the referral of such 
violations to the Department of Justice.



Sec. 820.71  Standard.

    If a person subject to the Act or the DOE Nuclear Safety 
Requirements has, by act or omission, knowingly and willfully violated, 
caused to be violated, attempted to violate, or conspired to violate any 
section of the Act or any applicable DOE Nuclear Safety Requirement, the 
person shall be subject to criminal sanctions under the Act.



Sec. 820.72  Referral to the Attorney General.

    If there is reason to believe a criminal violation of the Act or the 
DOE Nuclear Safety Requirements has occurred, DOE may refer the matter 
to the Attorney General of the United States for investigation or 
prosecution.



                        Subpart G_Civil Penalties

    Source: 62 FR 46184, Sept. 2, 1997, unless otherwise noted.



Sec. 820.80  Basis and purpose.

    This subpart implements the Federal Civil Penalties Inflation 
Adjustment Act of 1990 (the Act) (Pub. L. 101-410), as amended by the 
Debt Collection Improvement Act of 1996 (Pub. L. 104-134, section 
31001). 28 U.S.C. 2461 note. As amended, the Act requires each agency 
head to adjust by regulation each civil monetary penalty provided by law 
within the jurisdiction of the Federal agency by the inflation 
adjustment specified in 28 U.S.C. 2461 note. This subpart increases the 
civil penalty amount specified in 42 U.S.C. 2282a.



Sec. 820.81  Amount of penalty.

    Any person subject to a penalty under 42 U.S.C. 2282a shall be 
subject to a civil penalty in an amount not to exceed $150,000 for each 
such violation. If any violation under 42 U.S.C. 2282a is a continuing 
one, each day of such violation shall constitute a separate violation 
for the purpose of computing the applicable civil penalty.

[62 FR 46184, Sept. 2, 1997, as amended at 74 FR 66033, Dec.14, 2009]



  Sec. Appendix A to Part 820--General Statement of Enforcement Policy

                             I. Introduction

    (a) This policy statement sets forth the general framework through 
which the U.S. Department of Energy (DOE) will seek to ensure compliance 
with its enforceable nuclear safety regulations and orders (hereafter 
collectively referred to as DOE Nuclear Safety Requirements) and, in 
particular, exercise the civil penalty authority provided to DOE in the 
Price Anderson Amendments Act of 1988, 42 U.S.C. 2282a (PAAA). The 
policy set forth herein is applicable to violations of DOE Nuclear 
Safety Requirements by DOE contractors who are indemnified under the

[[Page 510]]

Price Anderson Act, 42 U.S.C. 2210(d), and their subcontractors and 
suppliers (hereafter collectively referred to as DOE contractors). This 
policy statement is not a regulation and is intended only to provide 
general guidance to those persons subject to DOE's Nuclear Safety 
Requirements as specified in the PAAA. It is not intended to establish a 
``cookbook'' approach to the initiation and resolution of situations 
involving noncompliance with DOE Nuclear Safety Requirements. Rather, 
DOE intends to consider the particular facts of each noncompliance 
situation in determining whether enforcement sanctions are appropriate 
and, if so, the appropriate magnitude of those sanctions. DOE may well 
deviate from this policy statement when appropriate in the circumstances 
of particular cases. This policy statement is not applicable to 
activities and facilities covered under E.O. 12344, 42 U.S.C. 7158 note, 
pertaining to Naval nuclear propulsion.
    (b) Both the Department of Energy Organization Act, 42 U.S.C. 7101, 
and the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011, require 
DOE to protect the public health and safety, as well as the safety of 
workers at DOE facilities, in conducting its nuclear activities, and 
grant DOE broad authority to achieve this goal.
    (c) The DOE goal in the compliance arena is to enhance and protect 
the radiological health and safety of the public and worker at DOE 
facilities by fostering a culture among both the DOE line organizations 
and the contractors that activity seeks to attain and sustain compliance 
with DOE Nuclear Safety Requirements. The enforcement program and policy 
have been developed with the express purpose of achieving safety 
inquisitiveness and voluntary compliance. DOE will establish effective 
administrative processes and positive incentives to the contractors for 
the open and prompt identification and reporting of noncompliances, and 
the initiation of comprehensive corrective actions to resolve both the 
noncompliance conditions and the program or process deficiencies that 
led to noncompliance.
    (d) In the development of the DOE enforcement policy, DOE recognizes 
that the reasonable exercise of its enforcement authority can help to 
reduce the likelihood of serious incidents. This can be accomplished by 
providing greater emphasis on a culture of safety in existing DOE 
operations, and strong incentives for contractors to identify and 
correct noncompliance conditions and processes in order to protect human 
health and the environment. DOE wants to facilitate, encourage, and 
support contractor initiatives for the prompt identification and 
correction of problems. These initiatives and activities will be duly 
considered in exercising enforcement discretion.
    (e) The PAAA provides DOE with the authority to compromise, modify, 
or remit civil penalties with or without conditions. In implementing the 
PAAA, DOE will carefully consider the facts of each case of 
noncompliance and will exercise appropriate discretion in taking any 
enforcement action. Part of the function of a sound enforcement program 
is to assure a proper and continuing level of safety vigilance. The 
reasonable exercise of enforcement authority will be facilitated by the 
appropriate application of safety requirements to nuclear facilities and 
by promoting and coordinating the proper contractor and DOE safety 
compliance attitude toward those requirements.

                               II. Purpose

    The purpose of the DOE enforcement program is to promote and protect 
the radiological health and safety of the public and workers at DOE 
facilities by:
    a. Ensuring compliance by DOE contractors with applicable DOE 
Nuclear Safety Requirements.
    b. Providing positive incentives for a DOE contractor's:
    (1) Timely self-identification of nuclear safety deficiencies,
    (2) Prompt and complete reporting of such deficiencies to DOE,
    (3) Root cause analyses of nuclear safety deficiencies,
    (4) Prompt correction of nuclear safety deficiencies in a manner 
which precludes recurrence, and
    (5) Identification of modifications in practices or facilities that 
can improve public or worker radiological health and safety.
    c. Deterring future violations of DOE requirements by a DOE 
contractor.
    d. Encouraging the continuous overall improvement of operations at 
DOE nuclear facilities.

                        III. Statutory Authority

    Section 17 of the PAAA makes most DOE contractors covered by the DOE 
Price-Anderson indemnification system, and their subcontractors and 
suppliers, subject to civil penalties for violations of applicable DOE 
nuclear safety rules, regulations and orders. 42 U.S.C. 2282a. 
Furthermore, section 18 of the PAAA makes all employees of DOE 
contractors, and their subcontractors and suppliers, subject to criminal 
penalties, including monetary penalties and imprisonment, for knowing 
and willful violations of applicable DOE nuclear safety rules, 
regulations and orders. 42 U.S.C. 2273(c). Suspected, or alleged, 
criminal violations are referred to the Department of Justice for 
appropriate action. 42 U.S.C. 2271. Therefore, DOE's enforcement 
authority and policy will apply only to civil penalties since decisions 
on criminal violations are the responsibility of

[[Page 511]]

the Department of Justice. However, referral of a case to the Department 
of Justice does not preclude DOE from taking civil enforcement action in 
accordance with this policy statement. Such actions will be coordinated 
with the Department of Justice to the extent practicable.

                          IV. Responsibilities

    (a) The Director, as the principal enforcement officer of DOE, has 
been delegated the authority to:
    (1) Conduct enforcement inspections, investigations, and 
conferences;
    (2) Issue Notices of Violations and proposed civil penalties, 
Enforcement Letters, Consent Orders, and subpoenas; and
    (3) Issue orders to compel attendance and disclosure of information 
or documents obtained during an investigation or inspection.
    (b) The NNSA Administrator, pursuant to section 3212 (b)(9) of 
Public Law 106-65 (codified at 50 U.S.C. 2402 (b)(9)), as amended, has 
authority over and responsibility for environment, safety and health 
operations within NNSA and is authorized to sign, issue and serve the 
following actions that direct NNSA contractors:
    (1) Subpoenas;
    (2) Orders to compel attendance;
    (3) Disclosure of information or documents obtained during an 
investigation or inspection;
    (4) Preliminary Notices of Violations; and
    (5) Final Notices of Violations.
    The NNSA Administrator acts after consideration of the Director's 
recommendation.

                         V. Procedural Framework

    (a) 10 CFR part 820 sets forth the procedures DOE will use in 
exercising its enforcement authority, including the issuance of Notices 
of Violation and the resolution of contested enforcement actions in the 
event a DOE contractor elects to litigate contested issues before an 
Administrative Law Judge.
    (b) Pursuant to 10 CFR 820.22, the Director initiates the civil 
penalty process by issuing a Preliminary Notice of Violation and 
Proposed Civil Penalty (PNOV). The DOE contractor is required to respond 
in writing to the PNOV, either admitting the violation and waiving its 
right to contest the proposed civil penalty and paying it, admitting the 
violation but asserting the existence of mitigating circumstances that 
warrant either the total or partial remission of the civil penalty, or 
denying that the violation has occurred and providing the basis for its 
belief that the PNOV is incorrect. After evaluation of the DOE 
contractor's response, the Director of Enforcement may determine that no 
violation has occurred, that the violation occurred as alleged in the 
PNOV but that the proposed civil penalty should be remitted in whole or 
in part, or that the violation occurred as alleged in the PNOV and that 
the proposed civil penalty is appropriate notwithstanding the asserted 
mitigating circumstances. In the latter two instances, the Director will 
issue a Final Notice of Violation (FNOV) or an FNOV and Proposed Civil 
Penalty.
    (c) An opportunity to challenge a proposed civil penalty either 
before an Administrative Law Judge or in a United States District Court 
is provided in the PAAA, 42 U.S.C. 2282a(c), and 10 CFR part 820 sets 
forth the procedures associated with an administrative hearing, should 
the contractor opt for that method of challenging the proposed civil 
penalty. A formal administrative enforcement proceeding pursuant to 
section 554 of the Administrative Procedures Act is not initiated until 
the DOE contractor against which a civil penalty has been proposed 
requests an administrative hearing rather than waiving its right to 
contest the civil penalty and paying it. However, it should be 
emphasized that DOE encourages the voluntary resolution of a 
noncompliance situation at any time, either informally prior to the 
initiation of an administrative proceeding or by consent order after a 
formal proceeding has begun.

                       VI. Severity of Violations

    (a) Violations of DOE Nuclear Safety Requirements have varying 
degrees of safety significance. Therefore, the relative importance of 
each violation must be identified as the first step in the enforcement 
process. Violations of DOE Nuclear Safety Requirements are categorized 
in three levels of severity to identify their relative safety 
significance, and Notices of Violation are issued for noncompliance 
which, when appropriate, propose civil penalties commensurate with the 
severity level of the violation(s) involved.
    (b) Severity Level I has been assigned to violations that are the 
most significant and Severity Level III violations are the least 
significant. Severity Level I is reserved for violations of DOE Nuclear 
Safety Requirements which involve actual or high potential for adverse 
impact on the safety of the public or workers at DOE facilities. 
Severity level II violations represent a significant lack of attention 
or carelessness toward responsibilities of DOE contractors for the 
protection of public or worker safety which could, if uncorrected, 
potentially lead to an adverse impact on public or worker safety at DOE 
facilities. Severity Level III violations are less serious but are of 
more than minor concern: i.e., if left uncorrected, they could lead to a 
more serious concern. In some cases, violations may be evaluated in the 
aggregate and a single severity level assigned for a group of 
violations.
    (c) Isolated minor violations of DOE Nuclear Safety Requirements 
will not be the

[[Page 512]]

subject of formal enforcement action through the issuance of a Notice of 
Violation. However, these minor violations will be identified as 
noncompliances and tracked to assure that appropriate corrective/
remedial action is taken to prevent their recurrence, and evaluated to 
determine if generic or specific problems exist. If circumstances 
demonstrate that a number of related minor noncompliances have occurred 
in the same time frame (e.g. all identified during the same assessment), 
or that related minor noncompliances have recurred despite prior notice 
to the DOE contractor and sufficient opportunity to correct the problem, 
DOE may choose in its discretion to consider the noncompliances in the 
aggregate as a more serious violation warranting a Severity Level III 
designation, a Notice of Violation and a possible civil penalty.
    (d) The severity level of a violation will be dependent, in part, on 
the degree of culpability of the DOE contractor with regard to the 
violation. Thus, inadvertent or negligent violations will be viewed 
differently than those in which there is gross negligence, deception or 
wilfulness. In addition to the significance of the underlying violation 
and level of culpability involved, DOE will also consider the position, 
training and experience of the person involved in the violation. Thus, 
for example, a violation may be deemed to be more significant if a 
senior manager of an organization is involved rather than a foreman or 
non-supervisory employee. In this regard, while management involvement, 
direct or indirect, in a violation may lead to an increase in the 
severity level of a violation and proposed civil penalty, the lack of 
such involvement will not constitute grounds to reduce the severity 
level of a violation or mitigate a civil penalty. Allowance of 
mitigation in such circumstances could encourage lack of management 
involvement in DOE contractor activities and a decrease in protection of 
public and worker health and safety.
    (e) Other factors which will be considered by DOE in determining the 
appropriate severity level of a violation are the duration of the 
violation, the past performance of the DOE contractor in the particular 
activity area involved, whether the DOE contractor had prior notice of a 
potential problem, and whether there are multiple examples of the 
violation in the same time frame rather than an isolated occurrence. The 
relative weight given to each of these factors in arriving at the 
appropriate severity level will be dependent on the circumstances of 
each case.
    (f) DOE expects contractors to provide full, complete, timely, and 
accurate information and reports. Accordingly, the severity level of a 
violation involving either failure to make a required report or 
notification to the DOE or an untimely report or notification, will be 
based upon the significance of, and the circumstances surrounding, the 
matter that should have been reported. A contractor will not normally be 
cited for a failure to report a condition or event unless the contractor 
was actually aware, or should have been aware of the condition or event 
which it failed to report.

                      VII. Enforcement Conferences

    (a) Should DOE determine, after completion of all assessment and 
investigation activities associated with a potential or alleged 
violation of DOE Nuclear Safety Requirements, that there is a reasonable 
basis to believe that a violation has actually occurred, and the 
violation may warrant a civil penalty or issuance of an enforcement 
order, DOE will normally hold an enforcement conference with the DOE 
contractor involved prior to taking enforcement action. DOE may also 
elect to hold an enforcement conference for potential violations which 
would not ordinarily warrant a civil penalty or enforcement order but 
which could, if repeated, lead to such action. The purpose of the 
enforcement conference is to assure the accuracy of the facts upon which 
the preliminary determination to consider enforcement action is based, 
discuss the potential or alleged violations, their significance and 
causes, and the nature of and schedule for the DOE contractor's 
corrective actions, determine whether there are any aggravating or 
mitigating circumstances, and obtain other information which will help 
determine the appropriate enforcement action.
    (b) DOE contractors will be informed prior to a meeting when that 
meeting is considered to be an enforcement conference. Such conferences 
are informal mechanisms for candid pre-decisional discussions regarding 
potential or alleged violations and will not normally be open to the 
public. In circumstances for which immediate enforcement action is 
necessary in the interest of public or worker health and safety, such 
action will be taken prior to the enforcement conference, which may 
still be held after the necessary DOE action has been taken.

                        VIII. Enforcement Letter

    (a) In cases where DOE has decided not to conduct an investigation 
or inspection or issue a Preliminary Notice of Violation (PNOV), DOE may 
send an Enforcement Letter to the contractor, signed by the Director. 
Enforcement Letters issued to NNSA contractors will be coordinated with 
the Principal Deputy Administrator of the NNSA prior to issuance. The 
Enforcement Letter is intended to communicate the basis of the decision 
not to pursue enforcement action for a noncompliance. The Enforcement 
Letter is intended to inform contractors of the desired level of nuclear 
safety performance. It may be used when DOE concludes the specific

[[Page 513]]

noncompliance at issue is not of the level of significance warranted to 
conduct an investigation or inspection or for issuance of a PNOV. Even 
where a noncompliance may be significant, the Enforcement Letter 
recognizes that the contractor's actions may have attenuated the need 
for enforcement action. The Enforcement Letter will typically recognize 
how the contractor handled the circumstances surrounding the 
noncompliance, address additional areas requiring the contractor's 
attention, and address DOE's expectations for corrective action.
    (b) In general, Enforcement Letters communicate DOE's expectations 
with respect to any aspect of the requirements contained in the 
Department's nuclear safety rules, including identification and 
reporting of issues, corrective actions, and implementation of the 
contractor's nuclear safety program. DOE might, for example, wish to 
recognize some action of the contractor that is of particular benefit to 
nuclear safety performance that is a candidate for emulation by other 
contractors. On the other hand, DOE may wish to bring a program 
shortcoming to the attention of the contractor that, but for the lack of 
nuclear safety significance of the immediate issue, might have resulted 
in the issuance of a PNOV. An Enforcement Letter is not an enforcement 
action.
    (c) With respect to many noncompliances, DOE may decide not to send 
an Enforcement Letter. When DOE decides that a contractor has 
appropriately corrected a noncompliance or that the significance of the 
noncompliance is sufficiently low, it may close out its review simply 
through an annotation in the DOE Noncompliance Tracking System (NTS). A 
closeout of a noncompliance with or without an Enforcement Letter may 
only take place after DOE has confirmed that corrective actions have 
been completed. Closeout of any NNSA contractor noncompliance will be 
coordinated with NNSA prior to closeout.

                         IX. Enforcement Actions

    a. This section describes the enforcement sanctions available to DOE 
and specifies the conditions under which each may be used. The basic 
sanctions are Notices of Violation and civil penalties. In determining 
whether to impose enforcement sanctions, DOE will consider enforcement 
actions taken by other Federal or State regulatory bodies having 
concurrent jurisdiction, e.g., instances which involve NRC licensed 
entities which are also DOE contractors, and in which the NRC exercises 
its own enforcement authority.
    b. The nature and extent of the enforcement action is intended to 
reflect the seriousness of the violation involved. For the vast majority 
of violations for which DOE assigns severity levels as described 
previously, a Notice of Violation will be issued, requiring a formal 
response from the recipient describing the nature of and schedule for 
corrective actions it intends to take regarding the violation. 
Administrative actions, such as determination of award fees where DOE 
contracts provide for such determinations, will be considered separately 
from any civil penalties that may be imposed under this Enforcement 
Policy. Likewise, imposition of a civil penalty will be based on the 
circumstances of each case, unaffected by any award fee determination.

                         1. Notice of Violation

    a. A Notice of Violation (either a Preliminary or Final Notice) is a 
document setting forth the conclusion of the DOE Office of Nuclear 
Safety and Environment that one or more violations of DOE Nuclear Safety 
Requirements has occurred. Such a notice normally requires the recipient 
to provide a written response which may take one of several positions 
described in Section V of this policy statement. In the event that the 
recipient concedes the occurrence of the violation, it is required to 
describe corrective steps which have been taken and the results 
achieved; remedial actions which will be taken to prevent recurrence; 
and the date by which full compliance will be achieved.
    b. DOE will use the Notice of Violation as the standard method for 
formalizing the existence of a violation and, in appropriate cases as 
described in this section, the notice of violation will be issued in 
conjunction with the proposed imposition of a civil penalty. In certain 
limited instances, as described in this section, DOE may refrain from 
the issuance of an otherwise appropriate Notice of Violation. However, a 
Notice of Violation will virtually always be issued for willful 
violations, if past corrective actions for similar violations have not 
been sufficient to prevent recurrence and there are no other mitigating 
circumstances, or if the circumstances otherwise warrant increasing 
Severity Level III violations to a higher severity level.
    c. DOE contractors are not ordinarily cited for violations resulting 
from matters not within their control, such as equipment failures that 
were not avoidable by reasonable quality assurance measures, proper 
maintenance, or management controls. With regard to the issue of 
funding, however, DOE does not consider an asserted lack of funding to 
be a justification for noncompliance with DOE Nuclear Safety 
Requirements.
Should a contractor believe that a shortage of funding precludes it from 
achieving compliance with one or more DOE Nuclear Safety Requirements, 
it must pursue one of two alternative courses of action. First, it may 
request, in writing, an exemption from the requirement(s) in question 
from the appropriate Secretarial Officer (SO), explicitly addressing the 
criteria for exemptions set forth

[[Page 514]]

in 10 CFR 820.62. A justification for continued operation for the period 
during which the exemption request is being considered should also be 
submitted. In such a case, the SO must grant or deny the request in 
writing, explaining the rationale for the decision. Second, if the 
criteria for approval of an exemption cannot be demonstrated, the 
contractor, in conjunction with the SO, must take appropriate steps to 
modify, curtail, suspend or cease the activities which cannot be 
conducted in compliance with the DOE Nuclear Safety Requirement(s) in 
question.
    d. DOE expects the contractors which operate its facilities to have 
the proper management and supervisory systems in place to assure that 
all activities at DOE facilities, regardless of who performs them, are 
carried out in compliance with all DOE Nuclear Safety Requirements. 
Therefore, contractors are normally held responsible for the acts of 
their employees and subcontractor employees in the conduct of activities 
at DOE facilities. Accordingly, this policy should not be construed to 
excuse personnel errors.
    e. Finally, certain contractors are explicitly exempted from the 
imposition of civil penalties pursuant to the provisions of the PAAA, 42 
U.S.C. 2282a(d), for activities conducted at specified facilities. See 
10 CFR 820.20(c). In addition, in fairness to non-profit educational 
institutions, the Department has determined that they should be likewise 
exempted. See 10 CFR 820.20(d). However, compliance with DOE Nuclear 
Safety Requirements is no less important for these facilities than for 
other facilities in the DOE complex which work with, store or dispose of 
radioactive materials. Indeed, the exempted contractors conduct some of 
the most important nuclear-related research and development activities 
performed for the Department. Therefore, in order to serve the purposes 
of this enforcement policy and to emphasize the importance the 
Department places on compliance with all of its nuclear safety 
requirements, DOE intends to issue Notices of Violation to the exempted 
contractors and non-profit educational institutions when appropriate 
under this policy statement, notwithstanding the statutory and 
regulatory exemptions from the imposition of civil penalties.

                            2. Civil Penalty

    a. A civil penalty is a monetary penalty that may be imposed for 
violations of applicable DOE Nuclear Safety Requirements, including 
Compliance Orders. See 10 CFR 820.20(b). Civil penalties are designed to 
emphasize the need for lasting remedial action, deter future violations, 
and underscore the importance of DOE contractor self-identification, 
reporting and correction of violations of DOE Nuclear Safety 
Requirements.
    b. Absent mitigating circumstances as described below, or 
circumstances otherwise warranting the exercise of enforcement 
discretion by DOE as described in this section, civil penalties will be 
proposed for Severity Level I and II violations. Civil penalties will be 
proposed for Severity Level III violations which are similar to previous 
violations for which the contractor did not take effective corrective 
action. ``Similar'' violations are those which could reasonably have 
been expected to have been prevented by corrective action for the 
previous violation. DOE normally considers civil penalties only for 
similar Severity Level III violations that occur over a reasonable 
period of time to be determined at the discretion of DOE.
    c. DOE will impose different base level civil penalties considering 
the severity level of the violation(s) by Price-Anderson indemnified 
contractors. Table 1 shows the daily base civil penalties for the 
various categories of severity levels. However, as described above in 
Section IV, the imposition of civil penalties will also take into 
account the gravity, circumstances, and extent of the violation or 
violations and, with respect to the violator, any history of prior 
similar violations and the degree of culpability and knowledge.
    d. Regarding the factor of ability of DOE contractors to pay the 
civil penalties, it is not DOE's intention that the economic impact of a 
civil penalty be such that it puts a DOE contractor out of business. 
Contract termination, rather than civil penalties, is used when the 
intent is to terminate these activities. The deterrent effect of civil 
penalties is best served when the amount of such penalties takes this 
factor into account. However, DOE will evaluate the relationship of 
affiliated entities to the contractor (such as parent corporations) when 
it asserts that it cannot pay the proposed penalty.
    e. DOE will review each case involving a proposed civil penalty on 
its own merits and adjust the base civil penalty values upward or 
downward appropriately. As indicated above, Table 1 identifies the daily 
base civil penalty values for different severity levels. After 
considering all relevant circumstances, civil penalties may be escalated 
or mitigated based upon the adjustment factors described below in this 
section. In no instance will a civil penalty for any one violation 
exceed the statutory limit. However, it should be emphasized that if the 
DOE contractor is or should have been aware of a violation and has not 
reported it to DOE and taken corrective action despite an opportunity to 
do so, each day the condition existed may be considered as a separate 
violation and, as such, subject to a separate civil penalty. Further, as 
described in this section, the duration of a violation will be taken 
into account in determining the appropriate severity level of the base 
civil penalty.

[[Page 515]]



              Table 1--Severity Level Base Civil Penalties
------------------------------------------------------------------------
                                                              Base civil
                                                               penalty
                                                                amount
                                                             (percentage
                       Severity level                         of maximum
                                                                civil
                                                             penalty per
                                                              violation
                                                               per day)
------------------------------------------------------------------------
I..........................................................         100
II.........................................................          50
III........................................................          10
------------------------------------------------------------------------

                          3. Adjustment Factors

    a. DOE's enforcement program is not an end in itself, but a means to 
achieve compliance with DOE Nuclear Safety Requirements, and civil 
penalties are not collected to swell the coffers of the United States 
Treasury, but to emphasize the importance of compliance and to deter 
future violations. The single most important goal of the DOE enforcement 
program is to encourage early identification and reporting of nuclear 
safety deficiencies and violations of DOE Nuclear Safety Requirements by 
the DOE contractors themselves rather than by DOE, and the prompt 
correction of any deficiencies and violations so identified. DOE 
believes that DOE contractors are in the best position to identify and 
promptly correct noncompliance with DOE Nuclear Safety Requirements. DOE 
expects that these contractors should have in place internal compliance 
programs which will ensure the detection, reporting and prompt 
correction of nuclear safety-related problems that may constitute, or 
lead to, violations of DOE Nuclear Safety Requirements before, rather 
than after, DOE has identified such violations. Thus, DOE contractors 
will almost always be aware of nuclear safety problems before they are 
discovered by DOE. Obviously, public and worker health and safety is 
enhanced if deficiencies are discovered (and promptly corrected) by the 
DOE contractor, rather than by DOE, which may not otherwise become aware 
of a deficiency until later on, during the course of an inspection, 
performance assessment, or following an incident at the facility. Early 
identification of nuclear safety-related problems by DOE contractors has 
the added benefit of allowing information which could prevent such 
problems at other facilities in the DOE complex to be shared with all 
appropriate DOE contractors.
    b. Pursuant to this enforcement philosophy, DOE will provide 
substantial incentive for the early self-identification, reporting and 
prompt correction of problems which constitute, or could lead to, 
violations of DOE Nuclear Safety Requirements. Thus, application of the 
adjustment factors set forth below may result in no civil penalty being 
assessed for violations that are identified, reported, and promptly and 
effectively corrected by the DOE contractor.
    c. On the other hand, ineffective programs for problem 
identification and correction are unacceptable. Thus, for example, where 
a contractor fails to disclose and promptly correct violations of which 
it was aware or should have been aware, substantial civil penalties are 
warranted and may be sought, including the assessment of civil penalties 
for continuing violations on a per day basis.
    d. Further, in cases involving willfulness, flagrant DOE-identified 
violations, repeated poor performance in an area of concern, or serious 
breakdown in management controls, DOE intends to apply its full 
statutory enforcement authority where such action is warranted.

                     4. Identification and Reporting

    Reduction of up to 50% of the base civil penalty shown in Table 1 
may be given when a DOE contractor identifies the violation and promptly 
reports the violation to the DOE. In weighing this factor, consideration 
will be given to, among other things, the opportunity available to 
discover the violation, the ease of discovery and the promptness and 
completeness of any required report. No consideration will be given to a 
reduction in penalty if the DOE contractor does not take prompt action 
to report the problem to DOE upon discovery, or if the immediate actions 
necessary to restore compliance with DOE Nuclear Safety Requirements or 
place the facility or operation in a safe configuration are not taken.

               5. Self-Identification and Tracking Systems

    a. DOE strongly encourages contractors to self-identify 
noncompliances with DOE Nuclear Safety Requirements before the 
noncompliances lead to a string of similar and potentially more 
significant events or consequences. When a contractor identifies a 
noncompliance through its own self-monitoring activity, DOE will 
normally allow a reduction in the amount of civil penalties, regardless 
of whether prior opportunities existed for contractors to identify the 
noncompliance. DOE will normally not allow a reduction in civil 
penalties for self-identification if significant DOE intervention was 
required to induce the contractor to report a noncompliance.
    b. Self-identification of a noncompliance is possibly the single 
most important factor in considering a reduction in the civil penalty 
amount. Consideration of self-identification is linked to, among other 
things, whether prior opportunities existed to discover the violation, 
and if so, the age and number of such opportunities; the extent to which 
proper contractor controls should have identified

[[Page 516]]

or prevented the violation; whether discovery of the violation resulted 
from a contractor's self-monitoring activity; the extent of DOE 
involvement in discovering the violation or in prompting the contractor 
to identify the violation; and the promptness and completeness of any 
required report. Self-identification is also considered by DOE in 
deciding whether to pursue an investigation.
    c. DOE has established a voluntary Noncompliance Tracking System 
(NTS) which allows contractors to elect to report noncompliances. In the 
guidance document supporting the NTS (DOE-HDBK-1089-95), DOE has 
established reporting thresholds for reporting items of noncompliance of 
potentially greater safety significance into the NTS. Contractors may, 
however, use their own self-tracking systems to track noncompliances 
below the reporting threshold. This self-tracking is considered to be 
acceptable self-reporting as long as DOE has access to the contractor's 
system and the contractor's system notes the item as a noncompliance 
with a DOE Nuclear Safety Requirement. For noncompliances that are below 
the reportability thresholds, DOE will credit contractor self-tracking 
as representing self-reporting. If an item is not reported in NTS but 
only tracked in the contractor's system and DOE subsequently finds the 
facts and their safety significance have been significantly 
mischaracterized, DOE will not credit the internal tracking as 
representing appropriate self-reporting.

                        6. Self-Disclosing Events

    a. DOE expects contractors to demonstrate acceptance of 
responsibility for safety of the public, workers, and the environment 
and to proactively identify noncompliance conditions in their programs 
and processes. In deciding whether to reduce any civil penalty proposed 
for violations revealed by the occurrence of a self-disclosing event, 
DOE will consider the ease with which a contractor could have discovered 
the noncompliance and the prior opportunities that existed to discover 
the noncompliance. When the occurrence of an event discloses 
noncompliances that the contractor could have or should have identified 
before the event, DOE will not generally allow a reduction in civil 
penalties for self-identification, even if the underlying noncompliances 
were reported to DOE. If a contractor simply reacts to events that 
disclose potentially significant consequences or downplays 
noncompliances which did not result in significant consequences to 
workers, the public, and the environment, such contractor actions do not 
lead to the improvement in nuclear safety contemplated by the Act.
    b. The key test is whether the contractor reasonably could have 
detected any of the underlying noncompliances that contributed to the 
event. Examples of events that provide opportunities to identify 
noncompliances include, but are not limited to:
    (1) prior notifications of potential problems such as those from DOE 
operational experience publications or vendor equipment deficiency 
reports;
    (2) normal surveillance, quality assurance assessments, and post-
maintenance testing;
    (3) readily observable parameter trends; and
    (4) contractor employee or DOE observations of potential safety 
problems. Failure to utilize these types of events and activities to 
address noncompliances may result in higher civil penalty assessments or 
a DOE decision not to reduce civil penalty amounts.
    c. For example, a critique of the event might find that one of the 
root causes was a lack of clarity in a Radiation Work Permit (RWP) which 
led to improper use of anti-contamination clothing and resulting uptake 
of contamination by the individual. DOE could subsequently conclude that 
no reduction in civil penalties for self-identification should be 
allowed since the event itself disclosed the inadequate RWP and the 
contractor could have, through proper independent assessment or by 
fostering a questioning attitude by its workers and supervisors, 
identified the inadequate RWP before the event.
    d. Alternatively, if, following a self-disclosing event, DOE found 
that the contractor's processes and procedures were adequate and the 
contractor's personnel generally behaved in a manner consistent with the 
contractor's processes and procedures, DOE could conclude that the 
contractor could not have been reasonably expected to find the single 
procedural noncompliance that led to the event and thus, might allow a 
reduction in civil penalties.

               7. Corrective Action To Prevent Recurrence

    The promptness (or lack thereof) and extent to which the DOE 
contractor takes corrective action, including actions to identify root 
cause and prevent recurrence, may result in up to a 50% increase or 
decrease in the base civil penalty shown in Table 1. For example, very 
extensive corrective action may result in reducing the proposed civil 
penalty as much as 50% of the base value shown in Table 1. On the other 
hand, the civil penalty may be increased as much as 50% of the base 
value if initiation or corrective action is not prompt or if the 
corrective action is only minimally acceptable. In weighing this factor, 
consideration will be given to, among other things, the appropriateness, 
timeliness and degree of initiative associated with the corrective 
action. The comprehensiveness of the corrective action will also be 
considered, taking into account factors such as whether the action is 
focused narrowly to the specific violation or broadly to the general 
area of concern.

[[Page 517]]

                  8. DOE's Contribution to a Violation

    There may be circumstances in which a violation of a DOE Nuclear 
Safety Requirement results, in part or entirely, from a direction given 
by DOE personnel to a DOE contractor to either take, or forbear from 
taking an action at a DOE facility. In such cases, DOE may refrain from 
issuing an NOV, and may mitigate, either partially or entirely, any 
proposed civil penalty, provided that the direction upon which the DOE 
contractor relied is documented in writing, contemporaneously with the 
direction. It should be emphasized, however, that pursuant to 10 CFR 
820.50, no interpretation of a DOE Nuclear Safety Requirement is binding 
upon DOE unless issued in writing by the General Counsel. Further, as 
discussed in this section of this policy statement, lack of funding by 
itself will not be considered as a mitigating factor in enforcement 
actions.

                        9. Exercise of Discretion

    Because DOE wants to encourage and support DOE contractor initiative 
for prompt self-identification, reporting and correction of problems, 
DOE may exercise discretion as follows:
    a. In accordance with the previous discussion, DOE may refrain from 
issuing a civil penalty for a violation which meets all of the following 
criteria:
    (1) The violation is promptly identified and reported to DOE before 
DOE learns of it.
    (2) The violation is not willful or a violation that could 
reasonably be expected to have been prevented by the DOE contractor's 
corrective action for a previous violation.
    (3) The DOE contractor, upon discovery of the violation, has taken 
or begun to take prompt and appropriate action to correct the violation.
    (4) The DOE contractor has taken, or has agreed to take, remedial 
action satisfactory to DOE to preclude recurrence of the violation and 
the underlying conditions which caused it.
    b. DOE may refrain from proposing a civil penalty for a violation 
involving a past problem, such as in engineering design or installation, 
that meets all of the following criteria:
    (1) It was identified by a DOE contractor as a result of a formal 
effort such as a Safety System Functional Inspection, Design 
Reconstitution program, or other program that has a defined scope and 
timetable which is being aggressively implemented and reported;
    (2) Comprehensive corrective action has been taken or is well 
underway within a reasonable time following identification; and
    (3) It was not likely to be identified by routine contractor efforts 
such as normal surveillance or quality assurance activities.
    c. DOE will not issue a Notice of Violation for cases in which the 
violation discovered by the DOE contractor cannot reasonably be linked 
to the conduct of that contractor in the design, construction or 
operation of the DOE facility involved, provided that prompt and 
appropriate action is taken by the DOE contractor upon identification of 
the past violation to report to DOE and remedy the problem.
    d. DOE may refrain from issuing a Notice of Violation for an item of 
noncompliance that meets all of the following criteria:
    (1) It was promptly identified by the DOE nuclear entity;
    (2) It is normally classified at a Severity Level III;
    (3) It was promptly reported to DOE;
    (4) Prompt and appropriate corrective action will be taken, 
including measures to prevent recurrence; and
    (5) It was not a willful violation or a violation that could 
reasonably be expected to have been prevented by the DOE contractor's 
corrective action for a previous violation.
    e. DOE may refrain from issuing a Notice of Violation for an item of 
noncompliance that meets all of the following criteria:
    (1) It was an isolated Severity Level III violation identified 
during a Tiger Team inspection conducted by the Office of Health, Safety 
and Security during an inspection or integrated performance assessment 
conducted by the Office of Nuclear Safety and Environment, or during 
some other DOE assessment activity.
    (2) The identified noncompliance was properly reported by the 
contractor upon discovery.
    (3) The contractor initiated or completed appropriate assessment and 
corrective actions within a reasonable period, usually before the 
termination of the onsite inspection or integrated performance 
assessment.
    (4) The violation is not willful or one which could reasonably be 
expected to have been prevented by the DOE contractor's corrective 
action for a previous violation.
    f. In situations where corrective actions have been completed before 
termination of an inspection or assessment, a formal response from the 
contractor is not required and the inspection or integrated performance 
assessment report serves to document the violation and the corrective 
action. However, in all instances, the contractor is required to report 
the noncompliance through established reporting mechanisms so the 
noncompliance issue and any corrective actions can be properly tracked 
and monitored.
    g. If DOE initiates an enforcement action for a violation at a 
Severity Level II or III and, as part of the corrective action for that 
violation, the DOE contractor identifies other examples of the violation 
with the same root cause, DOE may refrain from initiating an additional 
enforcement action. In

[[Page 518]]

determining whether to exercise this discretion, DOE will consider 
whether the DOE contractor acted reasonably and in a timely manner 
appropriate to the safety significance of the initial violation, the 
comprehensiveness of the corrective action, whether the matter was 
reported, and whether the additional violation(s) substantially change 
the safety significance or character of the concern arising out of the 
initial violation.
    h. It should be emphasized that the preceding paragraphs are solely 
intended to be examples indicating when enforcement discretion may be 
exercised to forego the issuance of a civil penalty or, in some cases, 
the initiation of any enforcement action at all. However, 
notwithstanding these examples, a civil penalty may be proposed or 
Notice of Violation issued when, in DOE's judgment, such action is 
warranted on the basis of the circumstances of an individual case.

   X. Procurement of Products or Services and the Reporting of Defects

    (a) DOE's enforcement policy is also applicable to subcontractors 
and suppliers to DOE Price-Anderson indemnified contractors. Through 
procurement contracts with these DOE contractors, subcontractors and 
suppliers are generally required to have quality assurance programs that 
meet applicable DOE Nuclear Safety Requirements. Suppliers of products 
or services provided in support of or for use in DOE facilities operated 
by Price-Anderson indemnified contractors are subject to certain 
requirements designed to ensure the high quality of the products or 
services supplied to DOE facilities that could, if deficient, adversely 
affect public or worker safety. DOE regulations require that DOE be 
notified whenever a DOE contractor obtains information reasonably 
indicating that a DOE facility (including its structures, systems and 
components) which conducts activities subject to the provisions of the 
Atomic Energy Act of 1954, as amended or DOE Nuclear Safety Requirements 
either fails to comply with any provision of the Atomic Energy Act or 
any applicable DOE Nuclear Safety Requirement, or contains a defect or 
has been supplied with a product or service which could create or result 
in a substantial safety hazard.
    (b) DOE will conduct audits and assessments of its contractors to 
determine whether they are ensuring that subcontractors and suppliers 
are meeting their contractual obligations with regard to quality of 
products or services that could have an adverse effect on public or 
worker radiological safety, and ensure that DOE contractors have in 
place adequate programs to determine whether products or services 
supplied to them for DOE facilities meet applicable DOE requirements and 
that substandard products or services are not used by Price-Anderson 
indemnified contractors at the facilities they operate for DOE. As part 
of the effort of ensuring that contractual and regulatory requirements 
are met, DOE may also audit or assess subcontractors and suppliers. 
These assessments could include examination of the quality assurance 
programs and their implementation by the subcontractors and suppliers 
through examination of product quality.
    (c) When audits or assessments determine that subcontractors or 
suppliers have failed to comply with applicable DOE Nuclear Safety 
Requirements or to fulfill contractual commitments designed to ensure 
the quality of a safety significant product or service, enforcement 
action will be taken. Notices of Violations and civil penalties will be 
issued, as appropriate, for DOE contractor failures to ensure that their 
subcontractors and suppliers provide products and services that meet 
applicable DOE requirements. Notices of Violations and civil penalties 
will also be issued to subcontractors and suppliers of DOE contractors 
which fail to comply with the reporting requirements set forth in any 
other applicable DOE Nuclear Safety Requirements.

                XI. Inaccurate and Incomplete Information

    (a) A violation of DOE Nuclear Safety Requirements for failure to 
provide complete and accurate information to DOE, 10 CFR 820.11, can 
result in the full range of enforcement sanctions, depending upon the 
circumstances of the particular case and consideration of the factors 
discussed in this section. Violations involving inaccurate or incomplete 
information or the failure to provide significant information identified 
by a DOE contractor normally will be categorized based on the guidance 
in section VI, ``Severity of Violations''.
    (b) DOE recognizes that oral information may in some situations be 
inherently less reliable than written submittals because of the absence 
of an opportunity for reflection and management review. However, DOE 
must be able to rely on oral communications from officials of DOE 
contractors concerning significant information. In determining whether 
to take enforcement action for an oral statement, consideration will be 
given to such factors as
    (b)(1) The degree of knowledge that the communicator should have had 
regarding the matter in view of his or her position, training, and 
experience;
    (b)(2) The opportunity and time available prior to the communication 
to assure the accuracy or completeness of the information;
    (b)(3) The degree of intent or negligence, if any, involved;
    (b)(4) The formality of the communication;
    (b)(5) The reasonableness of DOE reliance on the information;

[[Page 519]]

    (b)(6) The importance of the information that was wrong or not 
provided; and
    (b)(7) The reasonableness of the explanation for not providing 
complete and accurate information.
    (c) Absent gross negligence or willfulness, an incomplete or 
inaccurate oral statement normally will not be subject to enforcement 
action unless it involves significant information provided by an 
official of a DOE contractor. However, enforcement action may be taken 
for an unintentionally incomplete or inaccurate oral statement provided 
to DOE by an official of a DOE contractor or others on behalf of the DOE 
contractor, if a record was made of the oral information and provided to 
the DOE contractor thereby permitting an opportunity to correct the oral 
information, such as if a transcript of the communication or meeting 
summary containing the error was made available to the DOE contractor 
and was not subsequently corrected in a timely manner.
    (d) When a DOE contractor has corrected inaccurate or incomplete 
information, the decision to issue a citation for the initial inaccurate 
or incomplete information normally will be dependent on the 
circumstances, including the ease of detection of the error, the 
timeliness of the correction, whether DOE or the DOE contractor 
identified the problem with the communication, and whether DOE relied on 
the information prior to the correction. Generally, if the matter was 
promptly identified and corrected by the DOE contractor prior to 
reliance by DOE, or before DOE raised a question about the information, 
no enforcement action will be taken for the initial inaccurate or 
incomplete information. On the other hand, if the misinformation is 
identified after DOE relies on it, or after some question is raised 
regarding the accuracy of the information, then some enforcement action 
normally will be taken even if it is in fact corrected.
    (e) If the initial submission was accurate when made but later turns 
out to be erroneous because of newly discovered information or advance 
in technology, a citation normally would not be appropriate if, when the 
new information became available, the initial submission was corrected.
    (f) The failure to correct inaccurate or incomplete information that 
the DOE contractor does not identify as significant normally will not 
constitute a separate violation. However, the circumstances surrounding 
the failure to correct may be considered relevant to the determination 
of enforcement action for the initial inaccurate or incomplete 
statement. For example, an unintentionally inaccurate or incomplete 
submission may be treated as a more severe matter if a DOE contractor 
later determines that the initial submission was in error and does not 
correct it or if there were clear opportunities to identify the error.

             XII. Secretarial Notification and Consultation

    The Secretary will be provided written notification of all 
enforcement actions involving proposed civil penalties. The Secretary 
will be consulted prior to taking action in the following situations:
    a. Proposals to impose civil penalties in an amount equal to or 
greater than the statutory limit;
    b. Any proposed enforcement action that involves a Severity Level I 
violation;
    c. Any action the Director believes warrants the Secretary's 
involvement; or
    d. Any proposed enforcement action on which the Secretary asks to be 
consulted.

                 XIII. Whistleblower Enforcement Policy

    a. DOE contractors may not retaliate against any employee because 
the employee has disclosed information, participated in activities or 
refused to participate in activities listed in 10 CFR 708.5 (a)-(c) as 
provided by 10 CFR 708.43. DOE contractor employees may seek remedial 
relief for allegations of retaliation from the DOE Office of Hearings 
and Appeals (OHA) under 10 CFR part 708 (Part 708) or from the 
Department of Labor (DOL) under sec. 211 of the Energy Reorganization 
Act (sec. 211), implemented in 29 CFR part 24.
    b. An act of retaliation by a DOE contractor, proscribed under 10 
CFR 708.43, that results from a DOE contractor employee's involvement in 
an activity listed in 10 CFR 708.5(a)-(c) concerning nuclear safety in 
connection with a DOE nuclear activity, may constitute a violation of a 
DOE Nuclear Safety Requirement under 10 CFR part 820 (Part 820). The 
retaliation may be subject to the investigatory and adjudicatory 
procedures of both Part 820 and Part 708. The same facts that support 
remedial relief to employees under Part 708 may be used by the Director 
of the Office of Enforcement (Director) to support issuance of a 
Preliminary Notice of Violation (PNOV), a Final Notice of Violation 
(FNOV), and assessment of civil penalties. 10 CFR 820.24-820.25.
    c. When an employee files a complaint with DOL under sec. 211 and 
DOL collects information relating to allegations of DOE contractor 
retaliation against a contractor employee for actions taken concerning 
nuclear safety, the Director may use this information as a basis for 
initiating enforcement action by issuing a PNOV. 10 CFR 820.24. DOE may 
consider information collected in the DOL proceedings to determine 
whether the retaliation may be related to a contractor employee's action 
concerning a DOE nuclear activity.
    d. The Director may also use DOL information to support the 
determination that a

[[Page 520]]

contractor has violated or is continuing to violate the nuclear safety 
requirements against contractor retaliation and to issue civil penalties 
or other appropriate remedy in a FNOV. 10 CFR 820.25.
    e. The Director will have discretion to give appropriate weight to 
information collected in DOL and OHA investigations and proceedings. In 
deciding whether additional investigation or information is needed, the 
Director will consider the extent to which the facts in the proceedings 
have been adjudicated as well as any information presented by the 
contractor. In general, the Director may initiate an enforcement action 
without additional investigation or information.
    f. Normally, the Director will await the completion of a Part 708 
proceeding before OHA or a sec. 211 proceeding at DOL before deciding 
whether to take any action, including an investigation under Part 820 
with respect to alleged retaliation. A Part 708 or sec. 211 proceeding 
would be considered completed when there is either a final decision or a 
settlement of the retaliation complaint, or no additional administrative 
action is available.
    g. DOE encourages its contractors to cooperate in resolving 
whistleblower complaints raised by contractor employees in a prompt and 
equitable manner. Accordingly, in deciding whether to initiate an 
enforcement action, the Director will take into account the extent to 
which a contractor cooperated in a Part 708 or sec. 211 proceeding, and, 
in particular, whether the contractor resolved the matter promptly 
without the need for an adjudication hearing.
    h. In considering whether to initiate an enforcement action and, if 
so, what remedy is appropriate, the Director will also consider the 
egregiousness of the particular case including the level of management 
involved in the alleged retaliation and the specificity of the acts of 
retaliation.
    i. In egregious cases, the Director has the discretion to proceed 
with an enforcement action, including an investigation with respect to 
alleged retaliation irrespective of the completion status of the Part 
708 or sec. 211 proceeding. Egregious cases would include: (1) Cases 
involving credible allegations for willful or intentional violations of 
DOE rules, regulations, orders or Federal statutes which, if proven, 
would warrant criminal referrals to the U.S. Department of Justice for 
prosecutorial review; and (2) cases where an alleged retaliation 
suggests widespread, high-level managerial involvement and raises 
significant public health and safety concerns.
    j. When the Director undertakes an investigation of an allegation of 
DOE contractor retaliation against an employee under Part 820, the 
Director will apprise persons interviewed and interested parties that 
the investigative activity is being taken pursuant to the nuclear safety 
procedures of Part 820 and not pursuant to the procedures of Part 708.
    k. At any time, the Director may begin an investigation of a 
noncompliance of the substantive nuclear safety rules based on the 
underlying nuclear safety concerns raised by the employee regardless of 
the status of completion of any related whistleblower retaliation 
proceedings. The nuclear safety rules include: 10 CFR part 830 (nuclear 
safety management); 10 CFR part 835 (occupational radiation protection); 
and 10 CFR part 820.11 (information accuracy requirements).

[58 FR 43692, Aug. 17, 1993, as amended at 62 FR 52481, Oct. 8, 1997; 65 
FR 15220, Mar. 22, 2000; 71 FR 68732, Nov. 28, 2006; 72 FR 31921, June 
8, 2007]



PART 824_PROCEDURAL RULES FOR THE ASSESSMENT OF CIVIL PENALTIES FOR CLASSIFIED INFORMATION SECURITY VIOLATIONS--Table of Contents



Sec.
824.1 Purpose and scope.
824.2 Applicability.
824.3 Definitions.
824.4 Civil penalties.
824.5 Investigations.
824.6 Preliminary notice of violation.
824.7 Final notice of violation.
824.8 Hearing.
824.9 Hearing Counsel.
824.10 Hearing Officer.
824.11 Rights of the person at the hearing.
824.12 Conduct of the hearing.
824.13 Initial decision.
824.14 Special procedures.
824.15 Collection of civil penalties.
824.16 Direction to NNSA contractors.

Appendix A to Part 824--General Statement of Enforcement Policy

    Authority: 42 U.S.C. 2201, 2282b, 7101 et seq., 50 U.S.C. 2401 et 
seq.

    Source: 70 FR 3607, Jan. 26, 2005, unless otherwise noted.



Sec. 824.1  Purpose and scope.

    This part implements subsections a., c., and d. of section 234B. of 
the Atomic Energy Act of 1954 (the Act), 42 U.S.C. 2282b. Subsection a. 
provides that any person who has entered into a contract or agreement 
with the Department of Energy, or a subcontract or subagreement thereto, 
and who violates (or whose employee violates) any applicable rule, 
regulation or order under the Act relating to the security or 
safeguarding of Restricted Data or other

[[Page 521]]

classified information, shall be subject to a civil penalty not to 
exceed $110,000 for each violation. Subsections c. and d. specify 
certain additional authorities and limitations respecting the assessment 
of such penalties.

[70 FR 3607, Jan. 26, 2005, as amended at 74 FR 66033, Dec. 14, 2009]



Sec. 824.2  Applicability.

    (a) General. These regulations apply to any person that has entered 
into a contract or agreement with DOE, or a subcontract or sub-agreement 
thereto.
    (b) Limitations. DOE may not assess any civil penalty against any 
entity (including subcontractors and suppliers thereto) specified at 
subsection d. of section 234A of the Act until the entity enters, after 
October 5, 1999, into a new contract with DOE or an extension of a 
current contract with DOE, and the total amount of civil penalties may 
not exceed the total amount of fees paid by the DOE to that entity in 
that fiscal year.
    (c) Individual employees. No civil penalty may be assessed against 
an individual employee of a contractor or any other entity which enters 
into an agreement with DOE.

[70 FR 3607, Jan. 26, 2005, as amended at 70 FR 8716, Feb. 23, 2005]



Sec. 824.3  Definitions.

    As used in this part:
    Act means the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.).
    Administrator means the Administrator of the National Nuclear 
Security Administration.
    Classified information means Restricted Data and Formerly Restricted 
Data protected against unauthorized disclosure pursuant to the Act and 
National Security Information that has been determined pursuant to 
Executive Order 12958, as amended March 25, 2003, or any predecessor or 
successor executive order to require protection against unauthorized 
disclosure and that is marked to indicate its classified status when in 
documentary form.
    DOE means the United States Department of Energy, including the 
National Nuclear Security Administration.
    Director means the DOE Official, or his or her designee, to whom the 
Secretary has assigned responsibility for enforcement of this part.
    Person means any person as defined in section 11.s. of the Act, 42 
U.S.C. 2014, and includes any affiliate or parent corporation thereof, 
who enters into a contract or agreement with DOE, or is a party to a 
contract or subcontract under a contract or agreement with DOE.
    Secretary means the Secretary of Energy.



Sec. 824.4  Civil penalties.

    (a) Any person who violates a classified information protection 
requirement of any of the following is subject to a civil penalty under 
this part:
    (1) 10 CFR part 1016--Safeguarding of Restricted Data;
    (2) 10 CFR part 1045--Nuclear Classification and Declassification; 
or
    (3) Any other DOE regulation or rule (including any DOE order or 
manual enforceable against the contractor or subcontractor under a 
contractual provision in that contractor's or subcontractor's contract) 
related to the safeguarding or security of classified information if the 
regulation or rule provides that violation of its provisions may result 
in a civil penalty pursuant to subsection a. of section 234B. of the 
Act.
    (b) If, without violating a classified information protection 
requirement of any regulation or rule under paragraph (a) of this 
section, a person by an act or omission causes, or creates a risk of, 
the loss, compromise or unauthorized disclosure of classified 
information, the Secretary may issue a compliance order to that person 
requiring the person to take corrective action and notifying the person 
that violation of the compliance order is subject to a notice of 
violation and assessment of a civil penalty. If a person wishes to 
contest the compliance order, the person must file a notice of appeal 
with the Secretary within 15 days of receipt of the compliance order.
    (c) The Director may propose imposition of a civil penalty for 
violation of a requirement of a regulation or rule under paragraph (a) 
of this section or a

[[Page 522]]

compliance order issued under paragraph (b) of this section, not to 
exceed $110,000 for each violation.

                                * * * * *

    (d) If any violation is a continuing one, each day of such violation 
shall constitute a separate violation for the purpose of computing the 
applicable civil penalty.
    (e) The Director may enter into a settlement, with or without 
conditions, of an enforcement proceeding at any time if the settlement 
is consistent with the objectives of DOE's classified information 
protection requirements.

[70 FR 3607, Jan. 26, 2005, as amended at 74 FR 66033, Dec. 14, 2009]



Sec. 824.5  Investigations.

    The Director may conduct investigations and inspections relating to 
the scope, nature and extent of compliance by a person with DOE security 
requirements specified in Sec. 824.4(a) and (b) and take such action as 
the Director deems necessary and appropriate to the conduct of the 
investigation or inspection, including signing, issuing and serving 
subpoenas.



Sec. 824.6  Preliminary notice of violation.

    (a) In order to begin a proceeding to impose a civil penalty under 
this part, the Director shall notify the person by a written preliminary 
notice of violation sent by certified mail, return receipt requested, 
of:
    (1) The date, facts, and nature of each act or omission constituting 
the alleged violation;
    (2) The particular provision of the regulation, rule or compliance 
order involved in each alleged violation;
    (3) The proposed remedy for each alleged violation, including the 
amount of any civil penalty proposed; and,
    (4) The right of the person to submit a written reply to the 
Director within 30 calendar days of receipt of such preliminary notice 
of violation.
    (b) A reply to a preliminary notice of violation must contain a 
statement of all relevant facts pertaining to an alleged violation. The 
reply must:
    (1) State any facts, explanations and arguments which support a 
denial of the alleged violation;
    (2) Demonstrate any extenuating circumstances or other reason why a 
proposed remedy should not be imposed or should be mitigated;
    (3) Discuss the relevant authorities which support the position 
asserted, including rulings, regulations, interpretations, and previous 
decisions issued by DOE;
    (4) Furnish full and complete answers to any questions set forth in 
the preliminary notice; and
    (5) Include copies of all relevant documents.
    (c) If a person fails to submit a written reply within 30 calendar 
days of receipt of a preliminary notice of violation:
    (1) The person relinquishes any right to appeal any matter in the 
preliminary notice; and
    (2) The preliminary notice, including any remedies therein, 
constitutes a final order.
    (d) The Director, at the request of a person notified of an alleged 
violation, may extend for a reasonable period the time for submitting a 
reply or a hearing request letter.



Sec. 824.7  Final notice of violation.

    (a) If a person submits a written reply within 30 calendar days of 
receipt of a preliminary notice of violation, the Director must make a 
final determination whether the person violated or is continuing to 
violate a classified information security requirement.
    (b) Based on a determination by the Director that a person has 
violated or is continuing to violate a classified information security 
requirement, the Director may issue to the person a final notice of 
violation that concisely states the determined violation, the amount of 
any civil penalty imposed, and further actions necessary by or available 
to the person. The final notice of violation also must state that the 
person has the right to submit to the Director, within 30 calendar days 
of the receipt of the notice, a written request for a hearing under 
Sec. 824.8 or, in the alternative, to elect the procedures specified in 
section 234A.c.(3) of the Act, 42 U.S.C. 2282a.c.(3).

[[Page 523]]

    (c) The Director must send a final notice of violation by certified 
mail, return receipt requested, within 30 calendar days of the receipt 
of a reply.
    (d) Subject to paragraphs (h) and (i) of this section, the effect of 
final notice shall be:
    (1) If a final notice of violation does not contain a civil penalty, 
it shall be deemed a final order 15 days after the final notice is 
issued.
    (2) If a final notice of violation contains a civil penalty, the 
person must submit to the Director within 30 days after the issuance of 
the final notice:
    (i) A waiver of further proceedings;
    (ii) A request for an on-the-record hearing under Sec. 824.8; or
    (iii) A notice of intent to proceed under section 234A.c.(3) of the 
Act, 42 U.S.C. 2282a.(c)(3).
    (e) If a person waives further proceedings, the final notice of 
violation shall be deemed a final order enforceable against the person. 
The person must pay the civil penalty set forth in the notice of 
violation within 60 days of the filing of waiver unless the Director 
grants additional time.
    (f) If a person files a request for an on-the-record hearing, then 
the hearing process commences.
    (g) If the person files a notice of intent to proceed under section 
234A.c.(3) of the Act, 42 U.S.C. 2282a.(c)(3), the Director, by order, 
shall assess the civil penalty set forth in the Notice of Violation.
    (h) The Director may amend the final notice of violation at any time 
before the time periods specified in paragraphs (d)(1) or (d)(2) expire. 
An amendment shall add fifteen days to the time period under paragraph 
(d) of this section.
    (i) The Director may withdraw the final notice of violation, or any 
part thereof, at any time before the time periods specified in 
paragraphs (d)(1) or (d)(2) expire.



Sec. 824.8  Hearing.

    (a) Any person who receives a final notice of violation under Sec. 
824.7 may request a hearing concerning the allegations contained in the 
notice. The person must mail or deliver any written request for a 
hearing to the Director within 30 calendar days of receipt of the final 
notice of violation.
    (b) Upon receipt from a person of a written request for a hearing, 
the Director shall:
    (1) Appoint a Hearing Counsel; and
    (2) Select an administrative law judge appointed under section 3105 
of Title 5, U.S.C., to serve as Hearing Officer.



Sec. 824.9  Hearing Counsel.

    The Hearing Counsel:
    (a) Represents DOE;
    (b) Consults with the person or the person's counsel prior to the 
hearing;
    (c) Examines and cross-examines witnesses during the hearing; and
    (d) Enters into a settlement of the enforcement proceeding at any 
time if settlement is consistent with the objectives of the Act and DOE 
security requirements.



Sec. 824.10  Hearing Officer.

    The Hearing Officer:
    (a) Is responsible for the administrative preparations for the 
hearing;
    (b) Convenes the hearing as soon as is reasonable;
    (c) Administers oaths and affirmations;
    (d) Issues subpoenas, at the request of either party or on the 
Hearing Officer's motion;
    (e) Rules on offers of proof and receives relevant evidence;
    (f) Takes depositions or has depositions taken when the ends of 
justice would be served;
    (g) Conducts the hearing in a manner which is fair and impartial;
    (h) Holds conferences for the settlement or simplification of the 
issues by consent of the parties;
    (i) Disposes of procedural requests or similar matters;
    (j) Requires production of documents; and
    (k) Makes an initial decision under Sec. 824.13.



Sec. 824.11  Rights of the person at the hearing.

    The person may:
    (a) Testify or present evidence through witnesses or by documents;

[[Page 524]]

    (b) Cross-examine witnesses and rebut records or other physical 
evidence, except as provided in Sec. 824.12(d);
    (c) Be present during the entire hearing, except as provided in 
Sec. 824.12(d); and
    (d) Be accompanied, represented and advised by counsel of the 
person's choosing.



Sec. 824.12  Conduct of the hearing.

    (a) DOE shall make a transcript of the hearing;
    (b) Except as provided in paragraph (d) of this section, the Hearing 
Officer may receive any oral or documentary evidence, but shall exclude 
irrelevant, immaterial or unduly repetitious evidence;
    (c) Witnesses shall testify under oath and are subject to cross-
examination, except as provided in paragraph (d) of this section;
    (d) The Hearing Officer must use procedures appropriate to safeguard 
and prevent unauthorized disclosure of classified information or any 
other information protected from public disclosure by law or regulation, 
with minimum impairment of rights and obligations under this part. The 
classified or otherwise protected status of any information shall not, 
however, preclude its being introduced into evidence. The Hearing 
Officer may issue such orders as may be necessary to consider such 
evidence in camera including the preparation of a supplemental initial 
decision to address issues of law or fact that arise out of that portion 
of the evidence that is classified or otherwise protected.
    (e) DOE has the burden of going forward with and of proving by a 
preponderance of the evidence that the violation occurred as set forth 
in the final notice of violation and that the proposed civil penalty is 
appropriate. The person to whom the final notice of violation has been 
addressed shall have the burden of presenting and of going forward with 
any defense to the allegations set forth in the final notice of 
violation. Each matter of controversy shall be determined by the Hearing 
Officer upon a preponderance of the evidence.



Sec. 824.13  Initial decision.

    (a) The Hearing Officer shall issue an initial decision as soon as 
practicable after the hearing. The initial decision shall contain 
findings of fact and conclusions regarding all material issues of law, 
as well as reasons therefor. If the Hearing Officer determines that a 
violation has occurred and that a civil penalty is appropriate, the 
initial decision shall set forth the amount of the civil penalty based 
on:
    (1) The nature, circumstances, extent, and gravity of the violation 
or violations;
    (2) The violator's ability to pay;
    (3) The effect of the civil penalty on the person's ability to do 
business;
    (4) Any history of prior violations;
    (5) The degree of culpability; and
    (6) Such other matters as justice may require.
    (b) The Hearing Officer shall serve all parties with the initial 
decision by certified mail, return receipt requested. The initial 
decision shall include notice that it constitutes a final order of DOE 
30 days after the filing of the initial decision unless the Secretary 
files a Notice of Review. If the Secretary files a notice of Notice of 
Review, he shall file a final order as soon as practicable after 
completing his review. The Secretary, at his discretion, may order 
additional proceedings, remand the matter, or modify the amount of the 
civil penalty assessed in the initial decision. DOE shall notify the 
person of the Secretary's action under this paragraph in writing by 
certified mail, return receipt requested. The person against whom the 
civil penalty is assessed by the final order shall pay the full amount 
of the civil penalty assessed in the final order within thirty days (30) 
unless otherwise agreed by the Director.



Sec. 824.14  Special procedures.

    A person receiving a final notice of violation under Sec. 824.7 may 
elect in writing, within 30 days of receipt of such notice, the 
application of special procedures regarding payment of the penalty set 
forth in section 234A.c.(3) of the Act, 42 U.S.C. 2282a(c)(3). The 
Director shall promptly assess a civil penalty, by order, after the date 
of such election. If the civil penalty has

[[Page 525]]

not been paid within sixty calendar days after the assessment has been 
issued, the DOE shall institute an action in the appropriate District 
Court of the United States for an order affirming the assessment of the 
civil penalty.



Sec. 824.15  Collection of civil penalties.

    If any person fails to pay an assessment of a civil penalty after it 
has become a final order or after the appropriate District Court has 
entered final judgment for DOE under Sec. 824.14, DOE shall institute 
an action to recover the amount of such penalty in an appropriate 
District Court of the United States.



Sec. 824.16  Direction to NNSA contractors.

    (a) Notwithstanding any other provision of this part, the NNSA 
Administrator, rather than the Director, signs, issues, serves, or takes 
the following actions that direct NNSA contractors or subcontractors.
    (1) Subpoenas;
    (2) Orders to compel attendance;
    (3) Disclosures of information or documents obtained during an 
investigation or inspection;
    (4) Preliminary notices of violation; and
    (5) Final notices of violations.
    (b) The Administrator shall act after consideration of the 
Director's recommendation. If the Administrator disagrees with the 
Director's recommendation, and the disagreement cannot be resolved by 
the two officials, the Director may refer the matter to the Deputy 
Secretary for resolution.



  Sec. Appendix A to Part 824--General Statement of Enforcement Policy

                             I. Introduction

    a. This policy statement sets forth the general framework through 
which DOE will seek to ensure compliance with its classified information 
security regulations and rules and classified information security-
related compliance orders (hereafter collectively referred to as 
classified information security requirements).
    The policy set forth herein is applicable to violations of 
classified information security requirements by DOE contractors and 
their subcontractors (hereafter collectively referred to as DOE 
contractors). This policy statement is not a regulation and is intended 
only to provide general guidance to those persons subject to the 
classified information security requirements. It is not intended to 
establish a formulaic approach to the initiation and resolution of 
situations involving noncompliance with these requirements. Rather, DOE 
intends to consider the particular facts of each noncompliance situation 
in determining whether enforcement penalties are appropriate and, if so, 
the appropriate magnitude of those penalties. DOE reserves the option to 
deviate from this policy statement when appropriate in the circumstances 
of particular cases.
    b. Both the Department of Energy Organization Act, 42 U.S.C. 7101, 
and the Atomic Energy Act of 1954 (the Act), 42 U.S.C. 2011, require DOE 
to protect and provide for the common defense and security of the United 
States in conducting its nuclear activities, and grant DOE broad 
authority to achieve this goal.
    c. The DOE goal in the compliance arena is to enhance and protect 
the common defense and security at DOE facilities by fostering a culture 
among both DOE line organizations and contractors that actively seeks to 
attain and sustain compliance with classified information security 
requirements. The enforcement program and policy have been developed 
with the express purpose of achieving a culture of active commitment to 
security and voluntary compliance. DOE will establish effective 
administrative processes and incentives for contractors to identify and 
report noncompliances promptly and openly and to initiate comprehensive 
corrective actions to resolve both the noncompliances themselves and the 
program or process deficiencies that led to noncompliance.
    d. In the development of the DOE enforcement policy, DOE believes 
that the reasonable exercise of its enforcement authority can help to 
reduce the likelihood of serious security incidents. This can be 
accomplished by providing greater emphasis on a culture of security 
awareness in existing DOE operations and strong incentives for 
contractors to identify and correct noncompliance conditions and 
processes in order to protect classified information of vital 
significance to this nation. DOE wants to facilitate, encourage, and 
support contractor initiatives for the prompt identification and 
correction of problems. These initiatives and activities will be duly 
considered in exercising enforcement discretion.
    e. Section 234B of the Act provides DOE with the authority to impose 
civil penalties and also with the authority to compromise, modify, or 
remit civil penalties with or without conditions. In implementing 
section 234B, DOE will carefully consider the facts of each case of 
noncompliance and will exercise appropriate judgment in taking any 
enforcement action. Part of the function of a sound

[[Page 526]]

enforcement program is to assure a proper and continuing level of 
security vigilance. The reasonable exercise of enforcement authority 
will be facilitated by the appropriate application of security 
requirements to nuclear facilities and by promoting and coordinating the 
proper contractor attitude toward complying with those requirements.

                               II. Purpose

    The purpose of the DOE enforcement program is to promote and protect 
the common defense and security of the United States by:
    a. Ensuring compliance by DOE contractors with applicable classified 
information security requirements.
    b. Providing positive incentives for a DOE contractor's:
    (1) Timely self-identification of security deficiencies,
    (2) Prompt and complete reporting of such deficiencies to DOE,
    (3) Root cause analyses of security deficiencies,
    (4) Prompt correction of security deficiencies in a manner which 
precludes recurrence, and
    (5) Identification of modifications in practices or facilities that 
can improve security.
    c. Deterring future violations of DOE requirements by a DOE 
contractor.
    d. Encouraging the continuous overall improvement of operations at 
DOE facilities.

                        III. Statutory Authority

    Section 234B of the Act subjects contractors, and their 
subcontractors and suppliers, to civil penalties for violations of DOE 
regulations, rules and orders regarding the safeguarding and security of 
Restricted Data and other classified information.

                        IV. Procedural Framework

    a. 10 CFR part 824 sets forth the procedures DOE will use in 
exercising its enforcement authority, including the issuance of notices 
of violation and the resolution of contested enforcement actions in the 
event a DOE contractor elects to adjudicate contested issues before an 
administrative law judge.
    b. Pursuant to Sec. 824.6, the Director initiates the civil penalty 
process by issuing a preliminary notice of violation that specifies a 
proposed civil penalty. The DOE contractor is required to respond in 
writing to the preliminary notice of violation, either admitting the 
violation and waiving its right to contest the proposed civil penalty 
and paying it; admitting the violation, but asserting the existence of 
mitigating circumstances that warrant either the total or partial 
remission of the civil penalty; or denying that the violation has 
occurred and providing the basis for its belief that the preliminary 
notice of violation is incorrect. After evaluation of the DOE's 
contractor response, the Director may determine that no violation has 
occurred; that the violation occurred as alleged in the preliminary 
notice of violation, but that the proposed civil penalty should be 
remitted in whole or in part; or that the violation occurred as alleged 
in the preliminary notice of violation and that the proposed civil 
penalty is appropriate notwithstanding the asserted mitigating 
circumstances. In the latter two instances, the Director will issue a 
final notice of violation or a final notice of violation with proposed 
civil penalty.
    c. An opportunity to challenge a proposed civil penalty either 
before an administrative law judge or in a United States District Court 
is provided in 42 U.S.C. 2282a(c). Part 824 sets forth the procedures 
associated with an administrative hearing, should the contractor opt for 
that method of challenging the proposed civil penalty.

                        V. Severity of Violations

    a. Violations of classified information security requirements have 
varying degrees of security significance. Therefore, the relative 
importance of each violation must be identified as the first step in the 
enforcement process. Violations of classified information security 
requirements are categorized in three levels of severity to identify 
their relative security significance. Notices of violation are issued 
for noncompliance and propose civil penalties commensurate with the 
severity level of the violation(s) involved.
    b. Severity Level I has been assigned to violations that are the 
most significant and Severity Level III violations are the least 
significant. Severity Level I is reserved for violations of classified 
information security requirements which involve actual or high potential 
for adverse impact on the national security. Severity Level II 
violations represent a significant lack of attention or carelessness 
toward responsibilities of DOE contractors for the protection of 
classified information which could, if uncorrected, potentially lead to 
an adverse impact on the national security. Severity Level III 
violations are less serious, but are of more than minor concern: i.e., 
if left uncorrected, they could lead to a more serious concern. In some 
cases, violations may be evaluated in the aggregate and a single 
severity level assigned for a group of violations.
    c. Isolated minor violations of classified information security 
requirements will not be the subject of formal enforcement action 
through the issuance of a notice of violation. However, these minor 
violations will be identified as noncompliances and tracked to assure 
that appropriate corrective/remedial action is taken to prevent their 
recurrence, and evaluated to determine if generic or specific problems 
exist. If circumstances demonstrate that a number of related minor 
noncompliances have occurred in the same time

[[Page 527]]

frame (e.g., all identified during the same assessment), or that related 
minor noncompliances have recurred despite prior notice to the DOE 
contractor and sufficient opportunity to correct the problem, DOE may 
choose in its discretion to consider the noncompliances in the aggregate 
as a more serious violation warranting a Severity Level III designation, 
a notice of violation and a possible civil penalty.
    d. The severity level of a violation will depend, in part, on the 
degree of culpability of the DOE contractor with regard to the 
violation. Thus, inadvertent or negligent violations will be viewed 
differently from those in which there is gross negligence, deception or 
willfulness. In addition to the significance of the underlying violation 
and level of culpability involved, DOE will also consider the position, 
training and experience of the person involved in the violation. Thus, 
for example, a violation may be deemed to be more significant if a 
senior manager of an organization is involved rather than a foreman or 
non-supervisory employee. In this regard, while management involvement, 
direct or indirect, in a violation may lead to an increase in the 
severity level of a violation and proposed civil penalty, the lack of 
such involvement will not constitute grounds to reduce the severity 
level of a violation or mitigate a civil penalty. Allowance of 
mitigation in such circumstances could encourage lack of management 
involvement in DOE contractor activities and a decrease in protection of 
classified information.
    e. Other factors which will be considered by DOE in determining the 
appropriate severity level of a violation are the duration of the 
violation, the past performance of the DOE contractor in the particular 
activity area involved, whether the DOE contractor had prior notice of a 
potential problem, and whether there are multiple examples of the 
violation in the same time frame rather than an isolated occurrence. The 
relative weight given to each of these factors in arriving at the 
appropriate severity level will depend on the circumstances of each 
case.
    f. DOE expects contractors to provide full, complete, timely, and 
accurate information and reports. Accordingly, the severity level of a 
violation involving either failure to make a required report or 
notification to DOE or an untimely report or notification will be based 
upon the significance of, and the circumstances surrounding, the matter 
that should have been reported. A contractor will not normally be cited 
for a failure to report a condition or event unless the contractor was 
actually aware or should have been aware of the condition or event which 
it failed to report.

                       VI. Enforcement Conferences

    a. Should DOE determine, after completion of all assessment and 
investigation activities associated with a potential or alleged 
violation of classified information security requirements, that there is 
a reasonable basis to believe that a violation has actually occurred, 
and the violation may warrant a civil penalty, DOE will normally hold an 
enforcement conference with the DOE contractor involved prior to taking 
enforcement action. DOE may also elect to hold an enforcement conference 
for potential violations which would not ordinarily warrant a civil 
penalty but which could, if repeated, lead to such action. The purpose 
of the enforcement conference is to assure the accuracy of the facts 
upon which the preliminary determination to consider enforcement action 
is based, discuss the potential or alleged violations, their 
significance and causes, and the nature of and schedule for the DOE 
contractor's corrective actions, determine whether there are any 
aggravating or mitigating circumstances, and obtain other information 
which will help determine the appropriate enforcement action.
    b. DOE contractors will be informed prior to a meeting when that 
meeting is considered to be an enforcement conference. Such conferences 
are informal mechanisms for candid pre-decisional discussions regarding 
potential or alleged violations and will not normally be open to the 
public. In circumstances for which immediate enforcement action is 
necessary in the interest of the national security, such action will be 
taken prior to the enforcement conference, which may still be held after 
the necessary DOE action has been taken.

                         VII. Enforcement Letter

    a. In cases where DOE has decided not to issue a notice of 
violation, DOE may send an enforcement letter to the contractor signed 
by the Director. The enforcement letter is intended to communicate the 
basis of the decision not to pursue further enforcement action for a 
noncompliance. The enforcement letter is intended to point contractors 
to the desired level of security performance. It may be used when the 
Director concludes the specific noncompliance at issue is not of the 
level of significance warranted for issuance of a notice of violation. 
The enforcement letter will typically describe how the contractor 
handled the circumstances surrounding the noncompliance and address 
additional areas requiring the contractor's attention and DOE's 
expectations for corrective action. The enforcement letter notifies the 
contractor that, when verification is received that corrective actions 
have been implemented, DOE will close the enforcement action. In the 
case of NNSA contractors or subcontractors, the enforcement letter will 
take the form of advising the contractor or subcontractor that the 
Director has consulted with the NNSA Administrator who

[[Page 528]]

agrees that further enforcement action should not be pursued if 
verification is received that corrective actions have been implemented 
by the contractor or subcontractor.
    b. In many investigations, an enforcement letter may not be 
required. When DOE decides that a contractor has appropriately corrected 
a noncompliance or that the significance of the noncompliance is 
sufficiently low, it may close out an investigation without such 
enforcement letter. A closeout of a noncompliance with or without an 
enforcement letter may only take place after the Director has issued a 
letter confirming that corrective actions have been completed. In the 
case of NNSA contractors or subcontractors, the Director's letter will 
take the form of confirming that corrective actions have been completed 
and advising that the Director has consulted with the NNSA Administrator 
who agrees that no enforcement action should be pursued.

                        VIII. Enforcement Actions

    The nature and extent of the enforcement action is intended to 
reflect the seriousness of the violation involved. For the vast majority 
of violations for which DOE assigns severity levels as described 
previously, a notice of violation will be issued, requiring a formal 
response from the recipient describing the nature of and schedule for 
corrective actions it intends to take regarding the violation.

                         1. Notice of Violation

    a. A Notice of Violation (preliminary or final) is a document 
setting forth the conclusion that one or more violations of classified 
information security requirements have occurred. Such a notice normally 
requires the recipient to provide a written response which may take one 
of several positions described in Section IV of this policy statement. 
In the event that the recipient concedes the occurrence of the 
violation, it is required to describe corrective steps which have been 
taken and the results achieved; remedial actions which will be taken to 
prevent recurrence; and the date by which full compliance will be 
achieved.
    b. DOE will use the notice of violation as the standard method for 
formalizing the existence of a possible violation and the notice of 
violation will be issued in conjunction with the proposed imposition of 
a civil penalty. In certain limited instances, as described in this 
section, DOE may refrain from the issuance of an otherwise appropriate 
notice of violation. However, a notice of violation normally will be 
issued for willful violations, for violations where past corrective 
actions for similar violations have not been sufficient to prevent 
recurrence and there are no other mitigating circumstances.
    c. DOE contractors are not ordinarily cited for violations resulting 
from matters not within their control, such as equipment failures that 
were not avoidable by reasonable quality assurance measures, proper 
maintenance, or management controls. With regard to the issue of 
funding, however, DOE does not consider an asserted lack of funding to 
be a justification for noncompliance with classified information 
security requirements. Should a contractor believe that a shortage of 
funding precludes it from achieving compliance with one or more of these 
requirements, it may request, in writing, an exemption from the 
requirement(s) in question from the appropriate Secretarial Officer 
(SO). If no exemption is granted, the contractor, in conjunction with 
the SO, must take appropriate steps to modify, curtail, suspend or cease 
the activities which cannot be conducted in compliance with the 
classified information security requirement(s) in question.
    d. DOE expects the contractors which operate its facilities to have 
the proper management and supervisory systems in place to assure that 
all activities at DOE facilities, regardless of who performs them, are 
carried out in compliance with all classified information security 
requirements. Therefore, contractors normally will be held responsible 
for the acts or omissions of their employees and subcontractor employees 
in the conduct of activities at DOE facilities.

                            2. Civil Penalty

    a. A civil penalty is a monetary penalty that may be imposed for 
violations of applicable classified information security requirements, 
including compliance orders. Civil penalties are designed to emphasize 
the need for lasting remedial action, deter future violations, and 
underscore the importance of DOE contractor self-identification, 
reporting and correction of violations.
    b. Absent mitigating circumstances as described below, or 
circumstances otherwise warranting the exercise of enforcement 
discretion by DOE as described in this section, civil penalties will be 
proposed for Severity Level I and II violations. Civil penalties also 
will be proposed for Severity Level III violations which are similar to 
previous violations for which the contractor did not take effective 
corrective action. ``Similar'' violations are those which could 
reasonably have been expected to have been prevented by corrective 
action for the previous violation. DOE normally considers civil 
penalties only for similar Severity Level III violations that occur over 
an extended period of time.
    c. DOE will impose different base level civil penalties considering 
the severity level of the violation(s). Table 1 shows the daily base 
civil penalties for the various categories of severity levels. However, 
as described in Section V, the imposition of civil

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penalties will also take into account the gravity, circumstances, and 
extent of the violation or violations and, with respect to the violator, 
any history of prior similar violations and the degree of culpability 
and knowledge.
    d. Regarding the factor of ability of DOE contractors to pay the 
civil penalties, it is not DOE's intention that the economic impact of a 
civil penalty is such that it puts a DOE contractor out of business. 
Contract termination, rather than civil penalties, is used when the 
intent is to terminate a contractor's management of a DOE facility. The 
deterrent effect of civil penalties is best served when the amount of 
such penalties takes this factor into account. However, DOE will 
evaluate the relationship of entities affiliated with the contractor 
(such as parent corporations) when it asserts that it cannot pay the 
proposed penalty.
    e. DOE will review each case involving a proposed civil penalty on 
its own merit and adjust the base civil penalty values upward or 
downward appropriately. As indicated in paragraph 2.c of this section, 
Table 1 identifies the daily base civil penalty values for different 
severity levels. After considering all relevant circumstances, civil 
penalties may be escalated or mitigated based upon the adjustment 
factors described below in this section. In no instance will a civil 
penalty for any one violation exceed the $110,000 statutory limit per 
violation. However, it should be noted that if a violation is a 
continuing one, under the statute, each day the violation continued 
constitutes a separate violation for purposes of computing the civil 
penalty. Thus, the per violation cap will not shield a DOE contractor 
that is or should have been aware of an ongoing violation and has not 
reported it to DOE and taken corrective action despite an opportunity to 
do so from liability significantly exceeding $110,000. Further, as 
described in this section, the duration of a violation will be taken 
into account in determining the appropriate severity level of the base 
civil penalty.

              Table 1--Severity level Base Civil Penalties
------------------------------------------------------------------------
                                                           Base civil
                                                         penalty amount
                                                         (percentage of
                    Severity level                       maximum civil
                                                          penalty per
                                                         violation per
                                                              day)
------------------------------------------------------------------------
I....................................................                100
II...................................................                 50
III..................................................                 10
------------------------------------------------------------------------

                          3. Adjustment Factors

    a. DOE's enforcement program is not an end in itself, but a means to 
achieve compliance with classified information security requirements, 
and civil penalties are not assessed for revenue purposes, but rather to 
emphasize the importance of compliance and to deter future violations. 
The single most important goal of the DOE enforcement program is to 
encourage early identification and reporting of security deficiencies 
and violations of classified information security requirements by the 
DOE contractors themselves rather than by DOE, and the prompt correction 
of any deficiencies and violations so identified. With respect to their 
own practices and those of their subcontractors, DOE believes that DOE 
contractors are in the best position to identify and promptly correct 
noncompliance with classified information security requirements. DOE 
expects that these contractors should have in place internal compliance 
programs which will ensure the detection, reporting and prompt 
correction of security-related problems that may constitute, or lead to, 
violations of classified information security requirements before, 
rather than after, DOE has identified such violations. Thus, DOE 
contractors are expected to be aware of and to address security problems 
before they are discovered by DOE. Obviously, protection of classified 
information is enhanced if deficiencies are discovered (and promptly 
corrected) by the DOE contractor, rather than by DOE, which may not 
otherwise become aware of a deficiency until later on, during the course 
of an inspection, performance assessment, or following an incident at 
the facility. Early identification of classified information security-
related problems by DOE contractors can also have the added benefit of 
allowing information which could prevent such problems at other 
facilities in the DOE complex to be shared with other appropriate DOE 
contractors.
    b. Pursuant to this enforcement philosophy, DOE will provide 
substantial incentive for the early self-identification, reporting and 
prompt correction of problems which constitute, or could lead to, 
violations of classified information security requirements. Thus, 
application of the adjustment factors set forth below may result in no 
civil penalty being assessed for violations that are identified, 
reported, and promptly and effectively corrected by the DOE contractor.
    c. On the other hand, ineffective programs for problem 
identification and correction are unacceptable. Thus, for example, where 
a contractor fails to disclose and promptly correct violations of which 
it was aware or should have been aware, substantial civil penalties are 
warranted and may be sought, including the assessment of civil penalties 
for continuing violations on a per day basis.
    d. Further, in cases involving factors of willfulness, repeated 
violations, patterns of systematic violations, flagrant DOE-identified 
violations or serious breakdown in management controls, DOE intends to 
apply its full statutory enforcement authority where

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such action is warranted. Based on the degree of such factors, DOE may 
escalate the amount of civil penalties up to the statutory maximum of 
$110,000 per violation per day for continuing violations.

                     4. Identification and Reporting

    Reduction of up to 50% of the base civil penalty shown in Table 1 
may be given when a DOE contractor identifies the violation and promptly 
reports the violation to the DOE. In weighing this factor, consideration 
will be given to, among other things, the opportunity available to 
discover the violation, the ease of discovery and the promptness and 
completeness of any required report. No consideration will be given to a 
reduction in penalty if the DOE contractor does not take prompt action 
to report the problem to DOE upon discovery, or if the immediate actions 
necessary to restore compliance with classified information security 
requirements or place the facility or operation in a safe configuration 
are not taken.

               5. Self-Identification and Tracking Systems

    a. DOE strongly encourages contractors to self-identify 
noncompliances with classified information security requirements before 
the noncompliances lead to a string of similar and potentially more 
significant events or consequences. When a contractor identifies a 
noncompliance through its own self-monitoring activity, DOE will 
normally allow a reduction in the amount of civil penalties, regardless 
of whether prior opportunities existed for contractors to identify the 
noncompliance. DOE normally will not allow a reduction in civil 
penalties for self-identification if DOE intervention was required to 
induce the contractor to report a noncompliance.
    b. Self-identification of a noncompliance is possibly the single 
most important factor in considering a reduction in the civil penalty 
amount. Consideration of self-identification is linked to, among other 
things, whether prior opportunities existed to discover the violation, 
and if so, the age and number of such opportunities; the extent to which 
proper contractor controls should have identified or prevented the 
violation; whether discovery of the violation resulted from a 
contractor's self-monitoring activity; the extent of DOE involvement in 
discovering the violation or in prompting the contractor to identify the 
violation; and the promptness and completeness of any required report. 
Self-identification is also considered by DOE in deciding whether to 
pursue an investigation.

                        6. Self-Disclosing Events

    a. DOE expects contractors to demonstrate acceptance of 
responsibility for security of classified information and to pro-
actively identify noncompliance conditions in their programs and 
processes. In deciding whether to reduce any civil penalty proposed for 
violations revealed by the occurrence of a self-disclosing event (e.g. 
belated discovery of the disappearance of classified information or 
material subject to accountability rules), DOE will consider the ease 
with which a contractor could have discovered the noncompliance, i.e. 
failure to comply with classified information accountability rules, that 
contributed to the event and the prior opportunities that existed to 
discover the noncompliance. When the occurrence of an event discloses 
noncompliances that the contractor could have or should have identified 
before the event, DOE will not generally allow a reduction in civil 
penalties for self-identification. If a contractor simply reacts to 
events that disclose potentially significant consequences or downplays 
noncompliances which did not result in significant consequences, such 
contractor actions do not lead to the improvement in protection of 
classified information contemplated by the Act.
    b. The key test is whether the contractor reasonably could have 
detected any of the underlying noncompliances that contributed to the 
event. Failure to utilize events and activities to address 
noncompliances may result in higher civil penalty assessments or a DOE 
decision not to reduce civil penalty amounts.

               7. Corrective Action To Prevent Recurrence

    The promptness (or lack thereof) and extent to which the DOE 
contractor takes corrective action, including actions to identify root 
causes and prevent recurrence, may result in up to a 50% increase or 
decrease in the base civil penalty shown in Table 1. For example, very 
extensive corrective action may result in reducing the proposed civil 
penalty as much as 50% of the base value shown in Table 1. On the other 
hand, the civil penalty may be increased as much as 50% of the base 
value if initiation or corrective action is not prompt or if the 
corrective action is only minimally acceptable. In weighing this factor, 
consideration will be given to, among other things, the appropriateness, 
timeliness and degree of initiative associated with the corrective 
action. The comprehensiveness of the corrective action will also be 
considered, taking into account factors such as whether the action is 
focused narrowly to the specific violation or broadly to the general 
area of concern.

                  8. DOE's Contribution to a Violation

    There may be circumstances in which a violation of a classified 
information security requirement results, in part or entirely, from a 
direction given by DOE personnel to a DOE contractor to either take, or 
forbear from taking an action at a DOE facility. In such cases, DOE may 
refrain from issuing a notice

[[Page 531]]

of violation, and may mitigate, either partially or entirely, any 
proposed civil penalty, provided that the direction upon which the DOE 
contractor relied is documented in writing, contemporaneously with the 
direction. It should be emphasized, however, that no interpretation of a 
classified information security requirement is binding upon DOE unless 
issued in writing by the General Counsel. Further, as discussed in this 
section of this policy statement, lack of funding by itself will not be 
considered as a mitigating factor in enforcement actions.

                        9. Exercise of Discretion

    Because DOE wants to encourage and support DOE contractor initiative 
for prompt self-identification, reporting and correction of problems, 
DOE may exercise discretion as follows:
    a. In accordance with the previous discussion, DOE may refrain from 
issuing a civil penalty for a violation which meets all of the following 
criteria:
    (1) The violation is promptly identified and reported to DOE before 
DOE learns of it;
    (2) The violation is not willful or a violation that could 
reasonably be expected to have been prevented by the DOE contractor's 
corrective action for a previous violation;
    (3) The DOE contractor, upon discovery of the violation, has taken 
or begun to take prompt and appropriate action to correct the violation; 
and
    (4) The DOE contractor has taken, or has agreed to take, remedial 
action satisfactory to DOE to preclude recurrence of the violation and 
the underlying conditions which caused it.
    b. DOE may refrain from proposing a civil penalty for a violation 
involving a past problem that meets all of the following criteria:
    (1) It was identified by a DOE contractor as a result of a formal 
effort such as an annual self assessment that has a defined scope and 
timetable which is being aggressively implemented and reported;
    (2) Comprehensive corrective action has been taken or is well 
underway within a reasonable time following identification; and
    (3) It was not likely to be identified by routine contractor efforts 
such as normal surveillance or quality assurance activities.
    c. DOE will not issue a notice of violation for cases in which the 
violation discovered by the DOE contractor cannot reasonably be linked 
to the conduct of that contractor, provided that prompt and appropriate 
action is taken by the DOE contractor upon identification of the past 
violation to report to DOE and remedy the problem.
    d. DOE may refrain from issuing a notice of violation for an act or 
omission constituting noncompliance that meets all of the following 
criteria:
    (1) It was promptly identified by the contractor;
    (2) It is normally classified at a Severity Level III;
    (3) It was promptly reported to DOE;
    (4) Prompt and appropriate corrective action will be taken, 
including measures to prevent recurrence; and
    (5) It was not a willful violation or a violation that could 
reasonably be expected to have been prevented by the DOE contractor's 
corrective action for a previous violation.
    e. DOE may refrain from issuing a notice of violation for an act or 
omission constituting noncompliance that meets all of the following 
criteria:
    (1) It was an isolated Severity Level III violation identified 
during an inspection or evaluation conducted by the Office of 
Independent Oversight, or a DOE security survey, or during some other 
DOE assessment activity;
    (2) The identified noncompliance was properly reported by the 
contractor upon discovery;
    (3) The contractor initiated or completed appropriate assessment and 
corrective actions within a reasonable period, usually before the 
termination of the onsite inspection or integrated performance 
assessment; and
    (4) The violation was not willful or one which could reasonably be 
expected to have been prevented by the DOE contractor's corrective 
action for a previous violation.
    f. In situations where corrective actions have been completed before 
termination of an inspection or assessment, a formal response from the 
contractor is not required and the inspection or integrated performance 
assessment report serves to document the violation and the corrective 
action. However, in all instances, the contractor is required to report 
the noncompliance through established reporting mechanisms so the 
noncompliance issue and any corrective actions can be properly tracked 
and monitored.
    g. If DOE initiates an enforcement action for a violation at a 
Severity Level II or III and, as part of the corrective action for that 
violation, the DOE contractor identifies other examples of the violation 
with the same root cause, DOE may refrain from initiating an additional 
enforcement action. In determining whether to exercise this discretion, 
DOE will consider whether the DOE contractor acted reasonably and in a 
timely manner appropriate to the security significance of the initial 
violation, the comprehensiveness of the corrective action, whether the 
matter was reported, and whether the additional violation(s) 
substantially change the security significance or character of the 
concern arising out of the initial violation.
    h. The preceding paragraphs are solely intended to be examples 
indicating when enforcement discretion may be exercised to forego the 
issuance of a civil penalty or, in

[[Page 532]]

some cases, the initiation of any enforcement action at all. However, 
notwithstanding these examples, a civil penalty may be proposed or 
notice of violation issued when, in DOE's judgment, such action is 
warranted on the basis of the circumstances of an individual case.

[70 FR 3607, Jan. 26, 2005, as amended at 71 FR 68733, Nov. 28, 2006; 74 
FR 66033, Dec. 14, 2009]



PART 830_NUCLEAR SAFETY MANAGEMENT--Table of Contents



Sec.
830.1 Scope.
830.2 Exclusions.
830.3 Definitions.
830.4 General requirements.
830.5 Enforcement.
830.6 Recordkeeping.
830.7 Graded approach.

                Subpart A_Quality Assurance Requirements

830.120 Scope.
830.121 Quality Assurance Program (QAP).
830.122 Quality assurance criteria.

                   Subpart B_Safety Basis Requirements

830.200 Scope.
830.201 Performance of work.
830.202 Safety basis.
830.203 Unreviewed safety question process.
830.204 Documented safety analysis.
830.205 Technical safety requirements.
830.206 Preliminary documented safety analysis.
830.207 DOE approval of safety basis.

Appendix A to Subpart B of Part 830--General Statement of Safety Basis 
          Policy

    Authority: 42 U.S.C. 2201; 42 U.S.C. 7101 et seq.; and 50 U.S.C. 
2401 et seq.

    Source: 66 FR 1818, Jan. 10, 2001, unless otherwise noted.



Sec. 830.1  Scope.

    This part governs the conduct of DOE contractors, DOE personnel, and 
other persons conducting activities (including providing items and 
services) that affect, or may affect, the safety of DOE nuclear 
facilities.



Sec. 830.2  Exclusions.

    This part does not apply to:
    (a) Activities that are regulated through a license by the Nuclear 
Regulatory Commission (NRC) or a State under an Agreement with the NRC, 
including activities certified by the NRC under section 1701 of the 
Atomic Energy Act (Act);
    (b) Activities conducted under the authority of the Director, Naval 
Nuclear Propulsion, pursuant to Executive Order 12344, as set forth in 
Public Law 106-65;
    (c) Transportation activities which are regulated by the Department 
of Transportation;
    (d) Activities conducted under the Nuclear Waste Policy Act of 1982, 
as amended, and any facility identified under section 202(5) of the 
Energy Reorganization Act of 1974, as amended; and
    (e) Activities related to the launch approval and actual launch of 
nuclear energy systems into space.



Sec. 830.3  Definitions.

    (a) The following definitions apply to this part:
    Administrative controls means the provisions relating to 
organization and management, procedures, recordkeeping, assessment, and 
reporting necessary to ensure safe operation of a facility.
    Bases appendix means an appendix that describes the basis of the 
limits and other requirements in technical safety requirements.
    Critical assembly means special nuclear devices designed and used to 
sustain nuclear reactions, which may be subject to frequent core and 
lattice configuration change and which frequently may be used as mockups 
of reactor configurations.
    Criticality means the condition in which a nuclear fission chain 
reaction becomes self-sustaining.
    Design features means the design features of a nuclear facility 
specified in the technical safety requirements that, if altered or 
modified, would have a significant effect on safe operation.
    Document means recorded information that describes, specifies, 
reports, certifies, requires, or provides data or results.
    Documented safety analysis means a documented analysis of the extent 
to which a nuclear facility can be operated safely with respect to 
workers,

[[Page 533]]

the public, and the environment, including a description of the 
conditions, safe boundaries, and hazard controls that provide the basis 
for ensuring safety.
    Environmental restoration activities means the process(es) by which 
contaminated sites and facilities are identified and characterized and 
by which contamination is contained, treated, or removed and disposed.
    Existing DOE nuclear facility means a DOE nuclear facility in 
operation before April 9, 2001.
    Fissionable materials means a nuclide capable of sustaining a 
neutron-induced chain reaction (e.g., uranium-233, uranium-235, 
plutonium-238, plutonium-239, plutonium-241, neptunium-237, americium-
241, and curium-244).
    Graded approach means the process of ensuring that the level of 
analysis, documentation, and actions used to comply with a requirement 
in this part are commensurate with:
    (1) The relative importance to safety, safeguards, and security;
    (2) The magnitude of any hazard involved;
    (3) The life cycle stage of a facility;
    (4) The programmatic mission of a facility;
    (5) The particular characteristics of a facility;
    (6) The relative importance of radiological and nonradiological 
hazards; and
    (7) Any other relevant factor.
    Hazard means a source of danger (i.e., material, energy source, or 
operation) with the potential to cause illness, injury, or death to a 
person or damage to a facility or to the environment (without regard to 
the likelihood or credibility of accident scenarios or consequence 
mitigation).
    Hazard controls means measures to eliminate, limit, or mitigate 
hazards to workers, the public, or the environment, including
    (1) Physical, design, structural, and engineering features;
    (2) Safety structures, systems, and components;
    (3) Safety management programs;
    (4) Technical safety requirements; and
    (5) Other controls necessary to provide adequate protection from 
hazards.
    Item is an all-inclusive term used in place of any of the following: 
appurtenance, assembly, component, equipment, material, module, part, 
product, structure, subassembly, subsystem, system, unit, or support 
systems.
    Limiting conditions for operation means the limits that represent 
the lowest functional capability or performance level of safety 
structures, systems, and components required for safe operations.
    Limiting control settings means the settings on safety systems that 
control process variables to prevent exceeding a safety limit.
    Low-level residual fixed radioactivity means the remaining 
radioactivity following reasonable efforts to remove radioactive 
systems, components, and stored materials. The remaining radioactivity 
is composed of surface contamination that is fixed following chemical 
cleaning or some similar process; a component of surface contamination 
that can be picked up by smears; or activated materials within 
structures. The radioactivity can be characterized as low-level if the 
smearable radioactivity is less than the values defined for removable 
contamination by 10 CFR Part 835, Appendix D, Surface Contamination 
Values, and the hazard analysis results show that no credible accident 
scenario or work practices would release the remaining fixed 
radioactivity or activation components at levels that would prudently 
require the use of active safety systems, structures, or components to 
prevent or mitigate a release of radioactive materials.
    Major modification means a modification to a DOE nuclear facility 
that is completed on or after April 9, 2001 that substantially changes 
the existing safety basis for the facility.
    New DOE nuclear facility means a DOE nuclear facility that begins 
operation on or after April 9, 2001.
    Nonreactor nuclear facility means those facilities, activities or 
operations that involve, or will involve, radioactive and/or fissionable 
materials in such form and quantity that a nuclear or a nuclear 
explosive hazard potentially exists to workers, the public, or the 
environment, but does not include accelerators and their operations and

[[Page 534]]

does not include activities involving only incidental use and generation 
of radioactive materials or radiation such as check and calibration 
sources, use of radioactive sources in research and experimental and 
analytical laboratory activities, electron microscopes, and X-ray 
machines.
    Nuclear facility means a reactor or a nonreactor nuclear facility 
where an activity is conducted for or on behalf of DOE and includes any 
related area, structure, facility, or activity to the extent necessary 
to ensure proper implementation of the requirements established by this 
Part.
    Operating limits means those limits required to ensure the safe 
operation of a nuclear facility, including limiting control settings and 
limiting conditions for operation.
    Preliminary documented safety analysis means documentation prepared 
in connection with the design and construction of a new DOE nuclear 
facility or a major modification to a DOE nuclear facility that provides 
a reasonable basis for the preliminary conclusion that the nuclear 
facility can be operated safely through the consideration of factors 
such as
    (1) The nuclear safety design criteria to be satisfied;
    (2) A safety analysis that derives aspects of design that are 
necessary to satisfy the nuclear safety design criteria; and
    (3) An initial listing of the safety management programs that must 
be developed to address operational safety considerations.
    Process means a series of actions that achieves an end or result.
    Quality means the condition achieved when an item, service, or 
process meets or exceeds the user's requirements and expectations.
    Quality assurance means all those actions that provide confidence 
that quality is achieved.
    Quality Assurance Program (QAP) means the overall program or 
management system established to assign responsibilities and 
authorities, define policies and requirements, and provide for the 
performance and assessment of work.
    Reactor means any apparatus that is designed or used to sustain 
nuclear chain reactions in a controlled manner such as research, test, 
and power reactors, and critical and pulsed assemblies and any assembly 
that is designed to perform subcritical experiments that could 
potentially reach criticality; and, unless modified by words such as 
containment, vessel, or core, refers to the entire facility, including 
the housing, equipment and associated areas devoted to the operation and 
maintenance of one or more reactor cores.
    Record means a completed document or other media that provides 
objective evidence of an item, service, or process.
    Safety basis means the documented safety analysis and hazard 
controls that provide reasonable assurance that a DOE nuclear facility 
can be operated safely in a manner that adequately protects workers, the 
public, and the environment.
    Safety class structures, systems, and components means the 
structures, systems, or components, including portions of process 
systems, whose preventive or mitigative function is necessary to limit 
radioactive hazardous material exposure to the public, as determined 
from safety analyses.
    Safety evaluation report means the report prepared by DOE to 
document
    (1) The sufficiency of the documented safety analysis for a hazard 
category 1, 2, or 3 DOE nuclear facility;
    (2) The extent to which a contractor has satisfied the requirements 
of Subpart B of this part; and
    (3) The basis for approval by DOE of the safety basis for the 
facility, including any conditions for approval.
    Safety limits means the limits on process variables associated with 
those safety class physical barriers, generally passive, that are 
necessary for the intended facility function and that are required to 
guard against the uncontrolled release of radioactive materials.
    Safety management program means a program designed to ensure a 
facility is operated in a manner that adequately protects workers, the 
public, and the environment by covering a topic such as: quality 
assurance; maintenance of safety systems; personnel training; conduct of 
operations; inadvertent

[[Page 535]]

criticality protection; emergency preparedness; fire protection; waste 
management; or radiological protection of workers, the public, and the 
environment.
    Safety management system means an integrated safety management 
system established consistent with 48 CFR 970.5223-1.
    Safety significant structures, systems, and components means the 
structures, systems, and components which are not designated as safety 
class structures, systems, and components, but whose preventive or 
mitigative function is a major contributor to defense in depth and/or 
worker safety as determined from safety analyses.
    Safety structures, systems, and components means both safety class 
structures, systems, and components and safety significant structures, 
systems, and components.
    Service means the performance of work, such as design, 
manufacturing, construction, fabrication, assembly, decontamination, 
environmental restoration, waste management, laboratory sample analyses, 
inspection, nondestructive examination/testing, environmental 
qualification, equipment qualification, repair, installation, or the 
like.
    Surveillance requirements means requirements relating to test, 
calibration, or inspection to ensure that the necessary operability and 
quality of safety structures, systems, and components and their support 
systems required for safe operations are maintained, that facility 
operation is within safety limits, and that limiting control settings 
and limiting conditions for operation are met.
    Technical safety requirements (TSRs) means the limits, controls, and 
related actions that establish the specific parameters and requisite 
actions for the safe operation of a nuclear facility and include, as 
appropriate for the work and the hazards identified in the documented 
safety analysis for the facility: Safety limits, operating limits, 
surveillance requirements, administrative and management controls, use 
and application provisions, and design features, as well as a bases 
appendix.
    Unreviewed Safety Question (USQ) means a situation where
    (1) The probability of the occurrence or the consequences of an 
accident or the malfunction of equipment important to safety previously 
evaluated in the documented safety analysis could be increased;
    (2) The possibility of an accident or malfunction of a different 
type than any evaluated previously in the documented safety analysis 
could be created;
    (3) A margin of safety could be reduced; or
    (4) The documented safety analysis may not be bounding or may be 
otherwise inadequate.
    Unreviewed Safety Question process means the mechanism for keeping a 
safety basis current by reviewing potential unreviewed safety questions, 
reporting unreviewed safety questions to DOE, and obtaining approval 
from DOE prior to taking any action that involves an unreviewed safety 
question.
    Use and application provisions means the basic instructions for 
applying technical safety requirements.
    (b) Terms defined in the Act or in 10 CFR part 820 and not defined 
in this section of the rule are to be used consistent with the meanings 
given in the Act or in 10 CFR part 820.



Sec. 830.4  General requirements.

    (a) No person may take or cause to be taken any action inconsistent 
with the requirements of this part.
    (b) A contractor responsible for a nuclear facility must ensure 
implementation of, and compliance with, the requirements of this part.
    (c) The requirements of this part must be implemented in a manner 
that provides reasonable assurance of adequate protection of workers, 
the public, and the environment from adverse consequences, taking into 
account the work to be performed and the associated hazards.
    (d) If there is no contractor for a DOE nuclear facility, DOE must 
ensure implementation of, and compliance with, the requirements of this 
part.



Sec. 830.5  Enforcement.

    The requirements in this part are DOE Nuclear Safety Requirements 
and

[[Page 536]]

are subject to enforcement by all appropriate means, including the 
imposition of civil and criminal penalties in accordance with the 
provisions of 10 CFR part 820.



Sec. 830.6  Recordkeeping.

    A contractor must maintain complete and accurate records as 
necessary to substantiate compliance with the requirements of this part.



Sec. 830.7  Graded approach.

    Where appropriate, a contractor must use a graded approach to 
implement the requirements of this part, document the basis of the 
graded approach used, and submit that documentation to DOE. The graded 
approach may not be used in implementing the unreviewed safety question 
(USQ) process or in implementing technical safety requirements.



                Subpart A_Quality Assurance Requirements



Sec. 830.120  Scope.

    This subpart establishes quality assurance requirements for 
contractors conducting activities, including providing items or 
services, that affect, or may affect, nuclear safety of DOE nuclear 
facilities.



Sec. 830.121  Quality Assurance Program (QAP).

    (a) Contractors conducting activities, including providing items or 
services, that affect, or may affect, the nuclear safety of DOE nuclear 
facilities must conduct work in accordance with the Quality Assurance 
criteria in Sec. 830.122.
    (b) The contractor responsible for a DOE nuclear facility must:
    (1) Submit a QAP to DOE for approval and regard the QAP as approved 
90 days after submittal, unless it is approved or rejected by DOE at an 
earlier date.
    (2) Modify the QAP as directed by DOE.
    (3) Annually submit any changes to the DOE-approved QAP to DOE for 
approval. Justify in the submittal why the changes continue to satisfy 
the quality assurance requirements.
    (4) Conduct work in accordance with the QAP.
    (c) The QAP must:
    (1) Describe how the quality assurance criteria of Sec. 830.122 are 
satisfied.
    (2) Integrate the quality assurance criteria with the Safety 
Management System, or describe how the quality assurance criteria apply 
to the Safety Management System.
    (3) Use voluntary consensus standards in its development and 
implementation, where practicable and consistent with contractual and 
regulatory requirements, and identify the standards used.
    (4) Describe how the contractor responsible for the nuclear facility 
ensures that subcontractors and suppliers satisfy the criteria of Sec. 
830.122.



Sec. 830.122  Quality assurance criteria.

    The QAP must address the following management, performance, and 
assessment criteria:
    (a) Criterion 1--Management/Program.
    (1) Establish an organizational structure, functional 
responsibilities, levels of authority, and interfaces for those 
managing, performing, and assessing the work.
    (2) Establish management processes, including planning, scheduling, 
and providing resources for the work.
    (b) Criterion 2--Management/Personnel Training and Qualification.
    (1) Train and qualify personnel to be capable of performing their 
assigned work.
    (2) Provide continuing training to personnel to maintain their job 
proficiency.
    (c) Criterion 3--Management/Quality Improvement.
    (1) Establish and implement processes to detect and prevent quality 
problems.
    (2) Identify, control, and correct items, services, and processes 
that do not meet established requirements.
    (3) Identify the causes of problems and work to prevent recurrence 
as a part of correcting the problem.
    (4) Review item characteristics, process implementation, and other 
quality-related information to identify items, services, and processes 
needing improvement.
    (d) Criterion 4--Management/Documents and Records.

[[Page 537]]

    (1) Prepare, review, approve, issue, use, and revise documents to 
prescribe processes, specify requirements, or establish design.
    (2) Specify, prepare, review, approve, and maintain records.
    (e) Criterion 5--Performance/Work Processes.
    (1) Perform work consistent with technical standards, administrative 
controls, and other hazard controls adopted to meet regulatory or 
contract requirements, using approved instructions, procedures, or other 
appropriate means.
    (2) Identify and control items to ensure their proper use.
    (3) Maintain items to prevent their damage, loss, or deterioration.
    (4) Calibrate and maintain equipment used for process monitoring or 
data collection.
    (f) Criterion 6--Performance/Design.
    (1) Design items and processes using sound engineering/scientific 
principles and appropriate standards.
    (2) Incorporate applicable requirements and design bases in design 
work and design changes.
    (3) Identify and control design interfaces.
    (4) Verify or validate the adequacy of design products using 
individuals or groups other than those who performed the work.
    (5) Verify or validate work before approval and implementation of 
the design.
    (g) Criterion 7--Performance/Procurement.
    (1) Procure items and services that meet established requirements 
and perform as specified.
    (2) Evaluate and select prospective suppliers on the basis of 
specified criteria.
    (3) Establish and implement processes to ensure that approved 
suppliers continue to provide acceptable items and services.
    (h) Criterion 8--Performance/Inspection and Acceptance Testing.
    (1) Inspect and test specified items, services, and processes using 
established acceptance and performance criteria.
    (2) Calibrate and maintain equipment used for inspections and tests.
    (i) Criterion 9--Assessment/Management Assessment. Ensure managers 
assess their management processes and identify and correct problems that 
hinder the organization from achieving its objectives.
    (j) Criterion 10--Assessment/Independent Assessment.
    (1) Plan and conduct independent assessments to measure item and 
service quality, to measure the adequacy of work performance, and to 
promote improvement.
    (2) Establish sufficient authority, and freedom from line 
management, for the group performing independent assessments.
    (3) Ensure persons who perform independent assessments are 
technically qualified and knowledgeable in the areas to be assessed.



                   Subpart B_Safety Basis Requirements



Sec. 830.200  Scope.

    This Subpart establishes safety basis requirements for hazard 
category 1, 2, and 3 DOE nuclear facilities.



Sec. 830.201  Performance of work.

    A contractor must perform work in accordance with the safety basis 
for a hazard category 1, 2, or 3 DOE nuclear facility and, in 
particular, with the hazard controls that ensure adequate protection of 
workers, the public, and the environment.



Sec. 830.202  Safety basis.

    (a) The contractor responsible for a hazard category 1, 2, or 3 DOE 
nuclear facility must establish and maintain the safety basis for the 
facility.
    (b) In establishing the safety basis for a hazard category 1, 2, or 
3 DOE nuclear facility, the contractor responsible for the facility 
must:
    (1) Define the scope of the work to be performed;
    (2) Identify and analyze the hazards associated with the work;
    (3) Categorize the facility consistent with DOE-STD-1027-92 
(``Hazard Categorization and Accident Analysis Techniques for compliance 
with DOE Order 5480.23, Nuclear Safety Analysis Reports,'' Change Notice 
1, September 1997);

[[Page 538]]

    (4) Prepare a documented safety analysis for the facility; and (5) 
Establish the hazard controls upon which the contractor will rely to 
ensure adequate protection of workers, the public, and the environment.
    (c) In maintaining the safety basis for a hazard category 1, 2, or 3 
DOE nuclear facility, the contractor responsible for the facility must:
    (1) Update the safety basis to keep it current and to reflect 
changes in the facility, the work and the hazards as they are analyzed 
in the documented safety analysis;
    (2) Annually submit to DOE either the updated documented safety 
analysis for approval or a letter stating that there have been no 
changes in the documented safety analysis since the prior submission; 
and
    (3) Incorporate in the safety basis any changes, conditions, or 
hazard controls directed by DOE.



Sec. 830.203  Unreviewed safety question process.

    (a) The contractor responsible for a hazard category 1, 2, or 3 DOE 
nuclear facility must establish, implement, and take actions consistent 
with a USQ process that meets the requirements of this section.
    (b) The contractor responsible for a hazard category 1, 2, or 3 DOE 
existing nuclear facility must submit for DOE approval a procedure for 
its USQ process by April 10, 2001. Pending DOE approval of the USQ 
procedure, the contractor must continue to use its existing USQ 
procedure. If the existing procedure already meets the requirements of 
this section, the contractor must notify DOE by April 10, 2001 and 
request that DOE issue an approval of the existing procedure.
    (c) The contractor responsible for a hazard category 1, 2, or 3 DOE 
new nuclear facility must submit for DOE approval a procedure for its 
USQ process on a schedule that allows DOE approval in a safety 
evaluation report issued pursuant to section 207(d) of this Part.
    (d) The contractor responsible for a hazard category 1, 2, or 3 DOE 
nuclear facility must implement the DOE-approved USQ procedure in 
situations where there is a:
    (1) Temporary or permanent change in the facility as described in 
the existing documented safety analysis;
    (2) Temporary or permanent change in the procedures as described in 
the existing documented safety analysis;
    (3) Test or experiment not described in the existing documented 
safety analysis; or (4) Potential inadequacy of the documented safety 
analysis because the analysis potentially may not be bounding or may be 
otherwise inadequate.
    (e) A contractor responsible for a hazard category 1, 2, or 3 DOE 
nuclear facility must obtain DOE approval prior to taking any action 
determined to involve a USQ.
    (f) The contractor responsible for a hazard category 1, 2, or 3 DOE 
nuclear facility must annually submit to DOE a summary of the USQ 
determinations performed since the prior submission.
    (g) If a contractor responsible for a hazard category 1, 2, or 3 DOE 
nuclear facility discovers or is made aware of a potential inadequacy of 
the documented safety analysis, it must:
    (1) Take action, as appropriate, to place or maintain the facility 
in a safe condition until an evaluation of the safety of the situation 
is completed;
    (2) Notify DOE of the situation;
    (3) Perform a USQ determination and notify DOE promptly of the 
results; and (4) Submit the evaluation of the safety of the situation to 
DOE prior to removing any operational restrictions initiated to meet 
paragraph (g)(1) of this section.



Sec. 830.204  Documented safety analysis.

    (a) The contractor responsible for a hazard category 1, 2, or 3 DOE 
nuclear facility must obtain approval from DOE for the methodology used 
to prepare the documented safety analysis for the facility unless the 
contractor uses a methodology set forth in Table 2 of appendix A to this 
part.
    (b) The documented safety analysis for a hazard category 1, 2, or 3 
DOE nuclear facility must, as appropriate for the complexities and 
hazards associated with the facility:
    (1) Describe the facility (including the design of safety 
structures, systems and components) and the work to be performed;

[[Page 539]]

    (2) Provide a systematic identification of both natural and man-made 
hazards associated with the facility;
    (3) Evaluate normal, abnormal, and accident conditions, including 
consideration of natural and man-made external events, identification of 
energy sources or processes that might contribute to the generation or 
uncontrolled release of radioactive and other hazardous materials, and 
consideration of the need for analysis of accidents which may be beyond 
the design basis of the facility;
    (4) Derive the hazard controls necessary to ensure adequate 
protection of workers, the public, and the environment, demonstrate the 
adequacy of these controls to eliminate, limit, or mitigate identified 
hazards, and define the process for maintaining the hazard controls 
current at all times and controlling their use;
    (5) Define the characteristics of the safety management programs 
necessary to ensure the safe operation of the facility, including (where 
applicable) quality assurance, procedures, maintenance, personnel 
training, conduct of operations, emergency preparedness, fire 
protection, waste management, and radiation protection; and
    (6) With respect to a nonreactor nuclear facility with fissionable 
material in a form and amount sufficient to pose a potential for 
criticality, define a criticality safety program that:
    (i) Ensures that operations with fissionable material remain 
subcritical under all normal and credible abnormal conditions,
    (ii) Identifies applicable nuclear criticality safety standards, and
    (iii) Describes how the program meets applicable nuclear criticality 
safety standards.



Sec. 830.205  Technical safety requirements.

    (a) A contractor responsible for a hazard category 1, 2, or 3 DOE 
nuclear facility must:
    (1) Develop technical safety requirements that are derived from the 
documented safety analysis;
    (2) Prior to use, obtain DOE approval of technical safety 
requirements and any change to technical safety requirements; and
    (3) Notify DOE of any violation of a technical safety requirement.
    (b) A contractor may take emergency actions that depart from an 
approved technical safety requirement when no actions consistent with 
the technical safety requirement are immediately apparent, and when 
these actions are needed to protect workers, the public or the 
environment from imminent and significant harm. Such actions must be 
approved by a certified operator for a reactor or by a person in 
authority as designated in the technical safety requirements for 
nonreactor nuclear facilities. The contractor must report the emergency 
actions to DOE as soon as practicable.
    (c) A contractor for an environmental restoration activity may 
follow the provisions of 29 CFR 1910.120 or 1926.65 to develop the 
appropriate hazard controls (rather than the provisions for technical 
safety requirements in paragraph (a) of this section), provided the 
activity involves either:
    (1) Work not done within a permanent structure, or
    (2) The decommissioning of a facility with only low-level residual 
fixed radioactivity.



Sec. 830.206  Preliminary documented safety analysis.

    If construction begins after December 11, 2000, the contractor 
responsible for a hazard category 1, 2, or 3 new DOE nuclear facility or 
a major modification to a hazard category 1, 2, or 3 DOE nuclear 
facility must:
    (a) Prepare a preliminary documented safety analysis for the 
facility, and
    (b) Obtain DOE approval of:
    (1) The nuclear safety design criteria to be used in preparing the 
preliminary documented safety analysis unless the contractor uses the 
design criteria in DOE Order 420.1, Facility Safety; and
    (2) The preliminary documented safety analysis before the contractor 
can procure materials or components or begin construction; provided that 
DOE may authorize the contractor to perform limited procurement and 
construction activities without approval of a preliminary documented 
safety analysis if DOE determines that the activities are not 
detrimental to public

[[Page 540]]

health and safety and are in the best interests of DOE.



Sec. 830.207  DOE approval of safety basis.

    (a) By April 10, 2003, a contractor responsible for a hazard 
category 1, 2, or 3 existing DOE nuclear facility must submit for DOE 
approval a safety basis that meets the requirements of this Subpart.
    (b) Pending issuance of a safety evaluation report in which DOE 
approves a safety basis for a hazard category 1, 2, or 3 existing DOE 
nuclear facility, the contractor responsible for the facility must 
continue to perform work in accordance with the safety basis for the 
facility in effect on October 10, 2000, or as approved by DOE at a later 
date, and maintain the existing safety basis consistent with the 
requirements of this Subpart.
    (c) If the safety basis for a hazard category 1, 2, or 3 existing 
DOE nuclear facility already meets the requirements of this Subpart and 
reflects the current work and hazards associated with the facility, the 
contractor responsible for the facility must, by April 9, 2001, notify 
DOE, document the adequacy of the existing safety basis and request DOE 
to issue a safety evaluation report that approves the existing safety 
basis. If DOE does not issue a safety evaluation report by October 10, 
2001, the contractor must submit a safety basis pursuant to paragraph 
(a) of this section.
    (d) With respect to a hazard category 1, 2, or 3 new DOE nuclear 
facility or a major modification to a hazard category 1, 2, or 3 DOE 
nuclear facility, a contractor may not begin operation of the facility 
or modification prior to the issuance of a safety evaluation report in 
which DOE approves the safety basis for the facility or modification.



 Sec. Appendix A to Subpart B of Part 830--General Statement of Safety 
                              Basis Policy

                             A. Introduction

    This appendix describes DOE's expectations for the safety basis 
requirements of 10 CFR Part 830, acceptable methods for implementing 
these requirements, and criteria DOE will use to evaluate compliance 
with these requirements. This Appendix does not create any new 
requirements and should be used consistently with DOE Policy 450.2A, 
``Identifying, Implementing and Complying with Environment, Safety and 
Health Requirements'' (May 15, 1996).

                               B. Purpose

    1. The safety basis requirements of Part 830 require the contractor 
responsible for a DOE nuclear facility to analyze the facility, the work 
to be performed, and the associated hazards and to identify the 
conditions, safe boundaries, and hazard controls necessary to protect 
workers, the public and the environment from adverse consequences. These 
analyses and hazard controls constitute the safety basis upon which the 
contractor and DOE rely to conclude that the facility can be operated 
safely. Performing work consistent with the safety basis provides 
reasonable assurance of adequate protection of workers, the public, and 
the environment.
    2. The safety basis requirements are intended to further the 
objective of making safety an integral part of how work is performed 
throughout the DOE complex. Developing a thorough understanding of a 
nuclear facility, the work to be performed, the associated hazards and 
the needed hazard controls is essential to integrating safety into 
management and work at all levels. Performing work in accordance with 
the safety basis for a nuclear facility is the realization of that 
objective.

                                C. Scope

    1. A contractor must establish and maintain a safety basis for a 
hazard category 1, 2, or 3 DOE nuclear facility because these facilities 
have the potential for significant radiological consequences. DOE-STD-
1027-92 (``Hazard Categorization and Accident Analysis Techniques for 
compliance with DOE Order 5480.23, Nuclear Safety Analysis Reports,'' 
Change Notice 1, September 1997) sets forth the methodology for 
categorizing a DOE nuclear facility (see Table 1). The hazard 
categorization must be based on an inventory of all radioactive 
materials within a nuclear facility.
    2. Unlike the quality assurance requirements of Part 830 that apply 
to all DOE nuclear facilities (including radiological facilities), the 
safety basis requirements only apply to hazard category 1, 2, and 3 
nuclear facilities and do not apply to nuclear facilities below hazard 
category 3.

[[Page 541]]



                                 Table 1
------------------------------------------------------------------------
A DOE nuclear facility categorized as *
                  * *                      Has the potential for * * *
------------------------------------------------------------------------
Hazard category 1......................  Significant off-site
                                          consequences.
Hazard category 2......................  Significant on-site
                                          consequences beyond localized
                                          consequences.
Hazard category 3......................  Only local significant
                                          consequences.
Below category 3.......................  Only consequences less than
                                          those that provide a basis for
                                          categorization as a hazard
                                          category 1, 2, or 3 nuclear
                                          facility.
------------------------------------------------------------------------

                     D. Integrated Safety Management

    1. The safety basis requirements are consistent with integrated 
safety management. DOE expects that, if a contractor complies with the 
Department of Energy Acquisition Regulation (DEAR) clause on integration 
of environment, safety, and health into work planning and execution (48 
CFR 970.5223-1, Integration of Environment, Safety and Health into Work 
Planning and Execution) and the DEAR clause on laws, regulations, and 
DOE directives (48 CFR 970.5204-2, Laws, Regulations and DOE 
Directives), the contractor will have established the foundation to meet 
the safety basis requirements.
    2. The processes embedded in a safety management system should lead 
to a contractor establishing adequate safety bases and safety management 
programs that will meet the safety basis requirements of this Subpart. 
Consequently, the DOE expects if a contractor has adequately implemented 
integrated safety management, few additional requirements will stem from 
this Subpart and, in such cases, the existing safety basis prepared in 
accordance with integrated safety management provisions, including 
existing DOE safety requirements in contracts, should meet the 
requirements of this Subpart.
    3. DOE does not expect there to be any conflict between contractual 
requirements and regulatory requirements. In fact, DOE expects that 
contract provisions will be used to provide more detail on 
implementation of safety basis requirements such as preparing a 
documented safety analysis, developing technical safety requirements, 
and implementing a USQ process.

               E. Enforcement of Safety Basis Requirements

    1. Enforcement of the safety basis requirements will be performance 
oriented. That is, DOE will focus its enforcement efforts on whether a 
contractor operates a nuclear facility consistent with the safety basis 
for the facility and, in particular, whether work is performed in 
accordance with the safety basis.
    2. As part of the approval process, DOE will review the content and 
quality of the safety basis documentation. DOE intends to use the 
approval process to assess the adequacy of a safety basis developed by a 
contractor to ensure that workers, the public, and the environment are 
provided reasonable assurance of adequate protection from identified 
hazards. Once approved by DOE, the safety basis documentation will not 
be subject to regulatory enforcement actions unless DOE determines that 
the information which supports the documentation is not complete and 
accurate in all material respects, as required by 10 CFR 820.11. This is 
consistent with the DOE enforcement provisions and policy in 10 CFR Part 
820.
    3. DOE does not intend the adoption of the safety basis requirements 
to affect the existing quality assurance requirements or the existing 
obligation of contractors to comply with the quality assurance 
requirements. In particular, in conjunction with the adoption of the 
safety basis requirements, DOE revised the language in 10 CFR 
830.122(e)(1) to make clear that hazard controls are part of the work 
processes to which a contractor and other persons must adhere when 
performing work. This obligation to perform work consistent with hazard 
controls adopted to meet regulatory or contract requirements existed 
prior to the adoption of the safety basis requirements and is both 
consistent with and independent of the safety basis requirements.
    4. A documented safety analysis must address all hazards (that is, 
both radiological and nonradiological hazards) and the controls 
necessary to provide adequate protection to the public, workers, and the 
environment from these hazards. Section 234A of the Atomic Energy Act, 
however, only authorizes DOE to issue civil penalties for violations of 
requirements related to nuclear safety. Therefore, DOE will impose civil 
penalties for violations of the safety basis requirements (including 
hazard controls) only if they are related to nuclear safety.

                      F. Documented Safety Analysis

    1. A documented safety analysis must demonstrate the extent to which 
a nuclear facility can be operated safely with respect to workers, the 
public, and the environment.
    2. DOE expects a contractor to use a graded approach to develop a 
documented safety

[[Page 542]]

analysis and describe how the graded approach was applied. The level of 
detail, analysis, and documentation will reflect the complexity and 
hazard associated with a particular facility. Thus, the documented 
safety analysis for a simple, low hazard facility may be relatively 
short and qualitative in nature, while the documented safety analysis 
for a complex, high hazard facility may be quite elaborate and more 
quantitative. DOE will work with its contractors to ensure a documented 
safety analysis is appropriate for the facility for which it is being 
developed.
    3. Because DOE has ultimate responsibility for the safety of its 
facilities, DOE will review each documented safety analysis to determine 
whether the rigor and detail of the documented safety analysis are 
appropriate for the complexity and hazards expected at the nuclear 
facility. In particular, DOE will evaluate the documented safety 
analysis by considering the extent to which the documented safety 
analysis (1) satisfies the provisions of the methodology used to prepare 
the documented safety analysis and (2) adequately addresses the criteria 
set forth in 10 CFR 830.204(b). DOE will prepare a Safety Evaluation 
Report to document the results of its review of the documented safety 
analysis. A documented safety analysis must contain any conditions or 
changes required by DOE.
    4. In most cases, the contract will provide the framework for 
specifying the methodology and schedule for developing a documented 
safety analysis. Table 2 sets forth acceptable methodologies for 
preparing a documented safety analysis.

                                 Table 2
------------------------------------------------------------------------
                                            May prepare its documented
  The contractor responsible for * * *       safety analyses by * * *
------------------------------------------------------------------------
(1) A DOE reactor......................  Using the method in U.S.
                                          Nuclear Regulatory Commission
                                          Regulatory Guide 1.70,
                                          Standard Format and Content of
                                          Safety Analysis Reports for
                                          Nuclear Power Plants, or
                                          successor document.
(2) A DOE nonreactor nuclear facility..  Using the method in DOE-STD-
                                          3009, Change Notice No. 1,
                                          January 2000, Preparation
                                          Guide for U.S. Department of
                                          Energy Nonreactor Nuclear
                                          Facility Safety Analysis
                                          Reports, July 1994, or
                                          successor document.
(3) A DOE nuclear facility with a        Using the method in either:
 limited operational life.               (1) DOE-STD-3009-, Change
                                          Notice No. 1, January 2000, or
                                          successor document, or
                                         (2) DOE-STD-3011-94, Guidance
                                          for Preparation of DOE 5480.22
                                          (TSR) and DOE 5480.23 (SAR)
                                          Implementation Plans, November
                                          1994, or successor document.
(4) The deactivation or the transition   Using the method in either:
 surveillance and maintenance of a DOE   (1) DOE-STD-3009, Change Notice
 nuclear facility.                        No. 1, January 2000, or
                                          successor document, or
                                         (2) DOE-STD-3011-94 or
                                          successor document.
(5) The decommissioning of a DOE         (1) Using the method in DOE-STD-
 nuclear facility.                        1120-98, Integration of
                                          Environment, Safety, and
                                          Health into Facility
                                          Disposition Activities, May
                                          1998, or successor document;
                                         (2) Using the provisions in 29
                                          CFR 1910.120 (or 29 CFR
                                          1926.65 for construction
                                          activities) for developing
                                          Safety and Health Programs,
                                          Work Plans, Health and Safety
                                          Plans, and Emergency Response
                                          Plans to address public
                                          safety, as well as worker
                                          safety; and
                                         (3) Deriving hazard controls
                                          based on the Safety and Health
                                          Programs, the Work Plans, the
                                          Health and Safety Plans, and
                                          the Emergency Response Plans.
(6) A DOE environmental restoration      (1) Using the method in DOE-STD-
 activity that involves either work not   1120-98 or successor document,
 done within a permanent structure or     and
 the decommissioning of a facility with  (2) Using the provisions in 29
 only low-level residual fixed            CFR 1910.120 (or 29 CFR
 radioactivity.                           1926.65 for construction
                                          activities) for developing a
                                          Safety and Health Program and
                                          a site-specific Health and
                                          Safety Plan (including
                                          elements for Emergency
                                          Response Plans, conduct of
                                          operations, training and
                                          qualifications, and
                                          maintenance management).
(7) A DOE nuclear explosive facility     Developing its documented
 and the nuclear explosive operations     safety analysis in two pieces:
 conducted therein.                      (1) A Safety Analysis Report
                                          for the nuclear facility that
                                          considers the generic nuclear
                                          explosive operations and is
                                          prepared in accordance with
                                          DOE-STD-3009, Change Notice
                                          No. 1, January 2000, or
                                          successor document, and
                                         (2) A Hazard Analysis Report
                                          for the specific nuclear
                                          explosive operations prepared
                                          in accordance with DOE-STD-
                                          3016-99, Hazards Analysis
                                          Reports for Nuclear Explosive
                                          Operations, February 1999, or
                                          successor document.

[[Page 543]]

 
(8) A DOE hazard category 3 nonreactor   Using the methods in Chapters
 nuclear facility.                        2, 3, 4, and 5 of DOE-STD-
                                          3009, Change Notice No. 1,
                                          January 2000, or successor
                                          document to address in a
                                          simplified fashion:
                                         (1) The basic description of
                                          the facility/activity and its
                                          operations, including safety
                                          structures, systems, and
                                          components;
                                         (2) A qualitative hazards
                                          analysis; and
                                         (3) The hazard controls
                                          (consisting primarily of
                                          inventory limits and safety
                                          management programs) and their
                                          bases.
(9) Transportation activities..........  (1) Preparing a Safety Analysis
                                          Report for Packaging in
                                          accordance with DOE-O-460.1A,
                                          Packaging and Transportation
                                          Safety, October 2, 1996, or
                                          successor document and
                                         (2) Preparing a Transportation
                                          Safety Document in accordance
                                          with DOE-G-460.1-1,
                                          Implementation Guide for Use
                                          with DOE O 460.1A, Packaging
                                          and Transportation Safety,
                                          June 5, 1997, or successor
                                          document.
(10) Transportation and onsite transfer  (1) Preparing a Safety Analysis
 of nuclear explosives, nuclear           Report for Packaging in
 components, Navel nuclear fuel           accordance with DOE-O-461.1,
 elements, Category I and Category II     Packaging and Transportation
 special nuclear materials, special       of Materials of National
 assemblies, and other materials of       Security Interest, September
 national security.                       29, 2000, or successor
                                          document and
                                         (2) Preparing a Transportation
                                          Safety Document in accordance
                                          with DOE-M-461.1-1, Packaging
                                          and Transfer of Materials of
                                          National Security Interest
                                          Manual, September 29, 2000, or
                                          successor document.
------------------------------------------------------------------------

    5. Table 2 refers to specific types of nuclear facilities. These 
references are not intended to constitute an exhaustive list of the 
specific types of nuclear facilities. Part 830 defines nuclear facility 
broadly to include all those facilities, activities, or operations that 
involve, or will involve, radioactive and/or fissionable materials in 
such form and quantity that a nuclear or a nuclear explosive hazard 
potentially exists to the employees or the general public, and to 
include any related area, structure, facility, or activity to the extent 
necessary to ensure proper implementation of the requirements 
established by Part 830. The only exceptions are those facilities 
specifically excluded such as accelerators. Table 3 defines the specific 
nuclear facilities referenced in Table 2 that are not defined in 10 CFR 
830.3

                                 Table 3
------------------------------------------------------------------------
     For purposes of Table 2, * * *                means * * *
------------------------------------------------------------------------
(1) Deactivation.......................  The process of placing a
                                          facility in a stable and known
                                          condition, including the
                                          removal of hazardous and
                                          radioactive materials
(2) Decontamination....................  The removal or reduction of
                                          residual radioactive and
                                          hazardous materials by
                                          mechanical, chemical, or other
                                          techniques to achieve a stated
                                          objective or end condition
(3) Decommissioning....................  Those actions taking place
                                          after deactivation of a
                                          nuclear facility to retire it
                                          from service and includes
                                          surveillance and maintenance,
                                          decontamination, and/or
                                          dismantlement.
(4) Environmental restoration            The process by which
 activities.                              contaminated sites and
                                          facilities are identified and
                                          characterized and by which
                                          existing contamination is
                                          contained, or removed and
                                          disposed
(5) Generic nuclear explosive operation  A characterization that
                                          considers the collective
                                          attributes (such as special
                                          facility system requirements,
                                          physical weapon
                                          characteristics, or quantities
                                          and chemical/physical forms of
                                          hazardous materials) for all
                                          projected nuclear explosive
                                          operations to be conducted at
                                          a facility
(6) Nuclear explosive facility.........  A nuclear facility at which
                                          nuclear operations and
                                          activities involving a nuclear
                                          explosive may be conducted
(7) Nuclear explosive operation........  Any activity involving a
                                          nuclear explosive, including
                                          activities in which main-
                                          charge, high-explosive parts
                                          and pits are collocated.
(8) Nuclear facility with a limited      A nuclear facility for which
 operational life.                        there is a short remaining
                                          operational period before
                                          ending the facility's mission
                                          and initiating deactivation
                                          and decommissioning and for
                                          which there are no intended
                                          additional missions other than
                                          cleanup
(9) Specific nuclear explosive           A specific nuclear explosive
 operation.                               subjected to the stipulated
                                          steps of an individual
                                          operation, such as assembly or
                                          disassembly

[[Page 544]]

 
(10) Transition surveillance and         Activities conducted when a
 maintenance activities.                  facility is not operating or
                                          during deactivation,
                                          decontamination, and
                                          decommissioning operations
                                          when surveillance and
                                          maintenance are the
                                          predominant activities being
                                          conducted at the facility.
                                          These activities are necessary
                                          for satisfactory containment
                                          of hazardous materials and
                                          protection of workers, the
                                          public, and the environment.
                                          These activities include
                                          providing periodic
                                          inspections, maintenance of
                                          structures, systems, and
                                          components, and actions to
                                          prevent the alteration of
                                          hazardous materials to an
                                          unsafe state
------------------------------------------------------------------------

    6. If construction begins after December 11, 2000, the contractor 
responsible for the design and construction of a new DOE nuclear 
facility or a major modification to an existing DOE nuclear facility 
must prepare a preliminary documented safety analysis. A preliminary 
documented safety analysis can ensure that substantial costs and time 
are not wasted in constructing a nuclear facility that will not be 
acceptable to DOE. If a contractor is required to prepare a preliminary 
documented safety analysis, the contractor must obtain DOE approval of 
the preliminary documented safety analysis prior to procuring materials 
or components or beginning construction. DOE, however, may authorize the 
contractor to perform limited procurement and construction activities 
without approval of a preliminary documented safety analysis if DOE 
determines that the activities are not detrimental to public health and 
safety and are in the best interests of DOE. DOE Order 420.1, Facility 
Safety, sets forth acceptable nuclear safety design criteria for use in 
preparing a preliminary documented safety analysis. As a general matter, 
DOE does not expect preliminary documented safety analyses to be needed 
for activities that do not involve significant construction such as 
environmental restoration activities, decontamination and 
decommissioning activities, specific nuclear explosive operations, or 
transition surveillance and maintenance activities.

                           G. Hazard Controls

    1. Hazard controls are measures to eliminate, limit, or mitigate 
hazards to workers, the public, or the environment. They include (1) 
physical, design, structural, and engineering features; (2) safety 
structures, systems, and components; (3) safety management programs; (4) 
technical safety requirements; and (5) other controls necessary to 
provide adequate protection from hazards.
    2. The types and specific characteristics of the safety management 
programs necessary for a DOE nuclear facility will be dependent on the 
complexity and hazards associated with the nuclear facility and the work 
being performed. In most cases, however, a contractor should consider 
safety management programs covering topics such as quality assurance, 
procedures, maintenance, personnel training, conduct of operations, 
criticality safety, emergency preparedness, fire protection, waste 
management, and radiation protection. In general, DOE Orders set forth 
DOE's expectations concerning specific topics. For example, DOE Order 
420.1 provides DOE's expectations with respect to fire protection and 
criticality safety.
    3. Safety structures, systems, and components require formal 
definition of minimum acceptable performance in the documented safety 
analysis. This is accomplished by first defining a safety function, then 
describing the structure, systems, and components, placing functional 
requirements on those portions of the structures, systems, and 
components required for the safety function, and identifying performance 
criteria that will ensure functional requirements are met. Technical 
safety requirements are developed to ensure the operability of the 
safety structures, systems, and components and define actions to be 
taken if a safety structure, system, or component is not operable.
    4. Technical safety requirements establish limits, controls, and 
related actions necessary for the safe operation of a nuclear facility. 
The exact form and contents of technical safety requirements will depend 
on the circumstances of a particular nuclear facility as defined in the 
documented safety analysis for the nuclear facility. As appropriate, 
technical safety requirements may have sections on (1) safety limits, 
(2) operating limits, (3) surveillance requirements, (4) administrative 
controls, (5) use and application, and (6) design features. It may also 
have an appendix on the bases for the limits and requirements. DOE Guide 
423.X, Implementation Guide for Use in Developing Technical Safety 
Requirements (TSRs) provides a complete description of what technical 
safety requirements should contain and how they should be developed and 
maintained.
    5. DOE will examine and approve the technical safety requirements as 
part of preparing the safety evaluation report and reviewing updates to 
the safety basis. As with

[[Page 545]]

all hazard controls, technical safety requirements must be kept current 
and reflect changes in the facility, the work and the hazards as they 
are analyzed in the documented safety analysis. In addition, DOE expects 
a contractor to maintain technical safety requirements, and other hazard 
controls as appropriate, as controlled documents with an authorized 
users list.
    6. Table 4 sets forth DOE's expectations concerning acceptable 
technical safety requirements.

                                 Table 4
------------------------------------------------------------------------
     As appropriate for a
    particular DOE nuclear
 facility, the section of the      Will provide information on * * *
technical safety requirements
           on * * *
------------------------------------------------------------------------
(1) Safety limits............  The limits on process variables
                                associated with those safety class
                                physical barriers, generally passive,
                                that are necessary for the intended
                                facility function and that are required
                                to guard against the uncontrolled
                                release of radioactive materials. The
                                safety limit section describes, as
                                precisely as possible, the parameters
                                being limited, states the limit in
                                measurable units (pressure, temperature,
                                flow, etc.), and indicates the
                                applicability of the limit. The safety
                                limit section also describes the actions
                                to be taken in the event that the safety
                                limit is exceeded. These actions should
                                first place the facility in the safe,
                                stable condition attainable, including
                                total shutdown (except where such action
                                might reduce the margin of safety) or
                                should verify that the facility already
                                is safe and stable and will remain so.
                                The technical safety requirement should
                                state that the contractor must obtain
                                DOE authorization to restart the nuclear
                                facility following a violation of a
                                safety limit. The safety limit section
                                also establishes the steps and time
                                limits to correct the out-of-
                                specification condition.
(2) Operating limits.........  Those limits which are required to ensure
                                the safe operation of a nuclear
                                facility. The operating limits section
                                may include subsections on limiting
                                control settings and limiting conditions
                                for operation.
(3) Limiting control settings  The settings on safety systems that
                                control process variables to prevent
                                exceeding a safety limit. The limited
                                control settings section normally
                                contains the settings for automatic
                                alarms and for the automatic or
                                nonautomatic initiation of protective
                                actions related to those variables
                                associated with the function of safety
                                class structures, systems, or components
                                if the safety analysis shows that they
                                are relied upon to mitigate or prevent
                                an accident. The limited control
                                settings section also identifies the
                                protective actions to be taken at the
                                specific settings chosen in order to
                                correct a situation automatically or
                                manually such that the related safety
                                limit is not exceeded. Protective
                                actions may include maintaining the
                                variables within the requirements and
                                repairing the automatic device promptly
                                or shutting down the affected part of
                                the process and, if required, the entire
                                facility.
(4) Limiting conditions for    The limits that represent the lowest
 operations.                    functional capability or performance
                                level of safety structures, systems, and
                                components required to perform an
                                activity safely. The limiting conditions
                                for operation section describes, as
                                precisely as possible, the lowest
                                functional capability or performance
                                level of equipment required for
                                continued safe operation of the
                                facility. The limiting conditions for
                                operation section also states the action
                                to be taken to address a condition not
                                meeting the limiting conditions for
                                operation section. Normally this simply
                                provides for the adverse condition being
                                corrected in a certain time frame and
                                for further action if this is
                                impossible.
(5) Surveillance requirements  Requirements relating to test,
                                calibration, or inspection to assure
                                that the necessary operability and
                                quality of safety structures, systems,
                                and components is maintained; that
                                facility operation is within safety
                                limits; and that limiting control
                                settings and limiting conditions for
                                operation are met. If a required
                                surveillance is not successfully
                                completed, the contractor is expected to
                                assume the systems or components
                                involved are inoperable and take the
                                actions defined by the technical safety
                                requirement until the systems or
                                components can be shown to be operable.
                                If, however, a required surveillance is
                                not performed within its required
                                frequency, the contractor is allowed to
                                perform the surveillance within 24 hours
                                or the original frequency, whichever is
                                smaller, and confirm operability.
(6) Administrative controls..  Organization and management, procedures,
                                recordkeeping, assessment, and reporting
                                necessary to ensure safe operation of a
                                facility consistent with the technical
                                safety requirement. In general, the
                                administrative controls section
                                addresses (1) the requirements
                                associated with administrative controls,
                                (including those for reporting
                                violations of the technical safety
                                requirement); (2) the staffing
                                requirements for facility positions
                                important to safe conduct of the
                                facility; and (3) the commitments to the
                                safety management programs identified in
                                the documented safety analysis as
                                necessary components of the safety basis
                                for the facility.
(7) Use and application        The basic instructions for applying the
 provisions.                    safety restrictions contained in a
                                technical safety requirement. The use
                                and application section includes
                                definitions of terms, operating modes,
                                logical connectors, completion times,
                                and frequency notations.
(8) Design features..........  Design features of the facility that, if
                                altered or modified, would have a
                                significant effect on safe operation.

[[Page 546]]

 
(9) Bases appendix...........  The reasons for the safety limits,
                                operating limits, and associated
                                surveillance requirements in the
                                technical safety requirements. The
                                statements for each limit or requirement
                                shows how the numeric value, the
                                condition, or the surveillance fulfills
                                the purpose derived from the safety
                                documentation. The primary purpose for
                                describing the basis of each limit or
                                requirement is to ensure that any future
                                changes to the limit or requirement is
                                done with full knowledge of the original
                                intent or purpose of the limit or
                                requirement.
------------------------------------------------------------------------

                     H. Unreviewed Safety Questions

    1. The USQ process is an important tool to evaluate whether changes 
affect the safety basis. A contractor must use the USQ process to ensure 
that the safety basis for a DOE nuclear facility is not undermined by 
changes in the facility, the work performed, the associated hazards, or 
other factors that support the adequacy of the safety basis.
    2. The USQ process permits a contractor to make physical and 
procedural changes to a nuclear facility and to conduct tests and 
experiments without prior approval, provided these changes do not cause 
a USQ. The USQ process provides a contractor with the flexibility needed 
to conduct day-to-day operations by requiring only those changes and 
tests with a potential to impact the safety basis (and therefore the 
safety of the nuclear facility) be approved by DOE. This allows DOE to 
focus its review on those changes significant to safety. The USQ process 
helps keep the safety basis current by ensuring appropriate review of 
and response to situations that might adversely affect the safety basis.
    3. DOE Guide 424.X, Implementation Guide for Addressing Unreviewed 
Safety Question (USQ) Requirements, provides DOE's expectations for a 
USQ process. The contractor must obtain DOE approval of its procedure 
used to implement the USQ process.

                    I. Functions and Responsibilities

    1. The DOE Management Official for a DOE nuclear facility (that is, 
the Assistant Secretary, the Assistant Administrator, or the Office 
Director who is primarily responsible for the management of the 
facility) has primary responsibility within DOE for ensuring that the 
safety basis for the facility is adequate and complies with the safety 
basis requirements of Part 830. The DOE Management Official is 
responsible for ensuring the timely and proper (1) review of all safety 
basis documents submitted to DOE and (2) preparation of a safety 
evaluation report concerning the safety basis for a facility.
    2. DOE will maintain a public list on the internet that provides the 
status of the safety basis for each hazard category 1, 2, or 3 DOE 
nuclear facility and, to the extent practicable, provides information on 
how to obtain a copy of the safety basis and related documents for a 
facility.



PART 835_OCCUPATIONAL RADIATION PROTECTION--Table of Contents



                      Subpart A_General Provisions

Sec.
835.1 Scope.
835.2 Definitions.
835.3 General rule.
835.4 Radiological units.

          Subpart B_Management and Administrative Requirements

835.101 Radiation protection programs.
835.102 Internal audits.
835.103 Education, training and skills.
835.104 Written procedures.

         Subpart C_Standards for Internal and External Exposure

835.201 [Reserved]
835.202 Occupational dose limits for general employees.
835.203 Combining internal and external equivalent doses.
835.204 Planned special exposures.
835.205 Determination of compliance for non-uniform exposure of the 
          skin.
835.206 Limits for the embryo/fetus.
835.207 Occupational dose limits for minors.
835.208 Limits for members of the public entering a controlled area.
835.209 Concentrations of radioactive material in air.

Subpart D [Reserved]

              Subpart E_Monitoring of Individuals and Areas

835.401 General requirements.
835.402 Individual monitoring.
835.403 Air monitoring.
835.404 [Reserved]
835.405 Receipt of packages containing radioactive material.

[[Page 547]]

                     Subpart F_Entry Control Program

835.501 Radiological areas.
835.502 High and very high radiation areas.

                     Subpart G_Posting and Labeling

835.601 General requirements.
835.602 Controlled areas.
835.603 Radiological areas and radioactive material areas.
835.604 Exceptions to posting requirements.
835.605 Labeling items and containers.
835.606 Exceptions to labeling requirements.

                            Subpart H_Records

835.701 General provisions.
835.702 Individual monitoring records.
835.703 Other monitoring records.
835.704 Administrative records.

                    Subpart I_Reports to Individuals

835.801 Reports to individuals.

                   Subpart J_Radiation Safety Training

835.901 Radiation safety training.
835.902-835.903 [Reserved]

                      Subpart K_Design and Control

835.1001 Design and control.
835.1002 Facility design and modifications.
835.1003 Workplace controls.

               Subpart L_Radioactive Contamination Control

835.1101 Control of material and equipment.
835.1102 Control of areas.

               Subpart M_Sealed Radioactive Source Control

835.1201 Sealed radioactive source control.
835.1202 Accountable sealed radioactive sources.

                 Subpart N_Emergency Exposure Situations

835.1301 General provisions.
835.1302 Emergency exposure situations.
835.1303 [Reserved]
835.1304 Nuclear accident dosimetry.

Appendix A to Part 835--Derived Air Concentrations (DAC) for Controlling 
          Radiation Exposure to Workers at DOE Facilities
Appendix B to Part 835 [Reserved]
Appendix C to Part 835--Derived Air Concentration (DAC) for Workers From 
          External Exposure During Immersion in a Cloud of Airborne 
          Radioactive Material
Appendix D to Part 835--Surface Contamination Values
Appendix E to Part 835--Values for Establishing Sealed Radioactive 
          Source Accountability and Radioactive Material Posting and 
          Labeling Requirements

    Authority: 42 U.S.C. 2201, 7191; 50 U.S.C. 2410.

    Source: 58 FR 65485, Dec. 14, 1993, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 835.1  Scope.

    (a) General. The rules in this part establish radiation protection 
standards, limits, and program requirements for protecting individuals 
from ionizing radiation resulting from the conduct of DOE activities.
    (b) Exclusion. Except as provided in paragraph (c) of this section, 
the requirements in this part do not apply to:
    (1) Activities that are regulated through a license by the Nuclear 
Regulatory Commission or a State under an Agreement with the Nuclear 
Regulatory commission, including activities certified by the Nuclear 
Regulatory Commission under section 1701 of the Atomic Energy Act;
    (2) Activities conducted under the authority of the Deputy 
Administrator for Naval Reactors, as described in Pub. L. 98-525 and 
106-65;
    (3) Activities conducted under the Nuclear Explosives and Weapons 
Surety Program relating to the prevention of accidental or unauthorized 
nuclear detonations;
    (4) DOE activities conducted outside the United States on territory 
under the jurisdiction of a foreign government to the extent governed by 
occupational radiation protection requirements agreed to between the 
United States and the cognizant government;
    (5) Background radiation, radiation doses received as a patient for 
the purposes of medical diagnosis or therapy, or radiation doses 
received from participation as a subject in medical research programs; 
or
    (6) Radioactive material on or within material, equipment, and real 
property which is approved for release when the radiological conditions 
of the material, equipment, and real property have been

[[Page 548]]

documented to comply with the criteria for release set forth in a DOE 
authorized limit which has been approved by a Secretarial Officer in 
consultation with the Chief Health, Safety and Security Officer.
    (7) Radioactive material transportation not performed by DOE or a 
DOE contractor.
    (c) Occupational doses received as a result of excluded activities 
and radioactive material transportation listed in paragraphs (b)(1) 
through (b)(4) and (b)(7) of this section, shall be included to the 
extent practicable when determining compliance with the occupational 
dose limits at Sec. Sec. 835.202 and 835.207, and with the limits for 
the embryo/fetus at Sec. 835.206. Occupational doses resulting from 
authorized emergency exposures and planned special exposures shall not 
be considered when determining compliance with the dose limits at 
Sec. Sec. 835.202 and 835.207.
    (d) The requirements in subparts F and G of this part do not apply 
to radioactive material transportation by DOE or a DOE contractor 
conducted:
    (1) Under the continuous observation and control of an individual 
who is knowledgeable of and implements required exposure control 
measures, or
    (2) In accordance with Department of Transportation regulations or 
DOE orders that govern such movements.

[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59679, Nov. 4, 1998; 71 
FR 68733, Nov. 28, 2006; 72 FR 31922, June 8, 2007]



Sec. 835.2  Definitions.

    (a) As used in this part:
    Accountable sealed radioactive source means a sealed radioactive 
source having a half-life equal to or greater than 30 days and an 
isotopic activity equal to or greater than the corresponding value 
provided in appendix E of this part.
    Activity Median Aerodynamic Diameter (AMAD) means a particle size in 
an aerosol where fifty percent of the activity in the aerosol is 
associated with particles of aerodynamic diameter greater than the AMAD.
    Airborne radioactive material or airborne radioactivity means 
radioactive material dispersed in the air in the form of dusts, fumes, 
particulates, mists, vapors, or gases.
    Airborne radioactivity area means any area, accessible to 
individuals, where:
    (1) The concentration of airborne radioactivity, above natural 
background, exceeds or is likely to exceed the derived air concentration 
(DAC) values listed in appendix A or appendix C of this part; or
    (2) An individual present in the area without respiratory protection 
could receive an intake exceeding 12 DAC-hours in a week.
    ALARA means ``As Low As is Reasonably Achievable,'' which is the 
approach to radiation protection to manage and control exposures (both 
individual and collective) to the work force and to the general public 
to as low as is reasonable, taking into account social, technical, 
economic, practical, and public policy considerations. As used in this 
part, ALARA is not a dose limit but a process which has the objective of 
attaining doses as far below the applicable limits of this part as is 
reasonably achievable.
    Annual limit on intake (ALI) means the derived limit for the amount 
of radioactive material taken into the body of an adult worker by 
inhalation or ingestion in a year. ALI is the smaller value of intake of 
a given radionuclide in a year by the reference man (ICRP Publication 
23) that would result in a committed effective dose of 5 rems (0.05 
sieverts (Sv)) (1 rem = 0.01 Sv) or a committed equivalent dose of 50 
rems (0.5 Sv) to any individual organ or tissue. ALI values for intake 
by ingestion and inhalation of selected radionuclides are based on 
International Commission on Radiological Protection Publication 68, Dose 
Coefficients for Intakes of Radionuclides by Workers, published July, 
1994 (ISBN 0 08 042651 4). This document is available from Elsevier 
Science Inc., Tarrytown, NY.
    Authorized limit means a limit on the concentration of residual 
radioactive material on the surfaces or within the property that has 
been derived consistent with DOE directives including the as low as is 
reasonably achievable (ALARA) process requirements, given the 
anticipated use of the property and has been authorized by DOE to permit 
the release of the property from DOE radiological control.
    Background means radiation from:

[[Page 549]]

    (1) Naturally occurring radioactive materials which have not been 
technologically enhanced;
    (2) Cosmic sources;
    (3) Global fallout as it exists in the environment (such as from the 
testing of nuclear explosive devices);
    (4) Radon and its progeny in concentrations or levels existing in 
buildings or the environment which have not been elevated as a result of 
current or prior activities; and
    (5) Consumer products containing nominal amounts of radioactive 
material or producing nominal amounts of radiation.
    Bioassay means the determination of kinds, quantities, or 
concentrations, and, in some cases, locations of radioactive material in 
the human body, whether by direct measurement or by analysis and 
evaluation of radioactive materials excreted or removed from the human 
body.
    Calibration means to adjust and/or determine either:
    (1) The response or reading of an instrument relative to a standard 
(e.g., primary, secondary, or tertiary) or to a series of conventionally 
true values; or
    (2) The strength of a radiation source relative to a standard (e.g., 
primary, secondary, or tertiary) or conventionally true value.
    Contamination area means any area, accessible to individuals, where 
removable surface contamination levels exceed or are likely to exceed 
the removable surface contamination values specified in appendix D of 
this part, but do not exceed 100 times those values.
    Controlled area means any area to which access is managed by or for 
DOE to protect individuals from exposure to radiation and/or radioactive 
material.
    Declared pregnant worker means a woman who has voluntarily declared 
to her employer, in writing, her pregnancy for the purpose of being 
subject to the occupational dose limits to the embryo/fetus as provided 
in Sec. 835.206. This declaration may be revoked, in writing, at any 
time by the declared pregnant worker.
    Derived air concentration (DAC) means, for the radionuclides listed 
in appendix A of this part, the airborne concentration that equals the 
ALI divided by the volume of air breathed by an average worker for a 
working year of 2000 hours (assuming a breathing volume of 2400 m\3\). 
For the radionuclides listed in appendix C of this part, the air 
immersion DACs were calculated for a continuous, non-shielded exposure 
via immersion in a semi-infinite cloud of radioactive material. Except 
as noted in the footnotes to appendix A of this part, the values are 
based on dose coefficients from International Commission on Radiological 
Protection Publication 68, Dose Coefficients for Intakes of 
Radionuclides by Workers, published July, 1994 (ISBN 0 08 042651 4) and 
the associated ICRP computer program, The ICRP Database of Dose 
Coefficients: Workers and Members of the Public, (ISBN 0 08 043 8768). 
These materials are available from Elsevier Science Inc., Tarrytown, NY.
    Derived air concentration-hour (DAC-hour) means the product of the 
concentration of radioactive material in air (expressed as a fraction or 
multiple of the DAC for each radionuclide) and the time of exposure to 
that radionuclide, in hours.
    Deterministic effects means effects due to radiation exposure for 
which the severity varies with the dose and for which a threshold 
normally exists (e.g., radiation-induced opacities within the lens of 
the eye).
    DOE means the United States Department of Energy.
    DOE activity means an activity taken for or by DOE in a DOE 
operation or facility that has the potential to result in the 
occupational exposure of an individual to radiation or radioactive 
material. The activity may be, but is not limited to, design, 
construction, operation, or decommissioning. To the extent appropriate, 
the activity may involve a single DOE facility or operation or a 
combination of facilities and operations, possibly including an entire 
site or multiple DOE sites.
    Entrance or access point means any location through which an 
individual could gain access to areas controlled for the purpose of 
radiation protection. This includes entry or exit portals of sufficient 
size to permit human entry, irrespective of their intended use.
    General employee means an individual who is either a DOE or DOE 
contractor

[[Page 550]]

employee; an employee of a subcontractor to a DOE contractor; or an 
individual who performs work for or in conjunction with DOE or utilizes 
DOE facilities.
    High contamination area means any area, accessible to individuals, 
where removable surface contamination levels exceed or are likely to 
exceed 100 times the removable surface contamination values specified in 
appendix D of this part.
    High radiation area means any area, accessible to individuals, in 
which radiation levels could result in an individual receiving an 
equivalent dose to the whole body in excess of 0.1 rems (0.001 Sv) in 1 
hour at 30 centimeters from the radiation source or from any surface 
that the radiation penetrates.
    Individual means any human being.
    Member of the public means an individual who is not a general 
employee. An individual is not a ``member of the public'' during any 
period in which the individual receives an occupational dose.
    Minor means an individual less than 18 years of age.
    Monitoring means the measurement of radiation levels, airborne 
radioactivity concentrations, radioactive contamination levels, 
quantities of radioactive material, or individual doses and the use of 
the results of these measurements to evaluate radiological hazards or 
potential and actual doses resulting from exposures to ionizing 
radiation.
    Occupational dose means an individual's ionizing radiation dose 
(external and internal) as a result of that individual's work 
assignment. Occupational dose does not include doses received as a 
medical patient or doses resulting from background radiation or 
participation as a subject in medical research programs.
    Person means any individual, corporation, partnership, firm, 
association, trust, estate, public or private institution, group, 
Government agency, any State or political subdivision of, or any 
political entity within a State, any foreign government or nation or 
other entity, and any legal successor, representative, agent or agency 
of the foregoing; provided that person does not include DOE or the 
United States Nuclear Regulatory Commission.
    Radiation means ionizing radiation: alpha particles, beta particles, 
gamma rays, X-rays, neutrons, high-speed electrons, high-speed protons, 
and other particles capable of producing ions. Radiation, as used in 
this part, does not include non-ionizing radiation, such as radio waves 
or microwaves, or visible, infrared, or ultraviolet light.
    Radiation area means any area, accessible to individuals, in which 
radiation levels could result in an individual receiving an equivalent 
dose to the whole body in excess of 0.005 rem (0.05 mSv) in 1 hour at 30 
centimeters from the source or from any surface that the radiation 
penetrates.
    Radioactive material area means any area within a controlled area, 
accessible to individuals, in which items or containers of radioactive 
material exist and the total activity of radioactive material exceeds 
the applicable values provided in appendix E of this part.
    Radioactive material transportation means the movement of 
radioactive material by aircraft, rail, vessel, or highway vehicle. 
Radioactive material transportation does not include preparation of 
material or packagings for transportation, storage of material awaiting 
transportation, or application of markings and labels required for 
transportation.
    Radiological area means any area within a controlled area defined in 
this section as a ``radiation area,'' ``high radiation area,'' ``very 
high radiation area,'' ``contamination area,'' ``high contamination 
area,'' or ``airborne radioactivity area.''
    Radiological worker means a general employee whose job assignment 
involves operation of radiation producing devices or working with 
radioactive materials, or who is likely to be routinely occupationally 
exposed above 0.1 rem (0.001 Sv) per year total effective dose.
    Real property means land and anything permanently affixed to the 
land such as buildings, fences and those things attached to the 
buildings, such as light fixtures, plumbing and heating fixtures.

[[Page 551]]

    Real-time air monitoring means measurement of the concentrations or 
quantities of airborne radioactive materials on a continuous basis.
    Respiratory protective device means an apparatus, such as a 
respirator, worn by an individual for the purpose of reducing the 
individual's intake of airborne radioactive materials.
    Sealed radioactive source means a radioactive source manufactured, 
obtained, or retained for the purpose of utilizing the emitted 
radiation. The sealed radioactive source consists of a known or 
estimated quantity of radioactive material contained within a sealed 
capsule, sealed between layer(s) of non-radioactive material, or firmly 
fixed to a non-radioactive surface by electroplating or other means 
intended to prevent leakage or escape of the radioactive material. 
Sealed radioactive sources do not include reactor fuel elements, nuclear 
explosive devices, and radioisotope thermoelectric generators.
    Source leak test means a test to determine if a sealed radioactive 
source is leaking radioactive material.
    Special tritium compound (STC) means any compound, except for 
H2O, that contains tritium, either intentionally (e.g., by 
synthesis) or inadvertently (e.g., by contamination mechanisms).
    Stochastic effects means malignant and hereditary diseases for which 
the probability of an effect occurring, rather than its severity, is 
regarded as a function of dose without a threshold, for radiation 
protection purposes.
    Very high radiation area means any area, accessible to individuals, 
in which radiation levels could result in an individual receiving an 
absorbed dose in excess of 500 rads (5 grays) in one hour at 1 meter 
from a radiation source or from any surface that the radiation 
penetrates.
    Week means a period of seven consecutive days.
    Year means the period of time beginning on or near January 1 and 
ending on or near December 31 of that same year used to determine 
compliance with the provisions of this part. The starting and ending 
date of the year used to determine compliance may be changed, provided 
that the change is made at the beginning of the year and that no day is 
omitted or duplicated in consecutive years.
    (b) As used in this part to describe various aspects of radiation 
dose:
    Absorbed dose (D) means the average energy imparted by ionizing 
radiation to the matter in a volume element per unit mass of irradiated 
material. The absorbed dose is expressed in units of rad (or gray) (1 
rad = 0.01 gray).
    Committed effective dose (E50) means the sum of the 
committed equivalent doses to various tissues or organs in the body 
(HT,50), each multiplied by the appropriate tissue weighting 
factor (wT)--that is, E50 = 
[Sigma]wTHT,50 + 
wRemainderHRemainder,50. Where 
wRemainder is the tissue weighting factor assigned to the 
remainder organs and tissues and HRemainder,50 is the 
committed equivalent dose to the remainder organs and tissues. Committed 
effective dose is expressed in units of rem (or Sv).
    Committed equivalent dose (HT,50) means the equivalent 
dose calculated to be received by a tissue or organ over a 50-year 
period after the intake of a radionuclide into the body. It does not 
include contributions from radiation sources external to the body. 
Committed equivalent dose is expressed in units of rem (or Sv).
    Cumulative total effective dose means the sum of all total effective 
dose values recorded for an individual plus, for occupational exposures 
received before the implementation date of this amendment, the 
cumulative total effective dose equivalent (as defined in the November 
4, 1998 amendment to this rule) values recorded for an individual, where 
available, for each year occupational dose was received, beginning 
January 1, 1989.
    Dose is a general term for absorbed dose, equivalent dose, effective 
dose, committed equivalent dose, committed effective dose, or total 
effective dose as defined in this part.
    Effective dose (E) means the summation of the products of the 
equivalent dose received by specified tissues or organs of the body 
(HT) and the appropriate tissue weighting factor 
(wT)--that is, E = [Sigma]wTHT. It 
includes the dose from radiation sources internal and/or external to the 
body. For purposes of compliance with this part, equivalent dose to the 
whole body may be used as

[[Page 552]]

effective dose for external exposures. The effective dose is expressed 
in units of rem (or Sv).
    Equivalent dose (HT) means the product of average 
absorbed dose (DT,R) in rad (or gray) in a tissue or organ 
(T) and a radiation (R) weighting factor (wR). For external 
dose, the equivalent dose to the whole body is assessed at a depth of 1 
cm in tissue; the equivalent dose to the lens of the eye is assessed at 
a depth of 0.3 cm in tissue, and the equivalent dose to the extremity 
and skin is assessed at a depth of 0.007 cm in tissue. Equivalent dose 
is expressed in units of rem (or Sv).
    External dose or exposure means that portion of the equivalent dose 
received from radiation sources outside the body (i.e., ``external 
sources'').
    Extremity means hands and arms below the elbow or feet and legs 
below the knee.
    Internal dose or exposure means that portion of the equivalent dose 
received from radioactive material taken into the body (i.e., ``internal 
sources'').
    Radiation weighting factor (wR) means the modifying 
factor used to calculate the equivalent dose from the average tissue or 
organ absorbed dose; the absorbed dose (expressed in rad or gray) is 
multiplied by the appropriate radiation weighting factor. The radiation 
weighting factors to be used for determining equivalent dose in rem are 
as follows:

                   Radiation Weighting Factors \1\, wR
------------------------------------------------------------------------
                                                             Radiation
                  Type and energy range                      weighting
                                                              factor
------------------------------------------------------------------------
Photons, electrons and muons, all energies..............               1
Neutrons, energy < 10 keV2, \3\.........................               5
Neutrons, energy 10 keV to 100 keV2, \3\................              10
Neutrons, energy  100 keV to 2 MeV2, \3\.....              20
Neutrons, energy  2 MeV to 20 MeV2, \3\......              10
Neutrons, energy  20 MeV2, \3\...............               5
Protons, other than recoil protons, energy  2               5
 MeV....................................................
Alpha particles, fission fragments, heavy nuclei........             20
------------------------------------------------------------------------
\1\ All values relate to the radiation incident on the body or, for
  internal sources, emitted from the source.
\2\ When spectral data are insufficient to identify the energy of the
  neutrons, a radiation weighting factor of 20 shall be used.
\3\ When spectral data are sufficient to identify the energy of the
  neutrons, the following equation may be used to determine a neutron
  radiation weighting factor value:

  [GRAPHIC] [TIFF OMITTED] TR08JN07.003
  
    Tissue weighting factor (wT) means the fraction of the 
overall health risk, resulting from uniform, whole body irradiation, 
attributable to specific tissue (T). The equivalent dose to tissue, 
(HT), is multiplied by the appropriate tissue weighting 
factor to obtain the effective dose (E) contribution from that tissue. 
The tissue weighting factors are as follows:

         Tissue Weighting Factors for Various Organs and Tissues
------------------------------------------------------------------------
                                                                Tissue
                    Organs or tissues, T                       weighting
                                                              factor, wT
------------------------------------------------------------------------
Gonads......................................................        0.20
Red bone marrow.............................................        0.12
Colon.......................................................        0.12
Lungs.......................................................        0.12
Stomach.....................................................        0.12
Bladder.....................................................        0.05
Breast......................................................        0.05
Liver.......................................................        0.05
Esophagus...................................................        0.05
Thyroid.....................................................        0.05
Skin........................................................        0.01
Bone surfaces...............................................        0.01
Remainder \1\...............................................        0.05

[[Page 553]]

 
Whole body \2\..............................................       1.00
------------------------------------------------------------------------
\1\ ``Remainder'' means the following additional tissues and organs and
  their masses, in grams, following parenthetically: adrenals (14),
  brain (1400), extrathoracic airways (15), small intestine (640),
  kidneys (310), muscle (28,000), pancreas (100), spleen (180), thymus
  (20), and uterus (80). The equivalent dose to the remainder tissues
  (Hremainder), is normally calculated as the mass-weighted mean dose to
  the preceeding ten organs and tissues. In those cases in which the
  most highly irradiated remainder tissue or organ receives the highest
  equivalent dose of all the organs, a weighting factor of 0.025 (half
  of remainder) is applied to that tissue or organ and 0.025 (half of
  remainder) to the mass-weighted equivalent dose in the rest of the
  remainder tissues and organs to give the remainder equivalent dose.
\2\ For the case of uniform external irradiation of the whole body, a
  tissue weighting factor (wT) equal to 1 may be used in determination
  of the effective dose.

    Total effective dose (TED) means the sum of the effective dose (for 
external exposures) and the committed effective dose.
    Whole body means, for the purposes of external exposure, head, trunk 
(including male gonads), arms above and including the elbow, or legs 
above and including the knee.
    (c) Terms defined in the Atomic Energy Act of 1954 or in 10 CFR part 
820 and not defined in this part are used consistent with their meanings 
given in the Atomic Energy Act of 1954 or in 10 CFR part 820.

[72 FR 31922, June 8, 2007, as amended at 74 FR 18116, Apr. 21, 2009]



Sec. 835.3  General rule.

    (a) No person or DOE personnel shall take or cause to be taken any 
action inconsistent with the requirements of:
    (1) This part; or
    (2) Any program, plan, schedule, or other process established by 
this part.
    (b) With respect to a particular DOE activity, contractor management 
shall be responsible for compliance with the requirements of this part.
    (c) Where there is no contractor for a DOE activity, DOE shall 
ensure implementation of and compliance with the requirements of this 
part.
    (d) Nothing in this part shall be construed as limiting actions that 
may be necessary to protect health and safety.
    (e) For those activities that are required by Sec. Sec. 835.102, 
835.901(e), 835.1202 (a), and 835.1202(b), the time interval to conduct 
these activities may be extended by a period not to exceed 30 days to 
accommodate scheduling needs.

[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59682, Nov. 4, 1998]



Sec. 835.4  Radiological units.

    Unless otherwise specified, the quantities used in the records 
required by this part shall be clearly indicated in special units of 
curie, rad, roentgen, or rem, including multiples and subdivisions of 
these units, or other conventional units, such as, dpm, dpm/100 cm\2\ or 
mass units. The SI units, becquerel (Bq), gray (Gy), and sievert (Sv), 
may be provided parenthetically for reference with scientific standards.

[72 FR 31925, June 8, 2007]



          Subpart B_Management and Administrative Requirements



Sec. 835.101  Radiation protection programs.

    (a) A DOE activity shall be conducted in compliance with a 
documented radiation protection program (RPP) as approved by the DOE.
    (b) The DOE may direct or make modifications to a RPP.
    (c) The content of each RPP shall be commensurate with the nature of 
the activities performed and shall include formal plans and measures for 
applying the as low as reasonably achievable (ALARA) process to 
occupational exposure.
    (d) The RPP shall specify the existing and/or anticipated 
operational tasks that are intended to be within the scope of the RPP. 
Except as provided in Sec. 835.101(h), any task outside the scope of a 
RPP shall not be initiated until an update of the RPP is approved by 
DOE.
    (e) The content of the RPP shall address, but shall not necessarily 
be limited to, each requirement in this part.
    (f) The RPP shall include plans, schedules, and other measures for 
achieving compliance with regulations of this part. Unless otherwise 
specified in this part, compliance with the amendments to this part 
published on June 8, 2007 shall be achieved no later than July 9, 2010.
    (g) An update of the RPP shall be submitted to DOE:

[[Page 554]]

    (1) Whenever a change or an addition to the RPP is made;
    (2) Prior to the initiation of a task not within the scope of the 
RPP; or
    (3) Within 180 days of the effective date of any modifications to 
this part.
    (h) Changes, additions, or updates to the RPP may become effective 
without prior Department approval only if the changes do not decrease 
the effectiveness of the RPP and the RPP, as changed, continues to meet 
the requirements of this part. Proposed changes that decrease the 
effectiveness of the RPP shall not be implemented without submittal to 
and approval by the Department.
    (i) An initial RPP or an update shall be considered approved 180 
days after its submission unless rejected by DOE at an earlier date.

[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59682, Nov. 4, 1998; 72 
FR 31925, June 8, 2007]



Sec. 835.102  Internal audits.

    Internal audits of the radiation protection program, including 
examination of program content and implementation, shall be conducted 
through a process that ensures that all functional elements are reviewed 
no less frequently than every 36 months.

[63 FR 59682, Nov. 4, 1998]



Sec. 835.103  Education, training and skills.

    Individuals responsible for developing and implementing measures 
necessary for ensuring compliance with the requirements of this part 
shall have the appropriate education, training, and skills to discharge 
these responsibilities.

[63 FR 59682, Nov. 4, 1998]



Sec. 835.104  Written procedures.

    Written procedures shall be developed and implemented as necessary 
to ensure compliance with this part, commensurate with the radiological 
hazards created by the activity and consistent with the education, 
training, and skills of the individuals exposed to those hazards.

[63 FR 59682, Nov. 4, 1998]



         Subpart C_Standards for Internal and External Exposure



Sec. 835.201  [Reserved]



Sec. 835.202  Occupational dose limits for general employees.

    (a) Except for planned special exposures conducted consistent with 
Sec. 835.204 and emergency exposures authorized in accordance with 
Sec. 835.1302, the occupational dose received by general employees 
shall be controlled such that the following limits are not exceeded in a 
year:
    (1) A total effective dose of 5 rems (0.05 Sv);
    (2) The sum of the equivalent dose to the whole body for external 
exposures and the committed equivalent dose to any organ or tissue other 
than the skin or the lens of the eye of 50 rems (0.5 Sv);
    (3) An equivalent dose to the lens of the eye of 15 rems (0.15 Sv); 
and
    (4) The sum of the equivalent dose to the skin or to any extremity 
for external exposures and the committed equivalent dose to the skin or 
to any extremity of 50 rems (0.5 Sv).
    (b) All occupational doses received during the current year, except 
doses resulting from planned special exposures conducted in compliance 
with Sec. 835.204 and emergency exposures authorized in accordance with 
Sec. 835.1302, shall be included when demonstrating compliance with 
Sec. Sec. 835.202(a) and 835.207.
    (c) Doses from background, therapeutic and diagnostic medical 
radiation, and participation as a subject in medical research programs 
shall not be included in dose records or in the assessment of compliance 
with the occupational dose limits.

[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59682, Nov. 4, 1998; 72 
FR 31926, June 8, 2007]



Sec. 835.203  Combining internal and external equivalent doses.

    (a) The total effective dose during a year shall be determined by 
summing the effective dose from external exposures and the committed 
effective dose from intakes during the year.
    (b) Determinations of the effective dose shall be made using the 
radiation

[[Page 555]]

and tissue weighting factor values provided in Sec. 835.2.

[72 FR 31926, June 8, 2007]



Sec. 835.204  Planned special exposures.

    (a) A planned special exposure may be authorized for a radiological 
worker to receive doses in addition to and accounted for separately from 
the doses received under the limits specified in Sec. 835.202(a), 
provided that each of the following conditions is satisfied:
    (1) The planned special exposure is considered only in an 
exceptional situation when alternatives that might prevent a 
radiological worker from exceeding the limits in Sec. 835.202(a) are 
unavailable or impractical;
    (2) The contractor management (and employer, if the employer is not 
the contractor) specifically requests the planned special exposure, in 
writing; and
    (3) Joint written approval is received from the appropriate DOE 
Headquarters program office and the Secretarial Officer responsible for 
environment, safety and health matters.
    (b) Prior to requesting an individual to participate in an 
authorized planned special exposure, the individual's dose from all 
previous planned special exposures and all doses in excess of the 
occupational dose limits shall be determined.
    (c) An individual shall not receive a planned special exposure that, 
in addition to the doses determined in Sec. 835.204(b), would result in 
a dose exceeding the following:
    (1) In a year, the numerical values of the dose limits established 
at Sec. 835.202(a); and
    (2) Over the individual's lifetime, five times the numerical values 
of the dose limits established at Sec. 835.202(a).
    (d) Prior to a planned special exposure, written consent shall be 
obtained from each individual involved. Each such written consent shall 
include:
    (1) The purpose of the planned operations and procedures to be used;
    (2) The estimated doses and associated potential risks and specific 
radiological conditions and other hazards which might be involved in 
performing the task; and
    (3) Instructions on the measures to be taken to keep the dose ALARA 
considering other risks that may be present.
    (e) Records of the conduct of a planned special exposure shall be 
maintained and a written report submitted within 30 days after the 
planned special exposure to the approving organizations identified in 
Sec. 835.204(a)(3).
    (f) The dose from planned special exposures is not to be considered 
in controlling future occupational dose of the individual under Sec. 
835.202(a), but is to be included in records and reports required under 
this part.

[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59682, Nov. 4, 1998]



Sec. 835.205  Determination of compliance for non-uniform exposure of the skin.

    (a) Non-uniform exposures of the skin from X-rays, beta radiation, 
and/or radioactive material on the skin are to be assessed as specified 
in this section.
    (b) For purposes of demonstrating compliance with Sec. 
835.202(a)(4), assessments shall be conducted as follows:
    (1) Area of skin irradiated is 100 cm2 or more. The non-uniform 
equivalent dose received during the year shall be averaged over the 100 
cm\2\ of the skin receiving the maximum dose, added to any uniform 
equivalent dose also received by the skin, and recorded as the 
equivalent dose to any extremity or skin for the year.
    (2) Area of skin irradiated is 10 cm2 or more, but is less than 100 
cm2. The non-uniform equivalent dose (H) to the irradiated area received 
during the year shall be added to any uniform equivalent dose also 
received by the skin and recorded as the equivalent dose to any 
extremity or skin for the year. H is the equivalent dose averaged over 
the 1 cm\2\ of skin receiving the maximum absorbed dose, D, reduced by 
the fraction f, which is the irradiated area in cm\2\ divided by 100 
cm\2\ (i.e., H = fD). In no case shall a value of f less than 0.1 be 
used.
    (3) Area of skin irradiated is less than 10 cm2. The non-uniform 
equivalent dose shall be averaged over the 1 cm\2\ of skin receiving the 
maximum dose. This equivalent dose shall:
    (i) Be recorded in the individual's occupational exposure history as 
a special entry; and

[[Page 556]]

    (ii) Not be added to any other equivalent dose to any extremity or 
skin for the year.

[58 FR 65485, Dec. 14, 1993, as amended at 72 FR 31926, June 8, 2007]



Sec. 835.206  Limits for the embryo/fetus.

    (a) The equivalent dose limit for the embryo/fetus from the period 
of conception to birth, as a result of occupational exposure of a 
declared pregnant worker, is 0.5 rem (0.005 Sv).
    (b) Substantial variation above a uniform exposure rate that would 
satisfy the limits provided in Sec. 835.206(a) shall be avoided.
    (c) If the equivalent dose to the embryo/fetus is determined to have 
already exceeded 0.5 rem (0.005 Sv) by the time a worker declares her 
pregnancy, the declared pregnant worker shall not be assigned to tasks 
where additional occupational exposure is likely during the remaining 
gestation period.

[58 FR 65485, Dec. 14, 1993, as amended at 72 FR 31926, June 8, 2007]



Sec. 835.207  Occupational dose limits for minors.

    The dose limits for minors occupationally exposed to radiation and/
or radioactive materials at a DOE activity are 0.1 rem (0.001 Sv) total 
effective dose in a year and 10 percent of the occupational dose limits 
specified at Sec. 835.202(a)(3) and (a)(4).

[72 FR 31926, June 8, 2007]



Sec. 835.208  Limits for members of the public entering a controlled area.

    The total effective dose limit for members of the public exposed to 
radiation and/or radioactive material during access to a controlled area 
is 0.1 rem (0.001 Sv) in a year.

[72 FR 31926, June 8, 2007]



Sec. 835.209  Concentrations of radioactive material in air.

    (a) The derived air concentration (DAC) values given in appendices A 
and C of this part shall be used in the control of occupational 
exposures to airborne radioactive material.
    (b) The estimation of internal dose shall be based on bioassay data 
rather than air concentration values unless bioassay data are:
    (1) Unavailable;
    (2) Inadequate; or
    (3) Internal dose estimates based on air concentration values are 
demonstrated to be as or more accurate.

[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59682, Nov. 4, 1998]

Subpart D [Reserved]



              Subpart E_Monitoring of Individuals and Areas



Sec. 835.401  General requirements.

    (a) Monitoring of individuals and areas shall be performed to:
    (1) Demonstrate compliance with the regulations in this part;
    (2) Document radiological conditions;
    (3) Detect changes in radiological conditions;
    (4) Detect the gradual buildup of radioactive material;
    (5) Verify the effectiveness of engineered and administrative 
controls in containing radioactive material and reducing radiation 
exposure; and
    (6) Identify and control potential sources of individual exposure to 
radiation and/or radioactive material.
    (b) Instruments and equipment used for monitoring shall be:
    (1) Periodically maintained and calibrated on an established 
frequency;
    (2) Appropriate for the type(s), levels, and energies of the 
radiation(s) encountered;
    (3) Appropriate for existing environmental conditions; and
    (4) Routinely tested for operability.

[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59682, Nov. 4, 1998; 72 
FR 31926, June 8, 2007]



Sec. 835.402  Individual monitoring.

    (a) For the purpose of monitoring individual exposures to external 
radiation, personnel dosimeters shall be provided to and used by:
    (1) Radiological workers who, under typical conditions, are likely 
to receive one or more of the following:
    (i) An effective dose of 0.1 rem (0.001 Sv) or more in a year;
    (ii) An equivalent dose to the skin or to any extremity of 5 rems 
(0.05 Sv) or more in a year;

[[Page 557]]

    (iii) An equivalent dose to the lens of the eye of 1.5 rems (0.015 
Sv) or more in a year;
    (2) Declared pregnant workers who are likely to receive from 
external sources an equivalent dose to the embryo/fetus in excess of 10 
percent of the applicable limit at Sec. 835.206(a);
    (3) Occupationally exposed minors likely to receive a dose in excess 
of 50 percent of the applicable limits at Sec. 835.207 in a year from 
external sources;
    (4) Members of the public entering a controlled area likely to 
receive a dose in excess of 50 percent of the limit at Sec. 835.208 in 
a year from external sources; and
    (5) Individuals entering a high or very high radiation area.
    (b) External dose monitoring programs implemented to demonstrate 
compliance with Sec. 835.402(a) shall be adequate to demonstrate 
compliance with the dose limits established in subpart C of this part 
and shall be:
    (1) Accredited, or excepted from accreditation, in accordance with 
the DOE Laboratory Accreditation Program for Personnel Dosimetry; or
    (2) Determined by the Secretarial Officer responsible for 
environment, safety and health matters to have performance substantially 
equivalent to that of programs accredited under the DOE Laboratory 
Accreditation Program for Personnel Dosimetry.
    (c) For the purpose of monitoring individual exposures to internal 
radiation, internal dosimetry programs (including routine bioassay 
programs) shall be conducted for:
    (1) Radiological workers who, under typical conditions, are likely 
to receive a committed effective dose of 0.1 rem (0.001 Sv) or more from 
all occupational radionuclide intakes in a year;
    (2) Declared pregnant workers likely to receive an intake or intakes 
resulting in an equivalent dose to the embryo/fetus in excess of 10 
percent of the limit stated at Sec. 835.206(a);
    (3) Occupationally exposed minors who are likely to receive a dose 
in excess of 50 percent of the applicable limit stated at Sec. 835.207 
from all radionuclide intakes in a year; or
    (4) Members of the public entering a controlled area likely to 
receive a dose in excess of 50 percent of the limit stated at Sec. 
835.208 from all radionuclide intakes in a year.
    (d) Internal dose monitoring programs implemented to demonstrate 
compliance with Sec. 835.402(c) shall be adequate to demonstrate 
compliance with the dose limits established in subpart C of this part 
and shall be:
    (1) Accredited, or excepted from accreditation, in accordance with 
the DOE Laboratory Accreditation Program for Radiobioassay; or,
    (2) Determined by the Secretarial Officer responsible for 
environment, safety and health matters to have performance substantially 
equivalent to that of programs accredited under the DOE Laboratory 
Accreditation Program for Radiobioassy.

[63 FR 59683, Nov. 4, 1998, as amended at 72 FR 31926, June 8, 2007]



Sec. 835.403  Air monitoring.

    (a) Monitoring of airborne radioactivity shall be performed:
    (1) Where an individual is likely to receive an exposure of 40 or 
more DAC-hours in a year; or
    (2) As necessary to characterize the airborne radioactivity hazard 
where respiratory protective devices for protection against airborne 
radionuclides have been prescribed.
    (b) Real-time air monitoring shall be performed as necessary to 
detect and provide warning of airborne radioactivity concentrations that 
warrant immediate action to terminate inhalation of airborne radioactive 
material.

[63 FR 59683, Nov. 4, 1998]



Sec. 835.404  [Reserved]



Sec. 835.405  Receipt of packages containing radioactive material.

    (a) If packages containing quantities of radioactive material in 
excess of a Type A quantity (as defined at 10 CFR 71.4) are expected to 
be received from radioactive material transportation, arrangements shall 
be made to either:
    (1) Take possession of the package when the carrier offers it for 
delivery; or
    (2) Receive notification as soon as practicable after arrival of the 
package at the carrier's terminal and to take

[[Page 558]]

possession of the package expeditiously after receiving such 
notification.
    (b) Upon receipt from radioactive material transportation, external 
surfaces of packages known to contain radioactive material shall be 
monitored if the package:
    (1) Is labeled with a Radioactive White I, Yellow II, or Yellow III 
label (as specified at 49 CFR 172.403 and 172.436-440); or
    (2) Has been transported as low specific activity material (as 
defined at 10 CFR 71.4) on an exclusive use vehicle (as defined at 10 
CFR 71.4); or
    (3) Has evidence of degradation, such as packages that are crushed, 
wet, or damaged.
    (c) The monitoring required by paragraph (b) of this section shall 
include:
    (1) Measurements of removable contamination levels, unless the 
package contains only special form (as defined at 10 CFR 71.4) or 
gaseous radioactive material; and
    (2) Measurements of the radiation levels, if the package contains a 
Type B quantity (as defined at 10 CFR 71.4) of radioactive material.
    (d) The monitoring required by paragraph (b) of this section shall 
be completed as soon as practicable following receipt of the package, 
but not later than 8 hours after the beginning of the working day 
following receipt of the package.
    (e) Monitoring pursuant to Sec. 835.405(b) is not required for 
packages transported on a DOE site which have remained under the 
continuous observation and control of a DOE employee or DOE contractor 
employee who is knowledgeable of and implements required exposure 
control measures.

[63 FR 59683, Nov. 4, 1998, as amended at 72 FR 31926, June 8, 2007]



                     Subpart F_Entry Control Program



Sec. 835.501  Radiological areas.

    (a) Personnel entry control shall be maintained for each 
radiological area.
    (b) The degree of control shall be commensurate with existing and 
potential radiological hazards within the area.
    (c) One or more of the following methods shall be used to ensure 
control:
    (1) Signs and barricades;
    (2) Control devices on entrances;
    (3) Conspicuous visual and/or audible alarms;
    (4) Locked entrance ways; or
    (5) Administrative controls.
    (d) Written authorizations shall be required to control entry into 
and perform work within radiological areas. These authorizations shall 
specify radiation protection measures commensurate with the existing and 
potential hazards.
    (e) No control(s) shall be installed at any radiological area exit 
that would prevent rapid evacuation of personnel under emergency 
conditions.

[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59684, Nov. 4, 1998]



Sec. 835.502  High and very high radiation areas.

    (a) The following measures shall be implemented for each entry into 
a high radiation area:
    (1) The area shall be monitored as necessary during access to 
determine the exposure rates to which the individuals are exposed; and
    (2) Each individual shall be monitored by a supplemental dosimetry 
device or other means capable of providing an immediate estimate of the 
individual's integrated equivalent dose to the whole body during the 
entry.
    (b) Physical controls. One or more of the following features shall 
be used for each entrance or access point to a high radiation area where 
radiation levels exist such that an individual could exceed an 
equivalent dose to the whole body of 1 rem (0.01 sievert) in any one 
hour at 30 centimeters from the source or from any surface that the 
radiation penetrates:
    (1) A control device that prevents entry to the area when high 
radiation levels exist or upon entry causes the radiation level to be 
reduced below that level defining a high radiation area;
    (2) A device that functions automatically to prevent use or 
operation of the radiation source or field while individuals are in the 
area;
    (3) A control device that energizes a conspicuous visible or audible 
alarm signal so that the individual entering

[[Page 559]]

the high radiation area and the supervisor of the activity are made 
aware of the entry;
    (4) Entryways that are locked. During periods when access to the 
area is required, positive control over each entry is maintained;
    (5) Continuous direct or electronic surveillance that is capable of 
preventing unauthorized entry;
    (6) A control device that will automatically generate audible and 
visual alarm signals to alert personnel in the area before use or 
operation of the radiation source and in sufficient time to permit 
evacuation of the area or activation of a secondary control device that 
will prevent use or operation of the source.
    (c) Very high radiation areas. In addition to the above 
requirements, additional measures shall be implemented to ensure 
individuals are not able to gain unauthorized or inadvertent access to 
very high radiation areas.
    (d) No control(s) shall be established in a high or very high 
radiation area that would prevent rapid evacuation of personnel.

[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59684, Nov. 4, 1998; 72 
FR 31926, June 8, 2007]



                     Subpart G_Posting and Labeling



Sec. 835.601  General requirements.

    (a) Except as otherwise provided in this subpart, postings and 
labels required by this subpart shall include the standard radiation 
warning trefoil in black or magenta imposed upon a yellow background.
    (b) Signs required by this subpart shall be clearly and 
conspicuously posted and may include radiological protection 
instructions.
    (c) The posting and labeling requirements in this subpart may be 
modified to reflect the special considerations of DOE activities 
conducted at private residences or businesses. Such modifications shall 
provide the same level of protection to individuals as the existing 
provisions in this subpart.

[63 FR 59684, Nov. 4, 1998]



Sec. 835.602  Controlled areas.

    (a) Each access point to a controlled area (as defined at Sec. 
835.2) shall be posted whenever radiological areas or radioactive 
material areas exist in the area. Individuals who enter only controlled 
areas without entering radiological areas or radioactive material areas 
are not expected to receive a total effective dose of more than 0.1 rem 
(0.001 sievert) in a year.
    (b) Signs used for this purpose may be selected by the contractor to 
avoid conflict with local security requirements.

[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59684, Nov. 4, 1998; 72 
FR 31926, June 8, 2007]



Sec. 835.603  Radiological areas and radioactive material areas.

    Each access point to radiological areas and radioactive material 
areas (as defined at Sec. 835.2) shall be posted with conspicuous signs 
bearing the wording provided in this section.
    (a) Radiation area. The words ``Caution, Radiation Area'' shall be 
posted at each radiation area.
    (b) High radiation area. The words ``Caution, High Radiation Area'' 
or ``Danger, High Radiation Area'' shall be posted at each high 
radiation area.
    (c) Very high radiation area. The words ``Grave Danger, Very High 
Radiation Area'' shall be posted at each very high radiation area.
    (d) Airborne radioactivity area. The words ``Caution, Airborne 
Radioactivity Area'' or ``Danger, Airborne Radioactivity Area'' shall be 
posted at each airborne radioactivity area.
    (e) Contamination area. The words ``Caution, Contamination Area'' 
shall be posted at each contamination area.
    (f) High contamination area. The words ``Caution, High Contamination 
Area'' or ``Danger, High Contamination Area'' shall be posted at each 
high contamination area.
    (g) Radioactive material area. The words ``Caution, Radioactive 
Material(s)'' shall be posted at each radioactive material area.

[63 FR 59684, Nov. 4, 1998]

[[Page 560]]



Sec. 835.604  Exceptions to posting requirements.

    (a) Areas may be excepted from the posting requirements of Sec. 
835.603 for periods of less than 8 continuous hours when placed under 
continuous observation and control of an individual knowledgeable of, 
and empowered to implement, required access and exposure control 
measures.
    (b) Areas may be excepted from the radioactive material area posting 
requirements of Sec. 835.603(g) when:
    (1) Posted in accordance with Sec. Sec. 835.603(a) through (f); or
    (2) Each item or container of radioactive material is labeled in 
accordance with this subpart such that individuals entering the area are 
made aware of the hazard; or
    (3) The radioactive material of concern consists solely of 
structures or installed components which have been activated (i.e., such 
as by being exposed to neutron radiation or particles produced by an 
accelerator).
    (c) Areas containing only packages received from radioactive 
material transportation labeled and in non-degraded condition need not 
be posted in accordance with Sec. 835.603 until the packages are 
monitored in accordance with Sec. 835.405.

[63 FR 59684, Nov. 4, 1998]



Sec. 835.605  Labeling items and containers.

    Except as provided at Sec. 835.606, each item or container of 
radioactive material shall bear a durable, clearly visible label bearing 
the standard radiation warning trefoil and the words ``Caution, 
Radioactive Material'' or ``Danger, Radioactive Material.'' The label 
shall also provide sufficient information to permit individuals 
handling, using, or working in the vicinity of the items or containers 
to take precautions to avoid or control exposures.

[63 FR 59684, Nov. 4, 1998]



Sec. 835.606  Exceptions to labeling requirements.

    (a) Items and containers may be excepted from the radioactive 
material labeling requirements of Sec. 835.605 when:
    (1) Used, handled, or stored in areas posted and controlled in 
accordance with this subpart and sufficient information is provided to 
permit individuals to take precautions to avoid or control exposures; or
    (2) The quantity of radioactive material is less than one tenth of 
the values specified in appendix E of this part and less than 0.1 Ci; or
    (3) Packaged, labeled, and marked in accordance with the regulations 
of the Department of Transportation or DOE Orders governing radioactive 
material transportation; or
    (4) Inaccessible, or accessible only to individuals authorized to 
handle or use them, or to work in the vicinity; or
    (5) Installed in manufacturing, process, or other equipment, such as 
reactor components, piping, and tanks; or
    (6) The radioactive material consists solely of nuclear weapons or 
their components.
    (b) Radioactive material labels applied to sealed radioactive 
sources may be excepted from the color specifications of Sec. 
835.601(a).

[63 FR 59684, Nov. 4, 1998, as amended at 72 FR 31927, June 8, 2007]



                            Subpart H_Records



Sec. 835.701  General provisions.

    (a) Records shall be maintained to document compliance with this 
part and with radiation protection programs required by Sec. 835.101.
    (b) Unless otherwise specified in this subpart, records shall be 
retained until final disposition is authorized by DOE.



Sec. 835.702  Individual monitoring records.

    (a) Except as authorized by Sec. 835.702(b), records shall be 
maintained to document doses received by all individuals for whom 
monitoring was conducted and to document doses received during planned 
special exposures, unplanned doses exceeding the monitoring thresholds 
of Sec. 835.402, and authorized emergency exposures.
    (b) Recording of the non-uniform equivalent dose to the skin is not 
required if the dose is less than 2 percent of the limit specified for 
the skin at Sec. 835.202(a)(4). Recording of internal dose (committed 
effective dose or committed equivalent dose) is not required for any 
monitoring result estimated to

[[Page 561]]

correspond to an individual receiving less than 0.01 rem (0.1 mSv) 
committed effective dose. The bioassay or air monitoring result used to 
make the estimate shall be maintained in accordance with Sec. 
835.703(b) and the unrecorded internal dose estimated for any individual 
in a year shall not exceed the applicable monitoring threshold at Sec. 
835.402(c).
    (c) The records required by this section shall:
    (1) Be sufficient to evaluate compliance with subpart C of this 
part;
    (2) Be sufficient to provide dose information necessary to complete 
reports required by subpart I of this part;
    (3) Include the results of monitoring used to assess the following 
quantities for external dose received during the year:
    (i) The effective dose from external sources of radiation 
(equivalent dose to the whole body may be used as effective dose for 
external exposure);
    (ii) The equivalent dose to the lens of the eye;
    (iii) The equivalent dose to the skin; and
    (iv) The equivalent dose to the extremities.
    (4) Include the following information for internal dose resulting 
from intakes received during the year:
    (i) Committed effective dose;
    (ii) Committed equivalent dose to any organ or tissue of concern; 
and
    (iii) Identity of radionuclides.
    (5) Include the following quantities for the summation of the 
external and internal dose:
    (i) Total effective dose in a year;
    (ii) For any organ or tissue assigned an internal dose during the 
year, the sum of the equivalent dose to the whole body from external 
exposures and the committed equivalent dose to that organ or tissue; and
    (iii) Cumulative total effective dose.
    (6) Include the equivalent dose to the embryo/fetus of a declared 
pregnant worker.
    (d) Documentation of all occupational doses received during the 
current year, except for doses resulting from planned special exposures 
conducted in compliance with Sec. 835.204 and emergency exposures 
authorized in accordance with Sec. 835.1302(d), shall be obtained to 
demonstrate compliance with Sec. 835.202(a). If complete records 
documenting previous occupational dose during the year cannot be 
obtained, a written estimate signed by the individual may be accepted to 
demonstrate compliance.
    (e) For radiological workers whose occupational dose is monitored in 
accordance with Sec. 835.402, reasonable efforts shall be made to 
obtain complete records of prior years occupational internal and 
external doses.
    (f) The records specified in this section that are identified with a 
specific individual shall be readily available to that individual.
    (g) Data necessary to allow future verification or reassessment of 
the recorded doses shall be recorded.
    (h) All records required by this section shall be transferred to the 
DOE upon cessation of activities at the site that could cause exposure 
to individuals.

[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59685, Nov. 4, 1998; 72 
FR 31927, June 8, 2007]



Sec. 835.703  Other monitoring records.

    The following information shall be documented and maintained:
    (a) Results of monitoring for radiation and radioactive material as 
required by subparts E and L of this part, except for monitoring 
required by Sec. 835.1102(d);
    (b) Results of monitoring used to determine individual occupational 
dose from external and internal sources;
    (c) Results of monitoring for the release and control of material 
and equipment as required by Sec. 835.1101; and
    (d) Results of maintenance and calibration performed on instruments 
and equipment as required by Sec. 835.401(b).

[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59685, Nov. 4, 1998]



Sec. 835.704  Administrative records.

    (a) Training records shall be maintained, as necessary, to 
demonstrate compliance with Sec. Sec. 835.901.
    (b) Actions taken to maintain occupational exposures as low as 
reasonably achievable, including the actions required for this purpose 
by Sec. 835.101, as

[[Page 562]]

well as facility design and control actions required by Sec. Sec. 
835.1001, 835.1002, and 835.1003, shall be documented.
    (c) Records shall be maintained to document the results of internal 
audits and other reviews of program content and implementation.
    (d) Written declarations of pregnancy, including the estimated date 
of conception, and revocations of declarations of pregnancy shall be 
maintained.
    (e) Changes in equipment, techniques, and procedures used for 
monitoring shall be documented.
    (f) Records shall be maintained as necessary to demonstrate 
compliance with the requirements of Sec. Sec. 835.1201 and 835.1202 for 
sealed radioactive source control, inventory, and source leak tests.

[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59685, Nov. 4, 1998]



                    Subpart I_Reports to Individuals



Sec. 835.801  Reports to individuals.

    (a) Radiation exposure data for individuals monitored in accordance 
with Sec. 835.402 shall be reported as specified in this section. The 
information shall include the data required under Sec. 835.702(c). Each 
notification and report shall be in writing and include: the DOE site or 
facility name, the name of the individual, and the individual's social 
security number, employee number, or other unique identification number.
    (b) Upon the request from an individual terminating employment, 
records of exposure shall be provided to that individual as soon as the 
data are available, but not later than 90 days after termination. A 
written estimate of the radiation dose received by that employee based 
on available information shall be provided at the time of termination, 
if requested.
    (c) Each DOE- or DOE-contractor-operated site or facility shall, on 
an annual basis, provide a radiation dose report to each individual 
monitored during the year at that site or facility in accordance with 
Sec. 835.402.
    (d) Detailed information concerning any individual's exposure shall 
be made available to the individual upon request of that individual, 
consistent with the provisions of the Privacy Act (5 U.S.C. 552a).
    (e) When a DOE contractor is required to report to the Department, 
pursuant to Departmental requirements for occurrence reporting and 
processing, any exposure of an individual to radiation and/or 
radioactive material, or planned special exposure in accordance with 
Sec. 835.204(e), the contractor shall also provide that individual with 
a report on his or her exposure data included therein. Such report shall 
be transmitted at a time not later than the transmittal to the 
Department.

[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59685, Nov. 4, 1998]



                   Subpart J_Radiation Safety Training



Sec. 835.901  Radiation safety training.

    (a) Each individual shall complete radiation safety training on the 
topics established at Sec. 835.901(c) commensurate with the hazards in 
the area and the required controls:
    (1) Before being permitted unescorted access to controlled areas; 
and
    (2) Before receiving occupational dose during access to controlled 
areas at a DOE site or facility.
    (b) Each individual shall demonstrate knowledge of the radiation 
safety training topics established at Sec. 835.901(c), commensurate 
with the hazards in the area and required controls, by successful 
completion of an examination and performance demonstrations:
    (1) Before being permitted unescorted access to radiological areas; 
and
    (2) Before performing unescorted assignments as a radiological 
worker.
    (c) Radiation safety training shall include the following topics, to 
the extent appropriate to each individual's prior training, work 
assignments, and degree of exposure to potential radiological hazards:
    (1) Risks of exposure to radiation and radioactive materials, 
including prenatal radiation exposure;
    (2) Basic radiological fundamentals and radiation protection 
concepts;

[[Page 563]]

    (3) Physical design features, administrative controls, limits, 
policies, procedures, alarms, and other measures implemented at the 
facility to manage doses and maintain doses ALARA, including both 
routine and emergency actions;
    (4) Individual rights and responsibilities as related to 
implementation of the facility radiation protection program;
    (5) Individual responsibilities for implementing ALARA measures 
required by Sec. 835.101; and
    (6) Individual exposure reports that may be requested in accordance 
with Sec. 835.801.
    (d) When an escort is used in lieu of training in accordance with 
paragraph (a) or (b) of this section, the escort shall:
    (1) Have completed radiation safety training, examinations, and 
performance demonstrations required for entry to the area and 
performance of the work; and
    (2) Ensure that all escorted individuals comply with the documented 
radiation protection program.
    (e) Radiation safety training shall be provided to individuals when 
there is a significant change to radiation protection policies and 
procedures that may affect the individual and at intervals not to exceed 
24 months. Such training provided for individuals subject to the 
requirements of Sec. 835.901(b)(1) and (b)(2) shall include successful 
completion of an examination.

[63 FR 59685, Nov. 4, 1998]



Sec. Sec. 835.902-835.903  [Reserved]



                      Subpart K_Design and Control



Sec. 835.1001  Design and control.

    (a) Measures shall be taken to maintain radiation exposure in 
controlled areas ALARA through engineered and administrative controls. 
The primary methods used shall be physical design features (e.g., 
confinement, ventilation, remote handling, and shielding). 
Administrative controls shall be employed only as supplemental methods 
to control radiation exposure.
    (b) For specific activities where use of engineered controls is 
demonstrated to be impractical, administrative controls shall be used to 
maintain radiation exposures ALARA.

[63 FR 59686, Nov. 4, 1998, as amended at 72 FR 31927, June 8, 2007]



Sec. 835.1002  Facility design and modifications.

    During the design of new facilities or modification of existing 
facilities, the following objectives shall be adopted:
    (a) Optimization methods shall be used to assure that occupational 
exposure is maintained ALARA in developing and justifying facility 
design and physical controls.
    (b) The design objective for controlling personnel exposure from 
external sources of radiation in areas of continuous occupational 
occupancy (2000 hours per year) shall be to maintain exposure levels 
below an average of 0.5 millirem (5 [micro]Sv) per hour and as far below 
this average as is reasonably achievable. The design objectives for 
exposure rates for potential exposure to a radiological worker where 
occupancy differs from the above shall be ALARA and shall not exceed 20 
percent of the applicable standards in Sec. 835.202.
    (c) Regarding the control of airborne radioactive material, the 
design objective shall be, under normal conditions, to avoid releases to 
the workplace atmosphere and in any situation, to control the inhalation 
of such material by workers to levels that are ALARA; confinement and 
ventilation shall normally be used.
    (d) The design or modification of a facility and the selection of 
materials shall include features that facilitate operations, 
maintenance, decontamination, and decommissioning.

[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59686, Nov. 4, 1998; 72 
FR 31927, June 8, 2007]



Sec. 835.1003  Workplace controls.

    During routine operations, the combination of engineered and 
administrative controls shall provide that:
    (a) The anticipated occupational dose to general employees shall not 
exceed the limits established at Sec. 835.202; and

[[Page 564]]

    (b) The ALARA process is utilized for personnel exposures to 
ionizing radiation.

[63 FR 59686, Nov. 4, 1998, as amended at 72 FR 31927, June 8, 2007]



               Subpart L_Radioactive Contamination Control

    Source: 63 FR 59686, Nov. 4, 1998, unless otherwise noted.



Sec. 835.1101  Control of material and equipment.

    (a) Except as provided in paragraphs (b) and (c) of this section, 
material and equipment in contamination areas, high contamination areas, 
and airborne radioactivity areas shall not be released to a controlled 
area if:
    (1) Removable surface contamination levels on accessible surfaces 
exceed the removable surface contamination values specified in appendix 
D of this part; or
    (2) Prior use suggests that the removable surface contamination 
levels on inaccessible surfaces are likely to exceed the removable 
surface contamination values specified in appendix D of this part.
    (b) Material and equipment exceeding the removable surface 
contamination values specified in appendix D of this part may be 
conditionally released for movement on-site from one radiological area 
for immediate placement in another radiological area only if appropriate 
monitoring is performed and appropriate controls for the movement are 
established and exercised.
    (c) Material and equipment with fixed contamination levels that 
exceed the total contamination values specified in appendix D of this 
part may be released for use in controlled areas outside of radiological 
areas only under the following conditions:
    (1) Removable surface contamination levels are below the removable 
surface contamination values specified in appendix D of this part; and
    (2) The material or equipment is routinely monitored and clearly 
marked or labeled to alert personnel of the contaminated status.



Sec. 835.1102  Control of areas.

    (a) Appropriate controls shall be maintained and verified which 
prevent the inadvertent transfer of removable contamination to locations 
outside of radiological areas under normal operating conditions.
    (b) Any area in which contamination levels exceed the values 
specified in appendix D of this part shall be controlled in a manner 
commensurate with the physical and chemical characteristics of the 
contaminant, the radionuclides present, and the fixed and removable 
surface contamination levels.
    (c) Areas accessible to individuals where the measured total surface 
contamination levels exceed, but the removable surface contamination 
levels are less than, corresponding surface contamination values 
specified in appendix D of this part, shall be controlled as follows 
when located outside of radiological areas:
    (1) The area shall be routinely monitored to ensure the removable 
surface contamination level remains below the removable surface 
contamination values specified in appendix D of this part; and
    (2) The area shall be conspicuously marked to warn individuals of 
the contaminated status.
    (d) Individuals exiting contamination, high contamination, or 
airborne radioactivity areas shall be monitored, as appropriate, for the 
presence of surface contamination.
    (e) Protective clothing shall be required for entry to areas in 
which removable contamination exists at levels exceeding the removable 
surface contamination values specified in appendix D of this part.



               Subpart M_Sealed Radioactive Source Control

    Source: 63 FR 59686, Nov. 4, 1998, unless otherwise noted.



Sec. 835.1201  Sealed radioactive source control.

    Sealed radioactive sources shall be used, handled, and stored in a 
manner commensurate with the hazards associated with operations 
involving the sources.

[[Page 565]]



Sec. 835.1202  Accountable sealed radioactive sources.

    (a) Each accountable sealed radioactive source shall be inventoried 
at intervals not to exceed six months. This inventory shall:
    (1) Establish the physical location of each accountable sealed 
radioactive source;
    (2) Verify the presence and adequacy of associated postings and 
labels; and
    (3) Establish the adequacy of storage locations, containers, and 
devices.
    (b) Except for sealed radioactive sources consisting solely of 
gaseous radioactive material or tritium, each accountable sealed 
radioactive source shall be subject to a source leak test upon receipt, 
when damage is suspected, and at intervals not to exceed six months. 
Source leak tests shall be capable of detecting radioactive material 
leakage equal to or exceeding 0.005 [micro]Ci.
    (c) Notwithstanding the requirements of paragraph (b) of this 
section, an accountable sealed radioactive source is not subject to 
periodic source leak testing if that source has been removed from 
service. Such sources shall be stored in a controlled location, subject 
to periodic inventory as required by paragraph (a) of this section, and 
subject to source leak testing prior to being returned to service.
    (d) Notwithstanding the requirements of paragraphs (a) and (b) of 
this section, an accountable sealed radioactive source is not subject to 
periodic inventory and source leak testing if that source is located in 
an area that is unsafe for human entry or otherwise inaccessible.
    (e) An accountable sealed radioactive source found to be leaking 
radioactive material shall be controlled in a manner that minimizes the 
spread of radioactive contamination.

[63 FR 59686, Nov. 4, 1998, as amended at 72 FR 31927, June 8, 2007]



                 Subpart N_Emergency Exposure Situations



Sec. 835.1301  General provisions.

    (a) A general employee whose occupational dose has exceeded the 
numerical value of any of the limits specified in Sec. 835.202 as a 
result of an authorized emergency exposure may be permitted to return to 
work in radiological areas during the current year providing that all of 
the following conditions are met:
    (1) Approval is first obtained from the contractor management and 
the Head of the responsible DOE field organization;
    (2) The individual receives counseling from radiological protection 
and medical personnel regarding the consequences of receiving additional 
occupational exposure during the year; and
    (3) The affected employee agrees to return to radiological work.
    (b) All doses exceeding the limits specified in Sec. 835.202 shall 
be recorded in the affected individual's occupational dose record.
    (c) When the conditions under which a dose was received in excess of 
the limits specified in Sec. 835.202, except those received in 
accordance with Sec. 835.204, have been eliminated, operating 
management shall notify the Head of the responsible DOE field 
organization.
    (d) Operations which have been suspended as a result of a dose in 
excess of the limits specified in Sec. 835.202, except those received 
in accordance with Sec. 835.204, may be resumed only with the approval 
of DOE.

[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59687, Nov. 4, 1998; 72 
FR 31927, June 8, 2007]



Sec. 835.1302  Emergency exposure situations.

    (a) The risk of injury to those individuals involved in rescue and 
recovery operations shall be minimized.
    (b) Operating management shall weigh actual and potential risks 
against the benefits to be gained.
    (c) No individual shall be required to perform a rescue action that 
might involve substantial personal risk.
    (d) Each individual authorized to perform emergency actions likely 
to result in occupational doses exceeding the values of the limits 
provided at

[[Page 566]]

Sec. 835.202(a) shall be trained in accordance with Sec. 835.901(b) 
and briefed beforehand on the known or anticipated hazards to which the 
individual will be subjected.

[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59687, Nov. 4, 1998]



Sec. 835.1303  [Reserved]



Sec. 835.1304  Nuclear accident dosimetry.

    (a) Installations possessing sufficient quantities of fissile 
material to potentially constitute a critical mass, such that the 
excessive exposure of individuals to radiation from a nuclear accident 
is possible, shall provide nuclear accident dosimetry for those 
individuals.
    (b) Nuclear accident dosimetry shall include the following:
    (1) A method to conduct initial screening of individuals involved in 
a nuclear accident to determine whether significant exposures to 
radiation occurred;
    (2) Methods and equipment for analysis of biological materials;
    (3) A system of fixed nuclear accident dosimeter units; and
    (4) Personal nuclear accident dosimeters.

[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59687, Nov. 4, 1998]



   Sec. Appendix A to Part 835--Derived Air Concentrations (DAC) for 
       Controlling Radiation Exposure to Workers at DOE Facilities

    The data presented in appendix A are to be used for controlling 
individual internal doses in accordance with Sec. 835.209, identifying 
the need for air monitoring in accordance with Sec. 835.403, and 
identifying and posting airborne radioactivity areas in accordance with 
Sec. 835.603(d).
    The DAC values are given for individual radionuclides. For known 
mixtures of radionuclides, determine the sum of the ratio of the 
observed concentration of a particular radionuclide and its 
corresponding DAC for all radionuclides in the mixture. If this sum 
exceeds unity (1), then the DAC has been exceeded. For unknown 
radionuclides, the most restrictive DAC (lowest value) for those 
isotopes not known to be absent shall be used. For any single 
radionuclide not listed in appendix A with decay mode other than alpha 
emission or spontaneous fission and with radioactive half-life greater 
than two hours, the DAC value shall be 4 E-11 [micro]Ci/mL (1 Bq/m\3\). 
For any single radionuclide not listed in appendix A that decays by 
alpha emission or spontaneous fission the DAC value shall be 2 E-13 
[micro]Ci/mL (8 E-03 Bq/m\3\).
    The DACs for limiting radiation exposures through inhalation of 
radionuclides by workers are listed in this appendix. The values are 
based on either a stochastic (committed effective dose) dose limit of 5 
rems (0.05 Sv) or a deterministic (organ or tissue) dose limit of 50 
rems (0.5 Sv) per year, whichever is more limiting.

    Note: the 15 rems (0.15 Sv) dose limit for the lens of the eye does 
not appear as a critical organ dose limit.

    The columns in this appendix contain the following information: (1) 
Radionuclide; (2) inhaled air DAC for type F (fast), type M (moderate), 
and type S (slow) materials in units of [micro]Ci/mL; (3) inhaled air 
DAC for type F (fast), type M (moderate), and type S (slow) materials in 
units of Bq/m\3\; (4) an indication of whether or not the DAC for each 
class is controlled by the stochastic (effective dose) or deterministic 
(organ or tissue) dose. The absorption types (F, M, and S) have been 
established to describe the absorption type of the materials from the 
respiratory tract into the blood. The range of half-times for the 
absorption types correspond to: Type F, 100% at 10 minutes; Type M, 10% 
at 10 minutes and 90% at 140 days; and Type S 0.1% at 10 minutes and 
99.9% at 7000 days. The DACs are listed by radionuclide, in order of 
increasing atomic mass, and are based on the assumption that the 
particle size distribution of 5 micrometers AMAD is used. For situations 
where the particle size distribution is known to differ significantly 
from 5 micrometers AMAD, appropriate corrections may be made to both the 
estimated dose to workers and the DACs.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                Absorption type \3\                                Absorption type \3\                   Stochastic or
                                ------------------------------------------------------------------------------------------------------  organ or tissue
          Radionuclide                              [micro]Ci/mL                                         Bq/m \3\                             \1\
                                ------------------------------------------------------------------------------------------------------------------------
                                        F                M                S                F                M                S              (F/M/S)
--------------------------------------------------------------------------------------------------------------------------------------------------------
H-3 (Water) \2\................  2 E-05           2 E-05           2 E-05           7 E+05           7 E+05           7 E+05           St/St/St
H-3 (Elemental) \2\............  2 E-01           2 E-01           2 E-01           9 E+09           9 E+09           9 E+09           St/St/St
STCs (Insoluble) \4\...........  1 E-05           6 E-06           2 E-06           3 E+05           2 E+05           8 E+04           St/St/St
STCs (Soluble).................  1 E-05           1 E-05           1 E-05           5 E+05           5 E+05           5 E+05           St/St/St
Be-7...........................   -               1 E-05           1 E-05            -               4 E+05           4 E+05           /St/St

[[Page 567]]

 
Be-10..........................   -               8 E-08           2 E-08            -               3 E+03           1 E+03           /St/St
C-11 (Vapor) \2\...............   -               1 E-04            -                -               6 E+06            -               /St/
C-11 (CO) \2\..................  4 E-04           4 E-04           4 E-04           1 E+07           1 E+07           1 E+07           St/St/St
C-11 (CO2) \2\.................  2 E-04           2 E-04           2 E-04           9 E+06           9 E+06           9 E+06           St/St/St
C-14 (Vapor) \2\...............   -               9 E-07            -                -               3 E+04            -               /St/
C-14 (CO) \2\..................  7 E-04           7 E-04           7 E-04           2 E+07           2 E+07           2 E+07           St/St/St
C-14 (CO2) \2\.................  8 E-05           8 E-05           8 E-05           3 E+06           3 E+06           3 E+06           St/St/St
F-18...........................  4 E-06           3 E-06           3 E-06           1 E+05           1 E+05           1 E+05           ET/ET/ET
Na-22..........................  2 E-07            -                -               1 E+04            -                -               E/ /
Na-24..........................  4 E-07            -                -               1 E+04            -                -               ET/ /
Mg-28..........................  3 E-07           3 E-07            -               1 E+04           1 E+04            -               ET/St/
Al-26..........................  4 E-08           4 E-08            -               1 E+03           1 E+03            -               St/St/
Si-31..........................  9 E-06           5 E-06           5 E-06           3 E+05           1 E+05           1 E+05           ET/St/St
Si-32..........................  1 E-07           5 E-08           1 E-08           5 E+03           2 E+03           3 E+02           St/St/St
P-32...........................  5 E-07           1 E-07            -               1 E+04           7 E+03            -               St/St/
P-33...........................  4 E-06           4 E-07            -               1 E+05           1 E+04            -               St/St/
S-35 (Vapor)...................   -               4 E-06            -                -               1 E+05            -               /St/
S-35...........................  7 E-06           5 E-07            -               2 E+05           1 E+04            -               St/St/
Cl-36..........................  1 E-06           1 E-07            -               4 E+04           4 E+03            -               St/St/
Cl-38..........................  7 E-06           5 E-06            -               2 E+05           2 E+05            -               ET/ET/
Cl-39..........................  2 E-06           4 E-06            -               1 E+05           1 E+05            -               ET/ET/
K-40...........................  1 E-07            -                -               6 E+03            -                -               St/ /
K-42...........................  2 E-06            -                -               1 E+05            -                -               E/ /
K-43...........................  9 E-07            -                -               3 E+04            -                -               ET/ /
K-44...........................  8 E-06            -                -               2 E+05            -                -               ET/ /
K-45...........................  9 E-06            -                -               3 E+05            -                -               ET/ /
Ca-41..........................   -               2 E-06            -                -               8 E+04            -               /BS/
Ca-45..........................   -               2 E-07            -                -               9 E+03            -               /St/
Ca-47..........................   -               2 E-07            -                -               9 E+03            -               /St/
Sc-43..........................   -                -               2 E-06            -                -               7 E+04           / /ET
Sc-44m.........................   -                -               2 E-07            -                -               1 E+04           / /St
Sc-44..........................   -                -               1 E-06            -                -               4 E+04           / /ET
Sc-46..........................   -                -               1 E-07            -                -               4 E+03           / /St
Sc-47..........................   -                -               7 E-07            -                -               2 E+04           / /St
Sc-48..........................   -                -               2 E-07            -                -               1 E+04           / /ET
Sc-49..........................   -                -               8 E-06            -                -               3 E+05           / /ET
Ti-44..........................  7 E-09           2 E-08           9 E-09           2 E+02           7 E+02           3 E+02           St/St/St
Ti-45..........................  3 E-06           2 E-06           2 E-06           1 E+05           1 E+05           1 E+05           ET/ET/ET
V-47...........................  8 E-06           6 E-06            -               3 E+05           2 E+05            -               ET/ET/
V-48...........................  2 E-07           2 E-07            -               9 E+03           7 E+03            -               ET/St/
V-49...........................  1 E-05           2 E-05            -               7 E+05           9 E+05            -               BS/St/
Cr-48..........................  2 E-06           2 E-06           2 E-06           8 E+04           8 E+04           8 E+04           ET/ET/ET
Cr-49..........................  7 E-06           5 E-06           5 E-06           2 E+05           2 E+05           2 E+05           ET/ET/ET
Cr-51..........................  1 E-05           1 E-05           1 E-05           6 E+05           6 E+05           5 E+05           St/St/St
Mn-51..........................  7 E-06           5 E-06            -               2 E+05           2 E+05            -               ET/ET/
Mn-52m.........................  7 E-06           5 E-06            -               2 E+05           2 E+05            -               ET/ET/
Mn-52..........................  2 E-07           2 E-07            -               8 E+03           8 E+03            -               ET/ET/
Mn-53..........................  5 E-06           1 E-05            -               2 E+05           5 E+05            -               BS/St/
Mn-54..........................  5 E-07           4 E-07            -               1 E+04           1 E+04            -               St/St/
Mn-56..........................  2 E-06           2 E-06            -               9 E+04           8 E+04            -               ET/ET/
Fe-52..........................  6 E-07           5 E-07            -               2 E+04           2 E+04            -               ET/E/
Fe-55..........................  6 E-07           1 E-06            -               2 E+04           6 E+04            -               St/St/
Fe-59..........................  1 E-07           1 E-07            -               6 E+03           6 E+03            -               St/St/
Fe-60..........................  1 E-09           4 E-09            -               6 E+01           1 E+02            -               St/St/
Co-55..........................   -               5 E-07           5 E-07            -               2 E+04           2 E+04           /ET/ET
Co-56..........................   -               1 E-07           1 E-07            -               5 E+03           4 E+03           /St/St
Co-57..........................   -               1 E-06           9 E-07            -               5 E+04           3 E+04           /St/St
Co-58m.........................   -               3 E-05           3 E-05            -               1 E+06           1 E+06           /St/St
Co-58..........................   -               4 E-07           3 E-07            -               1 E+04           1 E+04           /St/St
Co-60m.........................   -               4 E-04           4 E-04            -               1 E+07           1 E+07           /St/St
Co-60..........................   -               7 E-08           3 E-08            -               2 E+03           1 E+03           /St/St
Co-61..........................   -               6 E-06           6 E-06            -               2 E+05           2 E+05           /ET/ET
Co-62m.........................   -               7 E-06           6 E-06            -               2 E+05           2 E+05           /ET/ET
Ni-56 (Inorg)..................  4 E-07           4 E-07            -               1 E+04           1 E+04            -               ET/ET/
Ni-56 (Carbonyl)...............   -               4 E-07            -                -               1 E+04            -               /St/
Ni-57 (Inorg)..................  5 E-07           5 E-07            -               2 E+04           2 E+04            -               ET/ET/
Ni-57 (Carbonyl)...............   -               7 E-07            -                -               2 E+04            -               /ET/
Ni-59 (Inorg)..................  2 E-06           5 E-06            -               9 E+04           2 E+05            -               St/St/
Ni-59 (Carbonyl)...............   -               6 E-07            -                -               2 E+04            -               /St/

[[Page 568]]

 
Ni-63 (Inorg)..................  1 E-06           1 E-06            -               4 E+04           6 E+04            -               St/St/
Ni-63 (Carbonyl)...............   -               2 E-07            -                -               1 E+04            -               /St/
Ni-65 (Inorg)..................  5 E-06           4 E-06            -               1 E+05           1 E+05            -               ET/ET/
Ni-65 (Carbonyl)...............   -               8 E-07            -                -               3 E+04            -               /ET/
Ni-66 (Inorg)..................  7 E-07           2 E-07            -               2 E+04           1 E+04            -               St/St/
Ni-66 (Carbonyl)...............   -               2 E-07            -                -               1 E+04            -               /ET/
Cu-60..........................  5 E-06           4 E-06           4 E-06           1 E+05           1 E+05           1 E+05           ET/ET/ET
Cu-61..........................  3 E-06           3 E-06           3 E-06           1 E+05           1 E+05           1 E+05           ET/ET/ET
Cu-64..........................  4 E-06           3 E-06           3 E-06           1 E+05           1 E+05           1 E+05           ET/E/E
Cu-67..........................  2 E-06           1 E-06           9 E-07           8 E+04           3 E+04           3 E+04           ET/St/St
Zn-62..........................   -                -               8 E-07            -                -               3 E+04           / /St
Zn-63..........................   -                -               5 E-06            -                -               2 E+05           / /ET
Zn-65..........................   -                -               2 E-07            -                -               7 E+03           / /St
Zn-69m.........................   -                -               1 E-06            -                -               6 E+04           / /St
Zn-69..........................   -                -               7 E-06            -                -               2 E+05           / /ET
Zn-71m.........................   -                -               1 E-06            -                -               5 E+04           / /ET
Zn-72..........................   -                -               3 E-07            -                -               1 E+04           / /St
Ga-65..........................  1 E-05           9 E-06            -               4 E+05           3 E+05            -               ET/ET/
Ga-66..........................  8 E-07           7 E-07            -               3 E+04           2 E+04            -               ET/St/
Ga-67..........................  3 E-06           2 E-06            -               1 E+05           7 E+04            -               ET/St/
Ga-68..........................  6 E-06           4 E-06            -               2 E+05           1 E+05            -               ET/ET/
Ga-70..........................  1 E-05           1 E-05            -               6 E+05           4 E+05            -               ET/ET/
Ga-72..........................  5 E-07           5 E-07            -               2 E+04           2 E+04            -               ET/ET/
Ga-73..........................  4 E-06           2 E-06            -               1 E+05           1 E+05            -               ET/St/
Ge-66..........................  2 E-06           2 E-06            -               9 E+04           9 E+04            -               ET/ET/
Ge-67..........................  1 E-05           7 E-06            -               3 E+05           2 E+05            -               ET/ET/
Ge-68..........................  6 E-07           7 E-08            -               2 E+04           2 E+03            -               ET/St/
Ge-69..........................  1 E-06           1 E-06            -               3 E+04           3 E+04            -               ET/ET/
Ge-71..........................  5 E-05           5 E-05            -               2 E+06           1 E+06            -               ET/E/
Ge-75..........................  1 E-05           7 E-06            -               4 E+05           2 E+05            -               ET/ET/
Ge-77..........................  1 E-06           1 E-06            -               4 E+04           4 E+04            -               ET/ET/
Ge-78..........................  3 E-06           3 E-06            -               1 E+05           1 E+05            -               ET/ET/
As-69..........................   -               9 E-06            -                -               3 E+05            -               /ET/
As-70..........................   -               2 E-06            -                -               8 E+04            -               /ET/
As-71..........................   -               1 E-06            -                -               4 E+04            -               /St/
As-72..........................   -               4 E-07            -                -               1 E+04            -               /St/
As-73..........................   -               8 E-07            -                -               3 E+04            -               /St/
As-74..........................   -               3 E-07            -                -               1 E+04            -               /St/
As-76..........................   -               6 E-07            -                -               2 E+04            -               /St/
As-77..........................   -               1 E-06            -                -               4 E+04            -               /St/
As-78..........................   -               3 E-06            -                -               1 E+05            -               /ET/
Se-70..........................  2 E-06           2 E-06            -               1 E+05           9 E+04            -               ET/ET/
Se-73m.........................  1 E-05           1 E-05            -               5 E+05           4 E+05            -               ET/ET/
Se-73..........................  1 E-06           1 E-06            -               6 E+04           5 E+04            -               ET/ET/
Se-75..........................  4 E-07           3 E-07            -               1 E+04           1 E+04            -               St/St/
Se-79..........................  3 E-07           1 E-07            -               1 E+04           6 E+03            -               K/St/
Se-81m.........................  1 E-05           6 E-06            -               3 E+05           2 E+05            -               ET/ET/
Se-81..........................  1 E-05           1 E-05            -               6 E+05           4 E+05            -               ET/ET/
Se-83..........................  6 E-06           5 E-06            -               2 E+05           1 E+05            -               ET/ET/
Br-74m.........................  3 E-06           2 E-06            -               1 E+05           1 E+05            -               ET/ET/
Br-74..........................  4 E-06           4 E-06            -               1 E+05           1 E+05            -               ET/ET/
Br-75..........................  4 E-06           3 E-06            -               1 E+05           1 E+05            -               ET/ET/
Br-76..........................  5 E-07           5 E-07            -               2 E+04           2 E+04            -               ET/ET/
Br-77..........................  2 E-06           2 E-06            -               7 E+04           7 E+04            -               ET/ET/
Br-80m.........................  6 E-06           5 E-06            -               2 E+05           2 E+05            -               ET/St/
Br-80..........................  3 E-05           2 E-05            -               1 E+06           7 E+05            -               ET/ET/
Br-82..........................  3 E-07           3 E-07            -               1 E+04           1 E+04            -               ET/ET/
Br-83..........................  9 E-06           6 E-06            -               3 E+05           2 E+05            -               ET/ET/
Br-84..........................  7 E-06           5 E-06            -               2 E+05           2 E+05            -               ET/ET/
Rb-79..........................  8 E-06            -                -               2 E+05            -                -               ET/ /
Rb-81m.........................  1 E-05            -                -               6 E+05            -                -               ET/ /
Rb-81..........................  2 E-06            -                -               1 E+05            -                -               ET/ /
Rb-82m.........................  8 E-07            -                -               3 E+04            -                -               ET/ /
Rb-83..........................  5 E-07            -                -               2 E+04            -                -               St/ /
Rb-84..........................  3 E-07            -                -               1 E+04            -                -               St/ /
Rb-86..........................  4 E-07            -                -               1 E+04            -                -               St/ /
Rb-87..........................  7 E-07            -                -               2 E+04            -                -               St/ /
Rb-88..........................  1 E-05            -                -               5 E+05            -                -               ET/ /

[[Page 569]]

 
Rb-89..........................  1 E-05            -                -               3 E+05            -                -               ET/ /
Sr-80..........................  3 E-06            -               2 E-06           1 E+05            -               9 E+04           ET/ /St
Sr-81..........................  7 E-06            -               5 E-06           2 E+05            -               2 E+05           ET/ /ET
Sr-82..........................  1 E-07            -               7 E-08           6 E+03            -               2 E+03           St/ /St
Sr-83..........................  1 E-06            -               9 E-07           3 E+04            -               3 E+04           ET/ /ET
Sr-85m.........................  4 E-05            -               3 E-05           1 E+06            -               1 E+06           ET/ /ET
Sr-85..........................  1 E-06            -               8 E-07           3 E+04            -               3 E+04           St/ /St
Sr-87m.........................  1 E-05            -               9 E-06           4 E+05            -               3 E+05           ET/ /ET
Sr-89..........................  4 E-07            -               1 E-07           1 E+04            -               3 E+03           St/ /St
Sr-90..........................  1 E-08            -               7 E-09           4 E+02            -               2 E+02           BS/ /St
Sr-91..........................  1 E-06            -               9 E-07           5 E+04            -               3 E+04           ET/ /St
Sr-92..........................  2 E-06            -               1 E-06           8 E+04            -               6 E+04           ET/ /St
Y-86m..........................   -               7 E-06           6 E-06            -               2 E+05           2 E+05           /ET/ET
Y-86...........................   -               4 E-07           4 E-07            -               1 E+04           1 E+04           /ET/ET
Y-87...........................   -               9 E-07           8 E-07            -               3 E+04           3 E+04           /ET/ET
Y-88...........................   -               1 E-07           1 E-07            -               6 E+03           6 E+03           /St/St
Y-90m..........................   -               4 E-06           4 E-06            -               1 E+05           1 E+05           /St/St
Y-90...........................   -               3 E-07           3 E-07            -               1 E+04           1 E+04           /St/St
Y-91m..........................   -               2 E-05           2 E-05            -               7 E+05           7 E+05           /ET/ET
Y-91...........................   -               1 E-07           9 E-08            -               4 E+03           3 E+03           /St/St
Y-92...........................   -               2 E-06           2 E-06            -               7 E+04           7 E+04           /St/St
Y-93...........................   -               9 E-07           9 E-07            -               3 E+04           3 E+04           /St/St
Y-94...........................   -               8 E-06           8 E-06            -               3 E+05           3 E+05           /ET/ET
Y-95...........................   -               1 E-05           1 E-05            -               4 E+05           4 E+05           /ET/ET
Zr-86..........................  5 E-07           5 E-07           5 E-07           2 E+04           2 E+04           2 E+04           ET/ET/ET
Zr-88..........................  1 E-07           3 E-07           3 E-07           5 E+03           1 E+04           1 E+04           St/St/St
Zr-89..........................  6 E-07           6 E-07           6 E-07           2 E+04           2 E+04           2 E+04           ET/ET/ET
Zr-93..........................  3 E-09           1 E-08           1 E-07           1 E+02           6 E+02           5 E+03           BS/BS/BS
Zr-95..........................  9 E-08           1 E-07           1 E-07           3 E+03           5 E+03           4 E+03           BS/St/St
Zr-97..........................  7 E-07           4 E-07           4 E-07           2 E+04           1 E+04           1 E+04           ET/St/St
Nb-88..........................   -               5 E-06           5 E-06            -               1 E+05           1 E+05           /ET/ET
Nb-89 (66 min).................   -               3 E-06           3 E-06            -               1 E+05           1 E+05           /ET/ET
Nb-89 (122 min)................   -               2 E-06           2 E-06            -               1 E+05           1 E+05           /ET/ET
Nb-90..........................   -               3 E-07           3 E-07            -               1 E+04           1 E+04           /ET/ET
Nb-93m.........................   -               1 E-06           6 E-07            -               7 E+04           2 E+04           /St/St
Nb-94..........................   -               7 E-08           2 E-08            -               2 E+03           8 E+02           /St/St
Nb-95m.........................   -               7 E-07           6 E-07            -               2 E+04           2 E+04           /St/St
Nb-95..........................   -               4 E-07           4 E-07            -               1 E+04           1 E+04           /St/St
Nb-96..........................   -               4 E-07           4 E-07            -               1 E+04           1 E+04           /ET/ET
Nb-97..........................   -               5 E-06           5 E-06            -               1 E+05           1 E+05           /ET/ET
Nb-98..........................   -               3 E-06           3 E-06            -               1 E+05           1 E+05           /ET/ET
Mo-90..........................  8 E-07            -               7 E-07           3 E+04            -               2 E+04           ET/ /ET
Mo-93m.........................  1 E-06            -               1 E-06           3 E+04            -               3 E+04           ET/ /ET
Mo-93..........................  2 E-07            -               4 E-07           7 E+03            -               1 E+04           BS/ /St
Mo-99..........................  1 E-06            -               5 E-07           5 E+04            -               1 E+04           E/ /St
Mo-101.........................  8 E-06            -               6 E-06           3 E+05            -               2 E+05           ET/ /ET
Tc-93m.........................  8 E-06           7 E-06            -               3 E+05           2 E+05            -               ET/ET/
Tc-93..........................  3 E-06           3 E-06            -               1 E+05           1 E+05            -               ET/ET/
Tc-94m.........................  5 E-06           4 E-06            -               1 E+05           1 E+05            -               ET/ET/
Tc-94..........................  1 E-06           1 E-06            -               4 E+04           3 E+04            -               ET/ET/
Tc-95m.........................  8 E-07           6 E-07            -               3 E+04           2 E+04            -               ET/St/
Tc-95..........................  1 E-06           1 E-06            -               5 E+04           5 E+04            -               ET/ET/
Tc-96m.........................  2 E-05           2 E-05            -               1 E+06           1 E+06            -               ET/ET/
Tc-96..........................  3 E-07           3 E-07            -               1 E+04           1 E+04            -               ET/ET/
Tc-97m.........................  1 E-06           2 E-07            -               5 E+04           7 E+03            -               St/St/
Tc-97..........................  4 E-06           3 E-06            -               1 E+05           1 E+05            -               ET/St/
Tc-98..........................  3 E-07           9 E-08            -               1 E+04           3 E+03            -               St/St/
Tc-99m.........................  1 E-05           1 E-05            -               5 E+05           4 E+05            -               ET/ET/
Tc-99..........................  1 E-06           1 E-07            -               5 E+04           6 E+03            -               St/St/
Tc-101.........................  1 E-05           1 E-05            -               6 E+05           4 E+05            -               ET/ET/
Tc-104.........................  9 E-06           7 E-06            -               3 E+05           2 E+05            -               ET/ET/
Ru-94..........................  5 E-06           5 E-06           5 E-06           2 E+05           1 E+05           1 E+05           ET/ET/ET
Ru-97..........................  2 E-06           2 E-06           2 E-06           8 E+04           8 E+04           8 E+04           ET/ET/ET
Ru-103.........................  8 E-07           2 E-07           2 E-07           3 E+04           1 E+04           9 E+03           St/St/St
Ru-105.........................  2 E-06           2 E-06           2 E-06           9 E+04           8 E+04           8 E+04           ET/ET/ET
Ru-106.........................  5 E-08           3 E-08           1 E-08           2 E+03           1 E+03           5 E+02           St/St/St
Rh-99m.........................  3 E-06           3 E-06           3 E-06           1 E+05           1 E+05           1 E+05           ET/ET/ET
Rh-99..........................  8 E-07           6 E-07           6 E-07           3 E+04           2 E+04           2 E+04           ET/St/St
Rh-100.........................  5 E-07           5 E-07           5 E-07           1 E+04           1 E+04           1 E+04           ET/ET/ET
Rh-101m........................  1 E-06           1 E-06           1 E-06           6 E+04           6 E+04           6 E+04           ET/ET/ET

[[Page 570]]

 
Rh-101.........................  3 E-07           3 E-07           1 E-07           1 E+04           1 E+04           6 E+03           St/St/St
Rh-102m........................  2 E-07           2 E-07           1 E-07           1 E+04           7 E+03           4 E+03           St/St/St
Rh-102.........................  6 E-08           1 E-07           6 E-08           2 E+03           4 E+03           2 E+03           St/St/St
Rh-103m........................  4 E-04           2 E-04           2 E-04           1 E+07           8 E+06           8 E+06           St/St/St
Rh-105.........................  3 E-06           1 E-06           1 E-06           1 E+05           5 E+04           4 E+04           ET/St/St
Rh-106m........................  1 E-06           1 E-06           1 E-06           6 E+04           5 E+04           5 E+04           ET/ET/ET
Rh-107.........................  1 E-05           9 E-06           9 E-06           5 E+05           3 E+05           3 E+05           ET/ET/ET
Pd-100.........................  5 E-07           5 E-07           5 E-07           2 E+04           2 E+04           2 E+04           ET/ET/ET
Pd-101.........................  3 E-06           3 E-06           3 E-06           1 E+05           1 E+05           1 E+05           ET/ET/ET
Pd-103.........................  4 E-06           1 E-06           1 E-06           1 E+05           6 E+04           7 E+04           E/St/St
Pd-107.........................  1 E-05           1 E-05           1 E-06           5 E+05           4 E+05           7 E+04           K/St/St
Pd-109.........................  2 E-06           1 E-06           1 E-06           9 E+04           4 E+04           4 E+04           St/St/St
Ag-102.........................  9 E-06           7 E-06           7 E-06           3 E+05           2 E+05           2 E+05           ET/ET/ET
Ag-103.........................  8 E-06           7 E-06           7 E-06           3 E+05           2 E+05           2 E+05           ET/ET/ET
Ag-104m........................  8 E-06           6 E-06           6 E-06           2 E+05           2 E+05           2 E+05           ET/ET/ET
Ag-104.........................  3 E-06           3 E-06           3 E-06           1 E+05           1 E+05           1 E+05           ET/ET/ET
Ag-105.........................  7 E-07           8 E-07           7 E-07           2 E+04           2 E+04           2 E+04           St/St/St
Ag-106m........................  2 E-07           2 E-07           2 E-07           9 E+03           9 E+03           9 E+03           ET/ET/ET
Ag-106.........................  1 E-05           1 E-05           1 E-05           5 E+05           4 E+05           4 E+05           ET/ET/ET
Ag-108m........................  7 E-08           1 E-07           2 E-08           2 E+03           4 E+03           1 E+03           St/St/St
Ag-110m........................  8 E-08           9 E-08           7 E-08           3 E+03           3 E+03           2 E+03           St/St/St
Ag-111.........................  9 E-07           3 E-07           3 E-07           3 E+04           1 E+04           1 E+04           St/St/St
Ag-112.........................  4 E-06           2 E-06           2 E-06           1 E+05           8 E+04           8 E+04           E/St/St
Ag-115.........................  1 E-05           8 E-06           8 E-06           4 E+05           3 E+05           3 E+05           ET/ET/ET
Cd-104.........................  4 E-06           4 E-06           4 E-06           1 E+05           1 E+05           1 E+05           ET/ET/ET
Cd-107.........................  5 E-06           5 E-06           4 E-06           2 E+05           1 E+05           1 E+05           ET/ET/ET
Cd-109.........................  2 E-08           9 E-08           1 E-07           9 E+02           3 E+03           4 E+03           K/K/St
Cd-113m........................  1 E-09           6 E-09           1 E-08           6 E+01           2 E+02           6 E+02           K/K/K
Cd-113.........................  1 E-09           5 E-09           1 E-08           5 E+01           2 E+02           5 E+02           K/K/K
Cd-115m........................  3 E-08           1 E-07           1 E-07           1 E+03           3 E+03           3 E+03           K/St/St
Cd-115.........................  9 E-07           4 E-07           4 E-07           3 E+04           1 E+04           1 E+04           K/St/St
Cd-117m........................  1 E-06           1 E-06           1 E-06           4 E+04           4 E+04           4 E+04           ET/ET/ET
Cd-117.........................  2 E-06           2 E-06           2 E-06           8 E+04           7 E+04           7 E+04           ET/ET/ET
In-109.........................  4 E-06           4 E-06            -               1 E+05           1 E+05            -               ET/ET/
In-110 (69 min)................  5 E-06           4 E-06            -               1 E+05           1 E+05            -               ET/ET/
In-110 (5 h)...................  9 E-07           9 E-07            -               3 E+04           3 E+04            -               ET/ET/
In-111.........................  1 E-06           1 E-06            -               5 E+04           5 E+04            -               ET/ET/
In-112.........................  2 E-05           1 E-05            -               9 E+05           6 E+05            -               ET/ET/
In-113m........................  1 E-05           1 E-05            -               4 E+05           3 E+05            -               ET/ET/
In-114m........................  5 E-08           9 E-08            -               1 E+03           3 E+03            -               St/St/
In-115m........................  6 E-06           5 E-06            -               2 E+05           2 E+05            -               ET/ET/
In-115.........................  1 E-09           5 E-09            -               4 E+01           1 E+02            -               St/St/
In-116m........................  4 E-06           3 E-06            -               1 E+05           1 E+05            -               ET/ET/
In-117m........................  5 E-06           4 E-06            -               2 E+05           1 E+05            -               ET/ET/
In-117.........................  7 E-06           5 E-06            -               2 E+05           2 E+05            -               ET/ET/
In-119m........................  1 E-05           1 E-05            -               6 E+05           4 E+05            -               ET/ET/
Sn-110.........................  1 E-06           1 E-06            -               6 E+04           6 E+04            -               ET/ET/
Sn-111.........................  1 E-05           1 E-05            -               6 E+05           5 E+05            -               ET/ET/
Sn-113.........................  7 E-07           2 E-07            -               2 E+04           1 E+04            -               St/St/
Sn-117m........................  8 E-07           2 E-07            -               3 E+04           9 E+03            -               BS/St/
Sn-119m........................  1 E-06           3 E-07            -               5 E+04           1 E+04            -               St/St/
Sn-121m........................  5 E-07           1 E-07            -               2 E+04           6 E+03            -               St/St/
Sn-121.........................  4 E-06           2 E-06            -               1 E+05           7 E+04            -               ET/St/
Sn-123m........................  1 E-05           7 E-06            -               4 E+05           2 E+05            -               ET/ET/
Sn-123.........................  3 E-07           1 E-07            -               1 E+04           3 E+03            -               St/St/
Sn-125.........................  4 E-07           2 E-07            -               1 E+04           7 E+03            -               St/St/
Sn-126.........................  4 E-08           3 E-08            -               1 E+03           1 E+03            -               St/St/
Sn-127.........................  2 E-06           2 E-06            -               9 E+04           7 E+04            -               ET/ET/
Sn-128.........................  2 E-06           2 E-06            -               1 E+05           8 E+04            -               ET/ET/
Sb-115.........................  1 E-05           1 E-05            -               5 E+05           4 E+05            -               ET/ET/
Sb-116m........................  3 E-06           2 E-06            -               1 E+05           1 E+05            -               ET/ET/
Sb-116.........................  1 E-05           1 E-05            -               4 E+05           3 E+05            -               ET/ET/
Sb-117.........................  1 E-05           1 E-05            -               4 E+05           3 E+05            -               ET/ET/
Sb-118m........................  1 E-06           1 E-06            -               4 E+04           4 E+04            -               ET/ET/
Sb-119.........................  6 E-06           6 E-06            -               2 E+05           2 E+05            -               ET/ET/
Sb-120 (16 min)................  2 E-05           2 E-05            -               1 E+06           7 E+05            -               ET/ET/
Sb-120 (6 d)...................  3 E-07           3 E-07            -               1 E+04           1 E+04            -               ET/ET/
Sb-122.........................  8 E-07           4 E-07            -               3 E+04           1 E+04            -               St/St/
Sb-124m........................  4 E-05           3 E-05            -               1 E+06           1 E+06            -               ET/ET/
Sb-124.........................  2 E-07           1 E-07            -               1 E+04           4 E+03            -               St/St/

[[Page 571]]

 
Sb-125.........................  2 E-07           1 E-07            -               7 E+03           6 E+03            -               BS/St/
Sb-126m........................  1 E-05           7 E-06            -               3 E+05           2 E+05            -               ET/ET/
Sb-126.........................  2 E-07           1 E-07            -               9 E+03           6 E+03            -               ET/St/
Sb-127.........................  7 E-07           3 E-07            -               2 E+04           1 E+04            -               E/St/
Sb-128 (9 h)...................  5 E-07           5 E-07            -               2 E+04           2 E+04            -               ET/ET/
Sb-128 (10 min)................  1 E-05           9 E-06            -               4 E+05           3 E+05            -               ET/ET/
Sb-129.........................  1 E-06           1 E-06            -               6 E+04           5 E+04            -               ET/ET/
Sb-130.........................  3 E-06           2 E-06            -               1 E+05           1 E+05            -               ET/ET/
Sb-131.........................  6 E-06           4 E-06            -               2 E+05           1 E+05            -               ET/ET/
Te-116 (Vapor).................   -               6 E-06            -                -               2 E+05            -               /St /
Te-116.........................  2 E-06           2 E-06            -               8 E+04           7 E+04            -               ET/ET/
Te-121m (Vapor)................   -               4 E-08            -                -               1 E+03            -               /BS/
Te-121m........................  1 E-07           1 E-07            -               4 E+03           5 E+03            -               BS/St/
Te-121 (Vapor).................   -               1 E-06            -                -               4 E+04            -               /St /
Te-121.........................  1 E-06           1 E-06            -               3 E+04           3 E+04            -               ET/ET/
Te-123m (Vapor)................   -               5 E-08            -                -               2 E+03            -               /BS/
Te-123m........................  1 E-07           1 E-07            -               4 E+03           6 E+03            -               BS/St/
Te-123 (Vapor).................   -               1 E-08            -                -               4 E+02            -               /BS/
Te-123.........................  2 E-08           5 E-08            -               1 E+03           1 E+03            -               BS/BS/
Te-125m (Vapor)................   -               1 E-07            -                -               3 E+03            -               /BS/
Te-125m........................  2 E-07           1 E-07            -               9 E+03           7 E+03            -               BS/St/
Te-127m (Vapor)................   -               6 E-08            -                -               2 E+03            -               /BS/
Te-127m........................  1 E-07           9 E-08            -               5 E+03           3 E+03            -               BS/St/
Te-127 (Vapor).................   -               7 E-06            -                -               2 E+05            -               /St/
Te-127.........................  5 E-06           3 E-06            -               2 E+05           1 E+05            -               ET/St/
Te-129m (Vapor)................   -               1 E-07            -                -               5 E+03            -               /St/
Te-129m........................  3 E-07           1 E-07            -               1 E+04           3 E+03            -               St/St/
Te-129 (Vapor).................   -               1 E-05            -                -               5 E+05            -               /St/
Te-129.........................  1 E-05           7 E-06            -               4 E+05           2 E+05            -               ET/ET/
Te-131m (Vapor)................   -               1 E-07            -                -               5 E+03            -               /T/
Te-131m........................  3 E-07           3 E-07            -               1 E+04           1 E+04            -               T/St/
Te-131 (Vapor).................   -               6 E-06            -                -               2 E+05            -               /T/
Te-131.........................  1 E-05           7 E-06            -               4 E+05           2 E+05            -               ET/ET/
Te-132 (Vapor).................   -               7 E-08            -                -               2 E+03            -               /T/
Te-132.........................  1 E-07           1 E-07            -               6 E+03           6 E+03            -               T/St/
Te-133m (Vapor)................   -               1 E-06            -                -               6 E+04            -               /T/
Te-133m........................  3 E-06           2 E-06            -               1 E+05           1 E+05            -               T/ET/
Te-133 (Vapor).................   -               7 E-06            -                -               2 E+05            -               /T/
Te-133.........................  1 E-05           9 E-06            -               4 E+05           3 E+05            -               ET/ET/
Te-134 (Vapor).................   -               6 E-06            -                -               2 E+05            -               /St/
Te-134.........................  3 E-06           2 E-06            -               1 E+05           1 E+05            -               ET/ET/
I-120m (Methyl)................  4 E-06            -                -               1 E+05            -                -               T/ /
I-120m (Vapor).................   -               3 E-06            -                -               1 E+05            -               /St /
I-120m.........................  2 E-06            -                -               8 E+04            -                -               ET/ /
I-120 (Methyl).................  1 E-06            -                -               6 E+04            -                -               T/ /
I-120 (Vapor)..................   -               1 E-06            -                -               5 E+04            -               /T/
I-120..........................  2 E-06            -                -               1 E+05            -                -               E/ /
I-121 (Methyl).................  5 E-06            -                -               2 E+05            -                -               T/ /
I-121 (Vapor)..................   -               4 E-06            -                -               1 E+05            -               /T/
I-121..........................  8 E-06            -                -               3 E+05            -                -               T/ /
I-123 (Methyl).................  1 E-06            -                -               7 E+04            -                -               T/ /
I-123 (Vapor)..................   -               1 E-06            -                -               5 E+04            -               /T/
I-123..........................  2 E-06            -                -               1 E+05            -                -               T/ /
I-124 (Methyl).................  3 E-08            -                -               1 E+03            -                -               T/ /
I-124 (Vapor)..................   -               2 E-08            -                -               9 E+02            -               /T/
I-124..........................  4 E-08            -                -               1 E+03            -                -               T/ /
I-125 (Methyl).................  2 E-08            -                -               9 E+02            -                -               T/ /
I-125 (Vapor)..................   -               2 E-08            -                -               7 E+02            -               /T/
I-125..........................  3 E-08            -                -               1 E+03            -                -               T/ /
I-126 (Methyl).................  1 E-08            -                -               5 E+02            -                -               T/ /
I-126 (Vapor)..................   -               1 E-08            -                -               4 E+02            -               /T/
I-126..........................  2 E-08            -                -               7 E+02            -                -               T/ /

[[Page 572]]

 
I-128 (Methyl).................  3 E-05            -                -               1 E+06            -                -               T/ /
I-128 (Vapor)..................   -               8 E-06            -                -               3 E+05            -               /St/
I-128..........................  1 E-05            -                -               6 E+05            -                -               ET/ /
I-129 (Methyl).................  3 E-09            -                -               1 E+02            -                -               T/ /
I-129 (Vapor)..................   -               2 E-09            -                -               1 E+02            -               /T/
I-129..........................  5 E-09            -                -               2 E+02            -                -               T/ /
I-130 (Methyl).................  2 E-07            -                -               7 E+03            -                -               T/ /
I-130 (Vapor)..................   -               1 E-07            -                -               6 E+03            -               /T/
I-130..........................  3 E-07            -                -               1 E+04            -                -               T/ /
I-131 (Methyl).................  1 E-08            -                -               6 E+02            -                -               T/ /
I-131 (Vapor)..................   -               1 E-08            -                -               5 E+02            -               /T/
I-131..........................  2 E-08            -                -               9 E+02            -                -               T/ /
I-132m (Methyl)................  1 E-06            -                -               7 E+04            -                -               T/ /
I-132m (Vapor).................   -               1 E-06            -                -               6 E+04            -               /T/
I-132m.........................  3 E-06            -                -               1 E+05            -                -               T/ /
I-132 (Methyl).................  1 E-06            -                -               6 E+04            -                -               T/ /
I-132 (Vapor)..................   -               1 E-06            -                -               5 E+04            -               /T/
I-132..........................  2 E-06            -                -               7 E+04            -                -               T/ /
I-133 (Methyl).................  9 E-08            -                -               3 E+03            -                -               T/ /
I-133 (Vapor)..................   -               7 E-08            -                -               2 E+03            -               /T/
I-133..........................  1 E-07            -                -               5 E+03            -                -               T/ /
I-134 (Methyl).................  8 E-06            -                -               2 E+05            -                -               T/ /
I-134 (Vapor)..................   -               3 E-06            -                -               1 E+05            -               /St/
I-134..........................  3 E-06            -                -               1 E+05            -                -               ET/ /
I-135 (Methyl).................  4 E-07            -                -               1 E+04            -                -               T/ /
I-135 (Vapor)..................   -               3 E-07            -                -               1 E+04            -               /T/
I-135..........................  6 E-07            -                -               2 E+04            -                -               T/ /
Cs-125.........................  1 E-05            -                -               4 E+05            -                -               ET/ /
Cs-127.........................  4 E-06            -                -               1 E+05            -                -               ET/ /
Cs-129.........................  2 E-06            -                -               9 E+04            -                -               ET/ /
Cs-130.........................  1 E-05            -                -               6 E+05            -                -               ET/ /
Cs-131.........................  7 E-06            -                -               2 E+05            -                -               ET/ /
Cs-132.........................  9 E-07            -                -               3 E+04            -                -               ET/ /
Cs-134m........................  8 E-06            -                -               2 E+05            -                -               ET/ /
Cs-134.........................  5 E-08            -                -               2 E+03            -                -               St/ /
Cs-135m........................  8 E-06            -                -               2 E+05            -                -               ET/ /
Cs-135.........................  5 E-07            -                -               2 E+04            -                -               St/ /
Cs-136.........................  2 E-07            -                -               1 E+04            -                -               E/ /
Cs-137.........................  8 E-08            -                -               3 E+03            -                -               St/ /
Cs-138.........................  5 E-06            -                -               2 E+05            -                -               ET/ /
Ba-126.........................  4 E-06            -                -               1 E+05            -                -               ET/ /
Ba-128.........................  4 E-07            -                -               1 E+04            -                -               St/ /
Ba-131m........................  4 E-05            -                -               1 E+06            -                -               ET/ /
Ba-131.........................  1 E-06            -                -               4 E+04            -                -               ET/ /
Ba-133m........................  2 E-06            -                -               7 E+04            -                -               St/ /
Ba-133.........................  3 E-07            -                -               1 E+04            -                -               St/ /
Ba-135m........................  2 E-06            -                -               9 E+04            -                -               St/ /
Ba-139.........................  1 E-05            -                -               3 E+05            -                -               St/ /
Ba-140.........................  3 E-07            -                -               1 E+04            -                -               St/ /
Ba-141.........................  1 E-05            -                -               4 E+05            -                -               ET/ /
Ba-142.........................  9 E-06            -                -               3 E+05            -                -               ET/ /
La-131.........................  1 E-05           8 E-06            -               4 E+05           3 E+05            -               ET/ET/
La-132.........................  1 E-06           1 E-06            -               5 E+04           5 E+04            -               ET/ET/
La-135.........................  1 E-05           1 E-05            -               4 E+05           4 E+05            -               ET/ET/
La-137.........................  4 E-08           2 E-07            -               1 E+03           8 E+03            -               L/L/
La-138.........................  3 E-09           1 E-08            -               1 E+02           4 E+02            -               St/St/
La-140.........................  4 E-07           3 E-07            -               1 E+04           1 E+04            -               ET/St/
La-141.........................  5 E-06           2 E-06            -               1 E+05           9 E+04            -               St/St/
La-142.........................  2 E-06           2 E-06            -               9 E+04           8 E+04            -               ET/ET/
La-143.........................  1 E-05           1 E-05            -               6 E+05           4 E+05            -               ET/ET/
Ce-134.........................   -               3 E-07           3 E-07            -               1 E+04           1 E+04           /St/St
Ce-135.........................   -               5 E-07           5 E-07            -               2 E+04           2 E+04           /ET/ET
Ce-137m........................   -               1 E-06           9 E-07            -               3 E+04           3 E+04           /St/St
Ce-137.........................   -               1 E-05           1 E-05            -               7 E+05           7 E+05           /ET/ET
Ce-139.........................   -               4 E-07           4 E-07            -               1 E+04           1 E+04           /St/St
Ce-141.........................   -               2 E-07           1 E-07            -               7 E+03           6 E+03           /St/St
Ce-143.........................   -               5 E-07           5 E-07            -               2 E+04           2 E+04           /St/St
Ce-144.........................   -               2 E-08           1 E-08            -               9 E+02           7 E+02           /St/St
Pr-136.........................   -               1 E-05           1 E-05            -               3 E+05           3 E+05           /ET/ET
Pr-137.........................   -               9 E-06           9 E-06            -               3 E+05           3 E+05           /ET/ET

[[Page 573]]

 
Pr-138m........................   -               2 E-06           2 E-06            -               7 E+04           7 E+04           /ET/ET
Pr-139.........................   -               1 E-05           1 E-05            -               5 E+05           5 E+05           /ET/ET
Pr-142m........................   -               6 E-05           5 E-05            -               2 E+06           2 E+06           /St/St
Pr-142.........................   -               8 E-07           7 E-07            -               2 E+04           2 E+04           /St/St
Pr-143.........................   -               2 E-07           2 E-07            -               1 E+04           9 E+03           /St/St
Pr-144.........................   -               1 E-05           1 E-05            -               4 E+05           4 E+05           /ET/ET
Pr-145.........................   -               2 E-06           2 E-06            -               8 E+04           8 E+04           /St/St
Pr-147.........................   -               9 E-06           9 E-06            -               3 E+05           3 E+05           /ET/ET
Nd-136.........................   -               4 E-06           4 E-06            -               1 E+05           1 E+05           /ET/ET
Nd-138.........................   -               1 E-06           1 E-06            -               5 E+04           5 E+04           /St/St
Nd-139m........................   -               1 E-06           1 E-06            -               5 E+04           5 E+04           /ET/ET
Nd-139.........................   -               1 E-05           1 E-05            -               6 E+05           6 E+05           /ET/ET
Nd-141.........................   -               3 E-05           3 E-05            -               1 E+06           1 E+06           /ET/ET
Nd-147.........................   -               2 E-07           2 E-07            -               1 E+04           9 E+03           /St/St
Nd-149.........................   -               4 E-06           4 E-06            -               1 E+05           1 E+05           /ET/ET
Nd-151.........................   -               9 E-06           9 E-06            -               3 E+05           3 E+05           /ET/ET
Pm-141.........................   -               1 E-05           1 E-05            -               4 E+05           4 E+05           /ET/ET
Pm-143.........................   -               5 E-07           6 E-07            -               2 E+04           2 E+04           /St/St
Pm-144.........................   -               1 E-07           1 E-07            -               3 E+03           5 E+03           /St/St
Pm-145.........................   -               1 E-07           4 E-07            -               5 E+03           1 E+04           /BS/St
Pm-146.........................   -               4 E-08           6 E-08            -               1 E+03           2 E+03           /St/St
Pm-147.........................   -               1 E-07           1 E-07            -               4 E+03           6 E+03           /BS/St
Pm-148m........................   -               1 E-07           1 E-07            -               5 E+03           4 E+03           /St/St
Pm-148.........................   -               2 E-07           2 E-07            -               9 E+03           9 E+03           /St/St
Pm-149.........................   -               7 E-07           6 E-07            -               2 E+04           2 E+04           /St/St
Pm-150.........................   -               2 E-06           2 E-06            -               8 E+04           8 E+04           /ET/ET
Pm-151.........................   -               9 E-07           8 E-07            -               3 E+04           3 E+04           /St/St
Sm-141m........................   -               5 E-06            -                -               2 E+05            -               /ET/
Sm-141.........................   -               1 E-05            -                -               4 E+05            -               /ET/
Sm-142.........................   -               4 E-06            -                -               1 E+05            -               /ET/
Sm-145.........................   -               4 E-07            -                -               1 E+04            -               /BS/
Sm-146.........................   -               2 E-11            -                -               1 E+00            -               /BS/
Sm-147.........................   -               2 E-11            -                -               1 E+00            -               /BS/
Sm-151.........................   -               7 E-08            -                -               2 E+03            -               /BS/
Sm-153.........................   -               8 E-07            -                -               3 E+04            -               /St/
Sm-155.........................   -               1 E-05            -                -               3 E+05            -               /ET/
Sm-156.........................   -               2 E-06            -                -               7 E+04            -               /St/
Eu-145.........................   -               5 E-07            -                -               2 E+04            -               /ET/
Eu-146.........................   -               3 E-07            -                -               1 E+04            -               /ET/
Eu-147.........................   -               5 E-07            -                -               2 E+04            -               /St/
Eu-148.........................   -               2 E-07            -                -               9 E+03            -               /St/
Eu-149.........................   -               2 E-06            -                -               9 E+04            -               /St/
Eu-150 (12 h)..................   -               2 E-06            -                -               7 E+04            -               /St/
Eu-150 (34 yr).................   -               1 E-08            -                -               6 E+02            -               /St/
Eu-152m........................   -               1 E-06            -                -               6 E+04            -               /St/
Eu-152.........................   -               2 E-08            -                -               7 E+02            -               /St/
Eu-154.........................   -               1 E-08            -                -               5 E+02            -               /St/
Eu-155.........................   -               7 E-08            -                -               2 E+03            -               /BS/
Eu-156.........................   -               1 E-07            -                -               6 E+03            -               /St/
Eu-157.........................   -               1 E-06            -                -               4 E+04            -               /St/
Eu-158.........................   -               5 E-6             -                -               1 E+05            -               /ET/
Gd-145.........................  9 E-06           7 E-06            -               3 E+05           2 E+05            -               ET/ET/
Gd-146.........................  1 E-07           1 E-07            -               4 E+03           4 E+03            -               St/St/
Gd-147.........................  7 E-07           6 E-07            -               2 E+04           2 E+04            -               ET/ET/
Gd-148.........................  5 E-12           2 E-11            -               2 E-01           9 E-01            -               BS/BS/
Gd-149.........................  1 E-06           7 E-07            -               4 E+04           2 E+04            -               St/St/
Gd-151.........................  2 E-07           8 E-07            -               9 E+03           3 E+04            -               BS/St/
Gd-152.........................  7 E-12           3 E-11            -               2 E-01           1 E+00            -               BS/BS/
Gd-153.........................  9 E-08           4 E-07            -               3 E+03           1 E+04            -               BS/St/
Gd-159.........................  3 E-06           1 E-06            -               1 E+05           5 E+04            -               St/St/
Tb-147.........................   -               2 E-06            -                -               1 E+05            -               /ET/
Tb-149.........................   -               1 E-07            -                -               6 E+03            -               /St/
Tb-150.........................   -               2 E-06            -                -               8 E+04            -               /ET/
Tb-151.........................   -               1 E-06            -                -               4 E+04            -               /ET/
Tb-153.........................   -               2 E-06            -                -               8 E+04            -               /St/
Tb-154.........................   -               5 E-07            -                -               2 E+04            -               /ET/
Tb-155.........................   -               2 E-06            -                -               8 E+04            -               /St/
Tb-156m (24 h).................   -               2 E-06            -                -               9 E+04            -               /St/
Tb-156m (5 h)..................   -               4 E-06            -                -               1 E+05            -               /St/
Tb-156.........................   -               4 E-07            -                -               1 E+04            -               /E/
Tb-157.........................   -               2 E-07            -                -               8 E+03            -               /BS/

[[Page 574]]

 
Tb-158.........................   -               1 E-08            -                -               6 E+02            -               /BS/
Tb-160.........................   -               1 E-07            -                -               3 E+03            -               /St/
Tb-161.........................   -               4 E-07            -                -               1 E+04            -               /St/
Dy-155.........................   -               2 E-06            -                -               1 E+05            -               /ET/
Dy-157.........................   -               5 E-06            -                -               1 E+05            -               /ET/
Dy-159.........................   -               2 E-06            -                -               8 E+04            -               /BS/
Dy-165.........................   -               6 E-06            -                -               2 E+05            -               /ET/
Dy-166.........................   -               3 E-07            -                -               1 E+04            -               /St/
Ho-155.........................   -               1 E-05            -                -               4 E+05            -               /ET/
Ho-157.........................   -               2 E-05            -                -               1 E+06            -               /ET/
Ho-159.........................   -               2 E-05            -                -               9 E+05            -               /ET/
Ho-161.........................   -               3 E-05            -                -               1 E+06            -               /ET/
Ho-162m........................   -               9 E-06            -                -               3 E+05            -               /ET/
Ho-162.........................   -               5 E-05            -                -               2 E+06            -               /ET/
Ho-164m........................   -               3 E-05            -                -               1 E+06            -               /St/
Ho-164.........................   -               2 E-05            -                -               8 E+05            -               /ET/
Ho-166m........................   -               7 E-09            -                -               2 E+02            -               /St/
Ho-166.........................   -               6 E-07            -                -               2 E+04            -               /St/
Ho-167.........................   -               4 E-06            -                -               1 E+05            -               /ET/
Er-161.........................   -               3 E-06            -                -               1 E+05            -               /ET/
Er-165.........................   -               2 E-05            -                -               1 E+06            -               /ET/
Er-169.........................   -               6 E-07            -                -               2 E+04            -               /St/
Er-171.........................   -               1 E-06            -                -               6 E+04            -               /St/
Er-172.........................   -               4 E-07            -                -               1 E+04            -               /St/
Tm-162.........................   -               9 E-06            -                -               3E+05             -               /ET/
Tm-166.........................   -               1 E-06            -                -               4 E+04            -               /ET/
Tm-167.........................   -               5 E-07            -                -               2 E+04            -               /St/
Tm-170.........................   -               1 E-07            -                -               4 E+03            -               /St/
Tm-171.........................   -               2 E-07            -                -               9 E+03            -               /BS/
Tm-172.........................   -               4 E-07            -                -               1 E+04            -               /St/
Tm-173.........................   -               2 E-06            -                -               8 E+04            -               /St/
Tm-175.........................   -               8 E-06            -                -               2 E+05            -               /ET/
Yb-162.........................   -               1 E-05           1 E-05            -               5 E+05           5 E+05           /ET/ET
Yb-166.........................   -               6 E-07           5 E-07            -               2 E+04           2 E+04           /St/St
Yb-167.........................   -               3 E-05           3 E-05            -               1 E+06           1 E+06           /ET/ET
Yb-169.........................   -               2 E-07           2 E-07            -               9 E+03           8 E+03           /St/St
Yb-175.........................   -               8 E-07           8 E-07            -               3 E+04           2 E+04           /St/St
Yb-177.........................   -               6 E-06           5 E-06            -               2 E+05           2 E+05           /ET/ET
Yb-178.........................   -               5 E-06           5 E-06            -               1 E+05           1 E+05           /ET/E
Lu-169.........................   -               9 E-07           9 E-07            -               3 E+04           3 E+04           /ET/ET
Lu-170.........................   -               4 E-07           4 E-07            -               1 E+04           1 E+04           /ET/ET
Lu-171.........................   -               6 E-07           6 E-07            -               2 E+04           2 E+04           /St/St
Lu-172.........................   -               3 E-07           3 E-07            -               1 E+04           1 E+04           /St/St
Lu-173.........................   -               2 E-07           4 E-07            -               8 E+03           1 E+04           /BS/St
Lu-174m........................   -               2 E-07           2 E-07            -               7 E+03           8 E+03           /BS/St
Lu-174.........................   -               9 E-08           2 E-07            -               3 E+03           8 E+03           /BS/St
Lu-176m........................   -               3 E-06           3 E-06            -               1 E+05           1 E+05           /St/St
Lu-176.........................   -               3 E-09           1 E-08            -               1 E+02           6 E+02           /BS/St
Lu-177m........................   -               5 E-08           4 E-08            -               2 E+03           1 E+03           /St/St
Lu-177.........................   -               5 E-07           5 E-07            -               2 E+04           1 E+04           /St/St
Lu-178m........................   -               4 E-06           4 E-06            -               1 E+05           1 E+05           /ET/ET
Lu-178.........................   -               8 E-06           8 E-06            -               3 E+05           3 E+05           /ET/ET
Lu-179.........................   -               3 E-06           3 E-06            -               1 E+05           1 E+05           /St/St
Hf-170.........................  1 E-06           1 E-06            -               4 E+04           4 E+04            -               ET/ET/
Hf-172.........................  6 E-09           3 E-08            -               2 E+02           1 E+03            -               BS/BS/
Hf-173.........................  2 E-06           2 E-06            -               9 E+04           8 E+04            -               ET/ET/
Hf-175.........................  5 E-07           6 E-07            -               2 E+04           2 E+04            -               BS/St/
Hf-177m........................  2 E-06           1 E-06            -               9 E+04           6 E+04            -               ET/ET/
Hf-178m........................  8 E-10           4 E-09            -               3 E+01           1 E+02            -               BS/BS/
Hf-179m........................  2 E-07           1 E-07            -               8 E+03           6 E+03            -               BS/St/
Hf-180m........................  2 E-06           1 E-06            -               7 E+04           6 E+04            -               ET/ET/
Hf-181.........................  1 E-07           1 E-07            -               4 E+03           5 E+03            -               BS/St/
Hf-182m........................  5 E-06           4 E-06            -               2 E+05           1 E+05            -               ET/ET/
Hf-182.........................  5 E-10           2 E-09            -               2 E+01           9 E+01            -               BS/BS/
Hf-183.........................  6 E-06           4 E-06            -               2 E+05           1 E+05            -               ET/ET/
Hf-184.........................  1 E-06           1 E-06            -               5 E+04           4 E+04            -               ET/St/
Ta-172.........................   -               5 E-06           5 E-06            -               1 E+05           1 E+05           /ET/ET
Ta-173.........................   -               3 E-06           3 E-06            -               1 E+05           1 E+05           /E/E
Ta-174.........................   -               5 E-06           5 E-06            -               2 E+05           2 E+05           /ET/ET
Ta-175.........................   -               1 E-06           1 E-06            -               6 E+04           6 E+04           /ET/ET
Ta-176.........................   -               1 E-06           1 E-06            -               3 E+04           3 E+04           /ET/ET

[[Page 575]]

 
Ta-177.........................   -               4 E-06           4 E-06            -               1 E+05           1 E+05           /St/St
Ta-178.........................   -               3 E-06           3 E-06            -               1 E+05           1 E+05           /ET/ET
Ta-179.........................   -               4 E-06           1 E-06            -               1 E+05           7 E+04           /St/St
Ta-180m........................   -               9 E-06           9 E-06            -               3 E+05           3 E+05           /St/St
Ta-180.........................   -               1 E-07           4 E-08            -               4 E+03           1 E+03           /St/St
Ta-182m........................   -               6 E-06           6 E-06            -               2 E+05           2 E+05           /ET/ET
Ta-182.........................   -               9 E-08           7 E-08            -               3 E+03           2 E+03           /St/St
Ta-183.........................   -               3 E-07           2 E-07            -               1 E+04           1 E+04           /St/St
Ta-184.........................   -               8 E-07           8 E-07            -               3 E+04           3 E+04           /ET/ET
Ta-185.........................   -               5 E-06           5 E-06            -               2 E+05           1 E+05           /ET/ET
Ta-186.........................   -               7 E-06           7 E-06            -               2 E+05           2 E+05           /ET/ET
W-176..........................  3 E-06            -                -               1 E+05            -                -               ET/ /
W-177..........................  5 E-06            -                -               2 E+05            -                -               ET/ /
W-178..........................  3 E-06            -                -               1 E+05            -                -               ET/ /
W-179..........................  1 E-04            -                -               5 E+06            -                -               ET/ /
W-181..........................  1 E-05            -                -               4 E+05            -                -               ET/ /
W-185..........................  2 E-06            -                -               9 E+04            -                -               St/ /
W-187..........................  1 E-06            -                -               5 E+04            -                -               ET/ /
W-188..........................  6 E-07            -                -               2 E+04            -                -               St/ /
Re-177.........................  1 E-05           1 E-05            -               6 E+05           4 E+05            -               ET/ET/
Re-178.........................  1 E-05           1 E-05            -               5 E+05           3 E+05            -               ET/ET/
Re-181.........................  1 E-06           1 E-06            -               5 E+04           4 E+04            -               ET/ET/
Re-182 (64 h)..................  4 E-07           3 E-07            -               1 E+04           1 E+04            -               ET/St/
Re-182 (12 h)..................  1 E-06           1 E-06            -               4 E+04           4 E+04            -               ET/ET/
Re-184m........................  6 E-07           1 E-07            -               2 E+04           4 E+03            -               St/St/
Re-184.........................  7 E-07           3 E-07            -               2 E+04           1 E+04            -               ET/St/
Re-186m........................  4 E-7            7 E-08            -               1 E+04           2 E+03            -               St/St/
Re-186.........................  7 E-07           4 E-07            -               2 E+04           1 E+04            -               St/St/
Re-187.........................  2 E-04           1 E-04            -               8 E+06           4 E+06            -               St/St/
Re-188m........................  3 E-05           2 E-05            -               1 E+06           1 E+06            -               St/St/
Re-188.........................  8 E-07           7 E-07            -               3 E+04           2 E+04            -               St/St/
Re-189.........................  1 E-06           9 E-07            -               4 E+04           3 E+04            -               St/St/
Os-180.........................  1 E-05           1 E-05           1 E-05           5 E+05           3 E+05           3 E+05           ET/ET/ET
Os-181.........................  3 E-06           3 E-06           3 E-06           1 E+05           1 E+05           1 E+05           ET/ET/ET
Os-182.........................  1 E-06           9 E-07           9 E-07           3 E+04           3 E+04           3 E+04           ET/ET/ET
Os-185.........................  4 E-07           5 E-07           5 E-07           1 E+04           2 E+04           1 E+04           St/St/St
Os-189m........................  1 E-04           7 E-05           7 E-05           4 E+06           2 E+06           2 E+06           St/St/St
Os-191m........................  1 E-05           4 E-06           4 E-06           5 E+05           1 E+05           1 E+05           St/St/St
Os-191.........................  1 E-06           4 E-07           3 E-07           5 E+04           1 E+04           1 E+04           St/St/St
Os-193.........................  2 E-06           8 E-07           8 E-07           7 E+04           3 E+04           3 E+04           St/St/St
Os-194.........................  4 E-08           4 E-08           1 E-08           1 E+03           1 E+03           4 E+02           St/St/St
Ir-182.........................  9 E-06           7 E-06           7 E-06           3 E+05           2 E+05           2 E+05           ET/ET/ET
Ir-184.........................  1 E-06           1 E-06           1 E-06           7 E+04           6 E+04           7 E+04           ET/ET/ET
Ir-185.........................  2 E-06           1 E-06           1 E-06           7 E+04           7 E+04           7 E+04           ET/ET/ET
Ir-186 (16 h)..................  8 E-07           7 E-07           7 E-07           2 E+04           2 E+04           2 E+04           ET/ET/ET
Ir-186 (2 h)...................  5 E-06           4 E-06           4 E-06           1 E+05           1 E+05           1 E+05           ET/ET/ET
Ir-187.........................  4 E-06           3 E-06           3 E-06           1 E+05           1 E+05           1 E+05           ET/ET/ET
Ir-188.........................  6 E-07           6 E-07           6 E-07           2 E+04           2 E+04           2 E+04           ET/ET/ET
Ir-189.........................  3 E-06           1 E-06           1 E-06           1 E+05           5 E+04           4 E+04           St/St/St
Ir-190m (3 h)..................  2 E-06           2 E-06           2 E-06           8 E+04           8 E+04           7 E+04           ET/ET/ET
Ir-190m (1 h)..................  9 E-05           5 E-05           5 E-05           3 E+06           2 E+06           1 E+06           ET/St/St
Ir-190.........................  4 E-07           2 E-07           2 E-07           1 E+04           9 E+03           8 E+03           ET/St/St
Ir-192m........................  1 E-07           1 E-07           2 E-08           3 E+03           6 E+03           1 E+03           St/St/St
Ir-192.........................  2 E-07           1 E-07           1 E-07           9 E+03           5 E+03           4 E+03           St/St/St
Ir-194m........................  8 E-08           8 E-08           6 E-08           3 E+03           3 E+03           2 E+03           St/St/St
Ir-194.........................  1 E-06           7 E-07           7 E-07           5 E+04           2 E+04           2 E+04           St/St/St
Ir-195m........................  2 E-06           2 E-06           2 E-06           9 E+04           7 E+04           7 E+04           ET/ET/ET
Ir-195.........................  7 E-06           5 E-06           4 E-06           2 E+05           1 E+05           1 E+05           ET/ET/ET
Pt-186.........................  3 E-06            -                -               1 E+05            -                -               ET/ /
Pt-188.........................  8 E-07            -                -               3 E+04            -                -               E/ /
Pt-189.........................  3 E-06            -                -               1 E+05            -                -               ET/ /
Pt-191.........................  1 E-06            -                -               7 E+04            -                -               ET/ /
Pt-193m........................  2 E-06            -                -               8 E+04            -                -               ET/ /
Pt-193.........................  2 E-05            -                -               7 E+05            -                -               ET/ /
Pt-195m........................  1 E-06            -                -               5 E+04            -                -               ET/ /
Pt-197m........................  7 E-06            -                -               2 E+05            -                -               ET/ /
Pt-197.........................  3 E-06            -                -               1 E+05            -                -               ET/ /
Pt-199.........................  1 E-05            -                -               4 E+05            -                -               ET/ /
Pt-200.........................  1 E-06            -                -               5 E+04            -                -               St/ /
Au-193.........................  4 E-06           3 E-06           3 E-06           1 E+05           1 E+05           1 E+05           ET/E/St
Au-194.........................  9 E-07           9 E-07           9 E-07           3 E+04           3 E+04           3 E+04           ET/ET/ET

[[Page 576]]

 
Au-195.........................  3 E-06           7 E-07           4 E-07           1 E+05           2 E+04           1 E+04           ET/St/St
Au-198m........................  6 E-07           2 E-07           2 E-07           2 E+04           1 E+04           1 E+04           ET/St/St
Au-198.........................  1 E-06           5 E-07           5 E-07           4 E+04           2 E+04           1 E+04           ET/St/St
Au-199.........................  2 E-06           8 E-07           7 E-07           7 E+04           3 E+04           2 E+04           ET/St/St
Au-200m........................  5 E-07           4 E-07           4 E-07           1 E+04           1 E+04           1 E+04           ET/ET/ET
Au-200.........................  1 E-05           7 E-06           7 E-06           4 E+05           2 E+05           2 E+05           ET/ET/ET
Au-201.........................  1 E-05           1 E-05           9 E-06           5 E+05           3 E+05           3 E+05           ET/ET/ET
Hg-193m (Org)..................  1 E-06            -                -               4 E+04            -                -               ET/ /
Hg-193m........................  1 E-06           1 E-06            -               4 E+04           4 E+04            -               ET/ET/
Hg-193m (Vapor)................   -               1 E-07            -                -               6 E+03            -               /St/
Hg-193 (Org)...................  5 E-06            -                -               1 E+05            -                -               ET/ /
Hg-193.........................  5 E-06           4 E-06            -               1 E+05           1 E+05            -               ET/ET/
Hg-193 (Vapor).................   -               5 E-07            -                -               1 E+04            -               /St/
Hg-194 (Org)...................  2 E-08            -                -               1 E+03            -                -               St/ /
Hg-194.........................  3 E-08           1 E-07            -               1 E+03           3 E+03            -               St/St/
Hg-194 (Vapor).................   -               1 E-08            -                -               5 E+02            -               /St/
Hg-195m (Org)..................  1 E-06            -                -               5 E+04            -                -               ET/ /
Hg-195m........................  1 E-06           8 E-07            -               5 E+04           3 E+04            -               ET/St/
Hg-195m (Vapor)................   -               6 E-08            -                -               2 E+03            -               /St/
Hg-195 (Org)...................  6 E-06            -                -               2 E+05            -                -               ET/ /
Hg-195.........................  6 E-06           6 E-06            -               2 E+05           2 E+05            -               ET/ET/
Hg-195 (Vapor).................   -               4 E-07            -                -               1 E+04            -               /St/
Hg-197m (Org)..................  1 E-06            -                -               5 E+04            -                -               ET/ /
Hg-197m........................  1 E-06           8 E-07            -               5 E+04           3 E+04            -               ET/St/
Hg-197m (Vapor)................   -               9 E-08            -                -               3 E+03            -               /St/
Hg-197 (Org)...................  4 E-06            -                -               1 E+05            -                -               ET/ /
Hg-197.........................  4 E-06           2 E-06            -               1 E+05           7 E+04            -               ET/St/
Hg-197 (Vapor).................   -               1 E-07            -                -               4 E+03            -               /St/
Hg-199m (Org)..................  8 E-06            -                -               3 E+05            -                -               ET/ /
Hg-199m........................  8 E-06           5 E-06            -               3 E+05           1 E+05            -               ET/ET/
Hg-199m (Vapor)................   -               3 E-06            -                -               1 E+05            -               /St/
Hg-203 (Org)...................  7 E-07            -                -               2 E+04            -                -               St/ /
Hg-203.........................  9 E-07           2 E-07            -               3 E+04           1 E+04            -               St/St/
Hg-203 (Vapor).................   -               8 E-08            -                -               2 E+03            -               /St/
Tl-194m........................  5 E-06            -                -               2 E+05            -                -               ET/ /
Tl-194.........................  2 E-05            -                -               8 E+05            -                -               ET/ /
Tl-195.........................  6 E-06            -                -               2 E+05            -                -               ET/ /
Tl-197.........................  8 E-06            -                -               2 E+05            -                -               ET/ /
Tl-198m........................  2 E-06            -                -               9 E+04            -                -               ET/ /
Tl-198.........................  1 E-06            -                -               5 E+04            -                -               ET/ /
Tl-199.........................  5 E-06            -                -               2 E+05            -                -               ET/ /
Tl-200.........................  8 E-07            -                -               3 E+04            -                -               ET/ /
Tl-201.........................  4 E-06            -                -               1 E+05            -                -               ET/ /
Tl-202.........................  1 E-06            -                -               5 E+04            -                -               ET/ /
Tl-204.........................  9 E-07            -                -               3 E+04            -                -               St/ /
Pb-195m........................  7 E-06            -                -               2 E+05            -                -               ET/ /
Pb-198.........................  2 E-06            -                -               9 E+04            -                -               ET/ /
Pb-199.........................  4 E-06            -                -               1 E+05            -                -               ET/ /
Pb-200.........................  1 E-06            -                -               4 E+04            -                -               ET/ /
Pb-201.........................  2 E-06            -                -               7 E+04            -                -               ET/ /
Pb-202m........................  1 E-06            -                -               6 E+04            -                -               ET/ /
Pb-202.........................  4 E-08            -                -               1 E+03            -                -               St/ /
Pb-203.........................  2 E-06            -                -               7 E+04            -                -               ET/ /
Pb-205.........................  9 E-07            -                -               3 E+04            -                -               BS/ /
Pb-209.........................  9 E-06            -                -               3 E+05            -                -               ET/ /
Pb-210.........................  1 E-10            -                -               5 E+00            -                -               BS/ /
Pb-211.........................  4 E-08            -                -               1 E+03            -                -               ET/ /
Pb-212.........................  5 E-09            -                -               2 E+02            -                -               ET/ /
Pb-214.........................  4 E-08            -                -               1 E+03            -                -               ET/ /
Bi-200.........................  5 E-06           4 E-06            -               2 E+05           1 E+05            -               ET/ET/
Bi-201.........................  3 E-06           2 E-06            -               1 E+05           1 E+05            -               ET/ET/
Bi-202.........................  2 E-06           2 E-06            -               9 E+04           9 E+04            -               ET/ET/
Bi-203.........................  7 E-07           7 E-07            -               2 E+04           2 E+04            -               ET/ET/
Bi-205.........................  4 E-07           4 E-07            -               1 E+04           1 E+04            -               ET/ET/
Bi-206.........................  2 E-07           2 E-07            -               9 E+03           8 E+03            -               ET/ET/
Bi-207.........................  4 E-07           1 E-07            -               1 E+04           6 E+03            -               ET/St/
Bi-210m........................  3 E-09           2 E-10            -               1 E+02           9 E+00            -               K/St/

[[Page 577]]

 
Bi-210.........................  1 E-07           9 E-09            -               6 E+03           3 E+02            -               K/St/
Bi-212.........................  1 E-08           8 E-09            -               4 E+02           3 E+02            -               ET/ET/
Bi-213.........................  1 E-08           7 E-09            -               4 E+02           2 E+02            -               ET/ET/
Bi-214.........................  1 E-08           1 E-08            -               6 E+02           4 E+02            -               ET/ET/
Po-203.........................  5 E-06           4 E-06            -               1 E+05           1 E+05            -               ET/ET/
Po-205.........................  4 E-06           3 E-06            -               1 E+05           1 E+05            -               ET/ET/
Po-207.........................  1 E-06           1 E-06            -               7 E+04           6 E+04            -               ET/ET/
Po-210.........................  7 E-10           2 E-10            -               2 E+01           9 E+00            -               K/St/
At-207.........................  1 E-06           2 E-07            -               4 E+04           1 E+04            -               St/St/
At-211.........................  7 E-09           5 E-09            -               2 E+02           1 E+02            -               ET/St/
Rn-220 \5\.....................  1 E-08            -                -               6 E+02            -                -                -
Rn-222 \5\.....................  8 E-08            -                -               3 E+03            -                -                -
Fr-222.........................  1 E-08            -                -               3 E+02            -                -               ET/ /
Fr-223.........................  4 E-07            -                -               1 E+04            -                -               St/ /
Ra-223.........................   -               9 E-11            -                -               3 E+00            -               /St/
Ra-224.........................   -               2 E-10            -                -               8 E+00            -               /St/
Ra-225.........................   -               1 E-10            -                -               4 E+00            -               /St/
Ra-226.........................   -               2 E-10            -                -               9 E+00            -               /St/
Ra-227.........................   -               8 E-07            -                -               3 E+04            -               /BS/
Ra-228.........................   -               1 E-10            -                -               5 E+00            -               /BS/
Ac-224.........................  1 E-08           6 E-09           5 E-09           6 E+02           2 E+02           2 E+02           BS/St/St
Ac-225.........................  2 E-10           9 E-11           8 E-11           7 E+00           3 E+00           3 E+00           BS/St/St
Ac-226.........................  1 E-09           6 E-10           5 E-10           4 E+01           2 E+01           2 E+01           ET/St/St
Ac-227.........................  2 E-13           1 E-12           1 E-11           1 E-02           5 E-02           4 E-01           BS/BS/St
Ac-228.........................  6 E-09           3 E-08           4 E-08           2 E+02           1 E+03           1 E+03           BS/BS/St
Th-226.........................   -               4 E-09           4 E-09            -               1 E+02           1 E+02           /ET/ET
Th-227.........................   -               9 E-11           7 E-11            -               3 E+00           2 E+00           /St/St
Th-228.........................   -               2 E-11           2 E-11            -               7 E-01           8 E-01           /BS/St
Th-229.........................   -               2 E-12           1 E-11            -               7 E-02           4 E-01           /BS/St
Th-230.........................   -               3 E-12           4 E-11            -               1 E-01           1 E+00           /BS/BS
Th-231.........................   -               1 E-06           1 E-06            -               5 E+04           5 E+04           /St/St
Th-232.........................   -               3 E-12           4 E-11            -               1 E-01           1 E+00           /BS/BS
Th-234.........................   -               1 E-07           9 E-08            -               3 E+03           3 E+03           /St/St
Pa-227.........................   -               4 E-09           4 E-09            -               1 E+02           1 E+02           /ET/ET
Pa-228.........................   -               1 E-08           1 E-08            -               3 E+02           4 E+02           /BS/St
Pa-230.........................   -               1 E-09           9 E-10            -               4 E+01           3 E+01           /St/St
Pa-231.........................   -               1 E-12           1 E-11            -               4 E-02           4 E-01           /BS/BS
Pa-232.........................   -               1 E-08           1 E-07            -               6 E+02           7 E+03           /BS/BS
Pa-233.........................   -               2 E-07           1 E-07            -               7 E+03           6 E+03           /St/St
Pa-234.........................   -               7 E-07           7 E-07            -               2 E+04           2 E+04           /ET/ET
U-230..........................  6 E-10           5 E-11           4 E-11           2 E+01           2 E+00           1 E+00           K/St/St
U-231..........................  2 E-06           1 E-06           1 E-06           8 E+04           4 E+04           4 E+04           ET/St/St
U-232..........................  5 E-11           1 E-10           2 E-11           2 E+00           4 E+00           7 E-01           BS/St/ET
U-233..........................  4 E-10           2 E-10           7 E-11           1 E+01           9 E+00           2 E+00           BS/St/ET
U-234..........................  5 E-10           2 E-10           7 E-11           1 E+01           9 E+00           2 E+00           BS/St/ET
U-235..........................  5 E-10           3 E-10           8 E-11           1 E+01           1 E+01           3 E+00           BS/St/ET
U-236..........................  5 E-10           2 E-10           7 E-11           1 E+01           1 E+01           2 E+00           BS/St/ET
U-237..........................  1 E-06           3 E-07           3 E-07           4 E+04           1 E+04           1 E+04           ET/St/St
U-238..........................  5 E-10           3 E-10           8 E-11           2 E+01           1 E+01           3 E+00           BS/St/ET
U-239..........................  1 E-05           9 E-06           9 E-06           5 E+05           3 E+05           3 E+05           ET/ET/ET
U-240..........................  1 E-06           7 E-07           6 E-07           5 E+04           2 E+04           2 E+04           ET/St/St
Np-232.........................   -               3 E-06            -                -               1 E+05            -               /BS/
Np-233.........................   -               7 E-05            -                -               2 E+06            -               /ET/
Np-234.........................   -               5 E-07            -                -               2 E+04            -               /ET/
Np-235.........................   -               1 E-06            -                -               4 E+04            -               /BS/
Np-236 (1 E+05 yr).............   -               4 E-11            -                -               1 E+00            -               /BS/
Np-236 (22 h)..................   -               5 E-08            -                -               1 E+03            -               /BS/
Np-237.........................   -               8 E-12            -                -               3 E-01            -               /BS/
Np-238.........................   -               1 E-07            -                -               4 E+03            -               /BS/
Np-239.........................   -               5 E-07            -                -               1 E+04            -               /St/
Np-240.........................   -               2 E-06            -                -               8 E+04            -               /ET/
Pu-234.........................   -               3 E-08           3 E-08            -               1 E+03           1 E+03           /St/St
Pu-235.........................   -               9 E-05           8 E-05            -               3 E+06           3 E+06           /ET/ET
Pu-236.........................   -               1 E-11           7 E-11            -               6 E-01           2 E+00           /BS/St
Pu-237.........................   -               1 E-06           1 E-06            -               7 E+04           6 E+04           /St/St
Pu-238.........................   -               6 E-12           5 E-11            -               2 E-01           1 E+00           /BS/St
Pu-239.........................   -               5 E-12           6 E-11            -               2 E-01           2 E+00           /BS/BS
Pu-240.........................   -               5 E-12           6 E-11            -               2 E-01           2 E+00           /BS/BS
Pu-241.........................   -               2 E-10           2 E-09            -               1 E+01           1 E+02           /BS/BS
Pu-242.........................   -               5 E-12           6 E-11            -               2 E-01           2 E+00           /BS/BS

[[Page 578]]

 
Pu-243.........................   -               5 E-06           5 E-06            -               1 E+05           1 E+05           /E/E
Pu-244.........................   -               5 E-12           6 E-11            -               2 E-01           2 E+00           /BS/BS
Pu-245.........................   -               9 E-07           8 E-07            -               3 E+04           3 E+04           /St/St
Pu-246.........................   -               8 E-08           8 E-08            -               3 E+03           2 E+03           /St/St
Am-237.........................   -               8 E-06            -                -               3 E+05            -               /ET/
Am-238.........................   -               2 E-06            -                -               9 E+04            -               /BS/
Am-239.........................   -               1 E-06            -                -               6 E+04            -               /ET/
Am-240.........................   -               7 E-07            -                -               2 E+04            -               /ET/
Am-241.........................   -               5 E-12            -                -               1 E-01            -               /BS/
Am-242m........................   -               5 E-12            -                -               1 E-01            -               /BS/
Am-242.........................   -               4 E-08            -                -               1 E+03            -               /St/
Am-243.........................   -               5 E-12            -                -               1 E-01            -               /BS/
Am-244m........................   -               3 E-06            -                -               1 E+05            -               /BS/
Am-244.........................   -               1 E-07            -                -               5 E+03            -               /BS/
Am-245.........................   -               5 E-06            -                -               2 E+05            -               /ET/
Am-246m........................   -               6 E-06            -                -               2 E+05            -               /ET/
Am-246.........................   -               2 E-06            -                -               9 E+04            -               /ET/
Cm-238.........................   -               1 E-07            -                -               4 E+03            -               /St/
Cm-240.........................   -               2 E-10            -                -               7 E+00            -               /St/
Cm-241.........................   -               2 E-08            -                -               8 E+02            -               /St/
Cm-242.........................   -               1 E-10            -                -               5 E+00            -               /St/
Cm-243.........................   -               7 E-12            -                -               2 E-01            -               /BS/
Cm-244.........................   -               9 E-12            -                -               3 E-01            -               /BS/
Cm-245.........................   -               5 E-12            -                -               1 E-01            -               /BS/
Cm-246.........................   -               5 E-12            -                -               1 E-01            -               /BS/
Cm-247.........................   -               5 E-12            -                -               2 E-01            -               /BS/
Cm-248.........................   -               1 E-12            -                -               5 E-02            -               /BS/
Cm-249.........................   -               8 E-06            -                -               3 E+05            -               /ET/
Cm-250.........................   -               2 E-13            -                -               8 E-03            -               /BS/
Bk-245.........................   -               3 E-07            -                -               1 E+04            -               /St/
Bk-246.........................   -               8 E-07            -                -               3 E+04            -               /ET/
Bk-247.........................   -               3 E-12            -                -               1 E-01            -               /BS/
Bk-249.........................   -               1 E-09            -                -               5 E+01            -               /BS/
Bk-250.........................   -               2 E-07            -                -               9 E+03            -               /BS/
Cf-244.........................   -               1 E-08            -                -               5 E+02            -               /ET/
Cf-246.........................   -               1 E-09            -                -               5 E+01            -               /St/
Cf-248.........................   -               5 E-11            -                -               2 E+00            -               /BS/
Cf-249.........................   -               3 E-12            -                -               1 E-01            -               /BS/
Cf-250.........................   -               7 E-12            -                -               2 E-01            -               /BS/
Cf-251.........................   -               3 E-12            -                -               1 E-01            -               /BS/
Cf-252.........................   -               1 E-11            -                -               6 E-01            -               /BS/
Cf-253.........................   -               5 E-10            -                -               2 E+01            -               /St/
Cf-254.........................   -               2 E-11            -                -               8 E-01            -               /BS/
Es-250.........................   -               4 E-07            -                -               1 E+04            -               /BS/
Es-251.........................   -               3 E-07            -                -               1 E+04            -               /St/
Es-253.........................   -               2 E-10            -                -               9 E+00            -               /St/
Es-254m........................   -               1 E-09            -                -               5 E+01            -               /St/
Es-254.........................   -               6 E-11            -                -               2 E+00            -               /BS/
Fm-252.........................   -               2 E-09            -                -               8 E+01            -               /St/
Fm-253.........................   -               1 E-09            -                -               6 E+01            -               /St/
Fm-254.........................   -               6 E-09            -                -               2 E+02            -               /ET/
Fm-255.........................   -               2 E-09            -                -               8 E+01            -               /St/
Fm-257.........................   -               1 E-10            -                -               4 E+00            -               /St/
Md-257.........................   -               2 E-08            -                -               1 E+03            -               /St/
Md-258.........................   -               1 E-10            -                -               4 E+00            -               /St/
--------------------------------------------------------------------------------------------------------------------------------------------------------

                        Footnotes for Appendix A

    \1\ A determination of whether the DACs are controlled by stochastic 
(St) or deterministic (organ or tissue) dose, or if they both give the 
same result (E), for each absorption type, is given in this column. The 
key to the organ notation for deterministic dose is: BS = Bone surface, 
ET = Extrathoracic, K = Kidney, L = Liver, and T = Thyroid. A blank 
indicates that no calculations were performed for the absorption type 
shown.
    \2\ The ICRP identifies these materials as soluble or reactive gases 
and vapors or highly soluble or reactive gases and vapors. For tritiated 
water, the inhalation DAC values allow for an additional 50% absorption 
through the skin, as described in ICRP Publication No. 68, Dose 
Coefficients for Intakes of Radionuclides by Workers. For elemental

[[Page 579]]

tritium, the DAC values include a factor that irradiation from gas 
within the lungs might increase the dose by 20%.
    \3\ A dash indicates no values given for this data category.
    \4\ DAC values derived using hafnium tritide particle and are based 
on ``observed activity'' (i.e, only radiation emitted from the particle 
is considered). DAC values derived using methodology found in 
Radiological Control Programs for Special Tritium Compounds, DOE-HDBK-
1184-2004.
    \5\ These values are appropriate for protection from radon combined 
with its short-lived decay products and are based on information given 
in ICRP Publication 65: Protection Against Radon-222 at Home and at Work 
and in DOE-STD-1121-98: Internal Dosimetry. The values given are for 
100% equilibrium concentration conditions of the short-lived radon decay 
products with the parent. To allow for an actual measured equilibrium 
concentration or a demonstrated equilibrium concentration, the values 
given in this table should be multiplied by the ratio (100%/actual %) or 
(100%/demonstrated %), respectively. Alternatively, the DAC values for 
Rn-220 and Rn-222 may be replaced by 2.5 working level (WL) and 0.83 WL, 
respectively, for appropriate limiting of decay product concentrations. 
A WL is any combination of short-lived radon decay products, in one 
liter of air without regard to the degree of equilibrium, that will 
result in the ultimate emission of 1.3 E+05 MeV of alpha energy.

[72 FR 31927, June 8, 2007]



                 Sec. Appendix B to Part 835 [Reserved]



Sec. Appendix C to Part 835--Derived Air Concentration (DAC) for Workers 
     
     From External Exposure During Immersion in a Cloud of Airborne 
                          Radioactive Material

    a. The data presented in appendix C are to be used for controlling 
occupational exposures in accordance with Sec. 835.209, identifying the 
need for air monitoring in accordance with Sec. 835.403 and identifying 
the need for posting of airborne radioactivity areas in accordance with 
Sec. 835.603(d).
    b. The air immersion DAC values shown in this appendix are based on 
a stochastic dose limit of 5 rems (0.05 Sv) per year. Four columns of 
information are presented: (1) Radionuclide; (2) half-life in units of 
seconds (s), minutes (min), hours (h), days (d), or years (yr); (3) air 
immersion DAC in units of [micro]Ci/mL; and (4) air immersion DAC in 
units of Bq/m3. The data are listed by radionuclide in order of 
increasing atomic mass. The air immersion DACs were calculated for a 
continuous, nonshielded exposure via immersion in a semi-infinite cloud 
of airborne radioactive material. The DACs listed in this appendix may 
be modified to allow for submersion in a cloud of finite dimensions.
    c. The DAC values are given for individual radionuclides. For known 
mixtures of radionuclides, determine the sum of the ratio of the 
observed concentration of a particular radionuclide and its 
corresponding DAC for all radionuclides in the mixture. If this sum 
exceeds unity (1), then the DAC has been exceeded. For unknown 
radionuclides, the most restrictive DAC (lowest value) for those 
isotopes not known to be absent shall be used.

                                                Air Immersion DAC
----------------------------------------------------------------------------------------------------------------
                                                Air immersion DAC
-----------------------------------------------------------------------------------------------------------------
             Radionuclide                       Half-Life              ([micro]Ci/mL)            (Bq/m\3\)
----------------------------------------------------------------------------------------------------------------
Ar-37.................................  35.02 d..................  1 E+00                  4 E+10
Ar-39.................................  269 yr...................  4 E-04                  1 E+07
Ar-41.................................  1.827 h..................  1 E-06                  3 E+04
Kr-74.................................  11.5 min.................  1 E-06                  4 E+04
Kr-76.................................  14.8 h...................  3 E-06                  1 E+05
Kr-77.................................  74.7 h...................  1 E-06                  5 E+04
Kr-79.................................  35.04 h..................  5 E-06                  2 E+05
Kr-81.................................  2.1E+05 yr...............  2 E-04                  9 E+06
Kr-83m................................  1.83 h...................  2 E-02                  9 E+08
Kr-85.................................  10.72 yr.................  2 E-04                  9 E+06
Kr-85m................................  4.48 h...................  9 E-06                  3 E+05
Kr-87.................................  76.3 min.................  1 E-06                  5 E+04
Kr-88.................................  2.84 h...................  6 E-07                  2 E+04
Xe-120................................  40.0 min.................  3 E-06                  1 E+05
Xe-121................................  40.1 min.................  7 E-07                  2 E+04
Xe-122................................  20.1 h...................  2 E-05                  1 E+06
Xe-123................................  2.14 h...................  2 E-06                  8 E+04
Xe-125................................  16.8 h...................  5 E-06                  2 E+05
Xe-127................................  36.406 d.................  5 E-06                  2 E+05
Xe-129m...............................  8.89 d...................  6 E-05                  2 E+06
Xe-131m...............................  11.84 d..................  1 E-04                  6 E+06
Xe-133................................  5.245 d..................  4 E-05                  1 E+06

[[Page 580]]

 
Xe-133m...............................  2.19 d...................  4 E-05                  1 E+06
Xe-135................................  9.11 h...................  5 E-06                  2 E+05
Xe-135m...............................  15.36 min................  3 E-06                  1 E+05
Xe-138................................  14.13 min................  1 E-06                  4 E+04
----------------------------------------------------------------------------------------------------------------

    For any single radionuclide not listed above with decay mode other 
than alpha emission or spontaneous fission and with radioactive half-
life less than two hours, the DAC value shall be 6 E-06 [micro]Ci/mL (2 
E+04 Bq/m\3\).

[72 FR 31940, June 8, 2007]



        Sec. Appendix D to Part 835--Surface Contamination Values

    The data presented in appendix D are to be used in identifying the 
need for posting of contamination and high contamination areas in 
accordance with Sec. 835.603(e) and (f) and identifying the need for 
surface contamination monitoring and control in accordance with 
Sec. Sec. 835.1101 and 835.1102.

           Surface Contamination Values \1\ in dpm/100 cm \2\
------------------------------------------------------------------------
                                                          Total (Fixed +
              Radionuclide                   Removable      Removable)
                                               \2,4\           \2,3\
------------------------------------------------------------------------
U-nat, U-235, U-238, and associated            \7\ 1,000       \7\ 5,000
 decay products.........................
Transuranics, Ra-226, Ra-228, Th-230, Th-             20             500
 228, Pa-231, Ac-227, I-125, I-129......
Th-nat, Th-232, Sr-90, Ra-223, Ra-224, U-            200           1,000
 232, I-126, I-131, I-133...............
Beta-gamma emitters (nuclides with decay           1,000           5,000
 modes other than alpha emission or
 spontaneous fission) except Sr-90 and
 others noted above \5\.................
Tritium and STCs \6\....................          10,000  See Footnote 6
------------------------------------------------------------------------
\1\ The values in this appendix, with the exception noted in footnote 6
  below, apply to radioactive contamination deposited on, but not
  incorporated into the interior or matrix of, the contaminated item.
  Where surface contamination by both alpha- and beta-gamma-emitting
  nuclides exists, the limits established for alpha- and beta-gamma-
  emitting nuclides apply independently.
\2\ As used in this table, dpm (disintegrations per minute) means the
  rate of emission by radioactive material as determined by correcting
  the counts per minute observed by an appropriate detector for
  background, efficiency, and geometric factors associated with the
  instrumentation.
\3\ The levels may be averaged over one square meter provided the
  maximum surface activity in any area of 100 cm \2\ is less than three
  times the value specified. For purposes of averaging, any square meter
  of surface shall be considered to be above the surface contamination
  value if: (1) From measurements of a representative number of sections
  it is determined that the average contamination level exceeds the
  applicable value; or (2) it is determined that the sum of the activity
  of all isolated spots or particles in any 100 cm \2\ area exceeds
  three times the applicable value.
\4\ The amount of removable radioactive material per 100 cm \2\ of
  surface area should be determined by swiping the area with dry filter
  or soft absorbent paper, applying moderate pressure, and then
  assessing the amount of radioactive material on the swipe with an
  appropriate instrument of known efficiency. (Note--The use of dry
  material may not be appropriate for tritium.) When removable
  contamination on objects of surface area less than 100 cm \2\ is
  determined, the activity per unit area shall be based on the actual
  area and the entire surface shall be wiped. It is not necessary to use
  swiping techniques to measure removable contamination levels if direct
  scan surveys indicate that the total residual surface contamination
  levels are within the limits for removable contamination.
\5\ This category of radionuclides includes mixed fission products,
  including the Sr-90 which is present in them. It does not apply to Sr-
  90 which has been separated from the other fission products or
  mixtures where the Sr-90 has been enriched.
\6\ Tritium contamination may diffuse into the volume or matrix of
  materials. Evaluation of surface contamination shall consider the
  extent to which such contamination may migrate to the surface in order
  to ensure the surface contamination value provided in this appendix is
  not exceeded. Once this contamination migrates to the surface, it may
  be removable, not fixed; therefore, a ``Total'' value does not apply.
  In certain cases, a ``Total'' value of 10,000 dpm/100 cm \2\ may be
  applicable either to metals, of the types which form insoluble special
  tritium compounds that have been exposed to tritium; or to bulk
  materials to which particles of insoluble special tritium compound are
  fixed to a surface.
\7\ These limits only apply to the alpha emitters within the respective
  decay series.


[58 FR 65485, Dec. 14, 1993, as amended at 63 FR 59688, Nov. 4, 1998; 72 
FR 31940, June 8, 2007; 74 FR 18116, Apr. 21, 2009]

[[Page 581]]



Sec. Appendix E to Part 835--Values for Establishing Sealed Radioactive 
  
  Source Accountability and Radioactive Material Posting and Labeling 
                              Requirements

    The data presented in appendix E are to be used for identifying 
accountable sealed radioactive sources and radioactive material areas as 
those terms are defined at Sec. 835.2(a), establishing the need for 
radioactive material area posting in accordance with Sec. 835.603(g), 
and establishing the need for radioactive material labeling in 
accordance with Sec. 835.605.

------------------------------------------------------------------------
                  Nuclide                        Activity ([micro]Ci)
------------------------------------------------------------------------
H-3........................................  1.5E+08
Be-7.......................................  3.1E+03
Be-10......................................  1.4E+05
C-14.......................................  4.6E+06
Na-22......................................  1.9E+01
Al-26......................................  1.5E+01
Si-32......................................  4.9E+04
S-35.......................................  2.4E+06
Cl-36......................................  5.2E+05
K-40.......................................  2.7E+02
Ca-41......................................  9.3E+06
Ca-45......................................  1.1E+06
Sc-46......................................  6.2E+01
Ti-44......................................  1.5E+02
V-49.......................................  1.0E+08
Mn-53......................................  7.5E+07
Mn-54......................................  6.5E+01
Fe-55......................................  2.9E+06
Fe-59......................................  1.9E+02
Fe-60......................................  8.1E+03
Co-56......................................  3.9E+01
Co-57......................................  2.3E+02
Co-58......................................  1.3E+02
Co-60......................................  1.7E+01
Ni-59......................................  3.2E+06
Ni-63......................................  1.3E+06
Zn-65......................................  1.1E+02
Ge-68......................................  5.6E+02
As-73......................................  5.3E+02
Se-75......................................  6.3E+01
Se-79......................................  8.7E+05
Rb-83......................................  9.1E+01
Rb-84......................................  2.0E+02
Sr-85......................................  1.2E+02
Sr-89......................................  4.8E+05
Sr-90......................................  3.5E+04
Y-88.......................................  3.3E+01
Y-91.......................................  5.0E+04
Zr-88......................................  1.1E+02
Zr-93......................................  9.3E+04
Zr-95......................................  1.9E+02
Nb-91......................................  6.9E+01
Nb-91m.....................................  3.6E+02
Nb-92......................................  1.8E+01
Nb-93m.....................................  4.4E+02
Nb-94......................................  2.3E+01
Nb-95......................................  3.4E+02
Mo-93......................................  7.7E+01
Tc-95m.....................................  1.3E+02
Tc-97......................................  8.1E+01
Tc-97m.....................................  3.5E+02
Tc-98......................................  2.5E+01
Tc-99......................................  8.4E+05
Ru-103.....................................  4.4E+02
Ru-106.....................................  2.5E+02
Rh-101.....................................  8.7E+05
Rh-102.....................................  3.0E+05
Rh-102m....................................  6.4E+05
Pd-107.....................................  9.3E+06
Ag-105.....................................  3.3E+06
Ag-108m....................................  1.8E+01
Ag-110m....................................  2.2E+01
Cd-109.....................................  1.6E+02
Cd-113m....................................  2.0E+04
Cd-115m....................................  1.0E+04
In-114m....................................  7.7E+02
Sn-113.....................................  3.1E+02
Sn-119m....................................  3.3E+02
Sn-121m....................................  8.1E+05
Sn-123.....................................  1.3E+04
Sn-126.....................................  1.8E+02
Sb-124.....................................  9.1E+01
Sb-125.....................................  6.7E+01
Te-121m....................................  1.8E+02
Te-123m....................................  2.8E+02
Te-125m....................................  4.4E+02
Te-127m....................................  8.0E+02
Te-129m....................................  2.3E+03
I-125......................................  3.5E+02
I-129......................................  1.8E+02
Cs-134.....................................  2.6E+01
Cs-135.....................................  1.3E+06
Cs-137.....................................  6.0E+01
Ba-133.....................................  5.1E+01
La-137.....................................  2.7E+05
Ce-139.....................................  2.4E+02
Ce-141.....................................  2.4E+03
Ce-144.....................................  1.4E+03
Pm-143.....................................  1.3E+02
Pm-144.....................................  2.9E+01
Pm-145.....................................  2.6E+02
Pm-146.....................................  4.4E+01
Pm-147.....................................  7.7E+05
Pm-148m....................................  1.0E+02
Sm-145.....................................  2.4E+06
Sm-146.....................................  4.0E+02
Sm-151.....................................  2.5E+05
Eu-148.....................................  1.1E+06
Eu-149.....................................  1.1E+07
Eu-152.....................................  3.1E+01
Eu-154.....................................  3.1E+01
Eu-155.....................................  3.6E+02
Gd-146.....................................  5.1E+05
Gd-148.....................................  9.0E+01
Gd-151.....................................  2.9E+06
Gd-153.....................................  2.1E+02
Tb-157.....................................  2.5E+03
Tb-158.....................................  9.0E+04
Tb-160.....................................  1.2E+02
Dy-159.....................................  1.0E+07
Ho-166m....................................  2.1E+01
Tm-170.....................................  8.4E+03
Tm-171.....................................  2.8E+04
Yb-169.....................................  5.5E+02
Lu-173.....................................  1.8E+06
Lu-174.....................................  9.3E+05
Lu-174m....................................  1.0E+06
Lu-177m....................................  5.8E+01
Hf-172.....................................  7.3E+04
Hf-175.....................................  3.0E+06
Hf-178m....................................  8.7E+03
Hf-181.....................................  3.4E+02
Hf-182.....................................  7.5E+03
Ta-179.....................................  9.3E+06
Ta-182.....................................  7.3E+01
W-181......................................  1.0E+03
W-185......................................  3.9E+06
W-188......................................  6.3E+04
Re-183.....................................  5.3E+02
Re-184.....................................  2.6E+02

[[Page 582]]

 
Re-184m....................................  1.5E+02
Re-186m....................................  3.4E+05
Os-185.....................................  1.3E+02
Os-194.....................................  6.4E+04
Ir-192.....................................  1.3E+02
Ir-192m....................................  1.4E+05
Ir-194m....................................  2.7E+01
Pt-193.....................................  8.7E+07
Au-195.....................................  4.8E+02
Hg-194.....................................  5.2E+04
Hg-203.....................................  4.9E+02
Tl-204.....................................  2.2E+04
Pb-202.....................................  1.9E+05
Pb-205.....................................  9.0E+01
Pb-210.....................................  9.2E+01
Bi-207.....................................  1.7E+01
Bi-208.....................................  1.5E+01
Bi-210m....................................  1.2E+03
Po-209.....................................  6.3E+03
Po-210.....................................  1.2E+03
Ra-226.....................................  2.2E+02
Ra-228.....................................  1.5E+03
Ac-227.....................................  4.2E+00
Th-228.....................................  8.4E+01
Th-229.....................................  3.1E+01
Th-230.....................................  5.4E+00
Th-232.....................................  9.3E+01
Pa-231.....................................  3.0E+01
U-232......................................  1.0E+02
U-233......................................  3.9E+02
U-234......................................  2.9E+02
U-235......................................  6.7E+01
U-236......................................  3.1E+02
U-238......................................  3.5E+02
Np-235.....................................  1.1E+02
Np-236.....................................  2.1E+01
Np-237.....................................  4.9E+01
Pu-236.....................................  2.0E+02
Pu-237.....................................  3.3E+02
Pu-238.....................................  9.0E+01
Pu-239.....................................  8.4E+01
Pu-240.....................................  8.4E+01
Pu-241.....................................  4.6E+03
Pu-242.....................................  8.7E+01
Pu-244.....................................  9.0E+01
Am-241.....................................  7.2E+01
Am-242m....................................  1.1E+02
Am-243.....................................  7.3E+01
Cm-241.....................................  1.0E+05
Cm-242.....................................  6.2E+02
Cm-243.....................................  4.8E+01
Cm-244.....................................  1.5E+02
Cm-245.....................................  5.0E+01
Cm-246.....................................  1.0E+02
Cm-247.....................................  8.5E+01
Cm-248.....................................  2.8E+01
Cm-250.....................................  5.4E+00
Bk-247.....................................  6.0E+01
Bk-249.....................................  2.7E+04
Cf-248.....................................  4.4E+02
Cf-249.....................................  5.5E+01
Cf-250.....................................  1.2E+02
Cf-251.....................................  5.3E+01
Cf-252.....................................  5.2E+00
Cf-254.....................................  1.2E+02
Es-254.....................................  6.3E+01
Es-255.....................................  8.8E+03
Fm-257.....................................  5.1E+02
Md-258.....................................  6.1E+02
------------------------------------------------------------------------

    Any alpha emitting radionuclide not listed in appendix E and 
mixtures of alpha emitters of unknown composition have a value of 10 
[micro]Ci.
    With the exception that any type of STC has a value of 10 Ci, any 
radionuclide other than alpha emitting radionuclides not listed in 
appendix E and mixtures of beta emitters of unknown composition have a 
value of 100 [micro]Ci.
    Note: Where there is involved a mixture of radionuclides in known 
amounts, derive the value for the mixture as follows: determine, for 
each radionuclide in the mixture, the ratio between the quantity present 
in the mixture and the value otherwise established for the specific 
radionuclide when not in the mixture. If the sum of such ratios for all 
radionuclides in the mixture exceeds unity (1), then the accountability 
criterion has been exceeded.

[72 FR 31940, June 8, 2007]



PART 840_EXTRAORDINARY NUCLEAR OCCURRENCES--Table of Contents



Sec.
840.1 Scope and purpose.
840.2 Procedures.
840.3 Determination of extraordinary nuclear occurrence.
840.4 Criterion I--Substantial discharge of radioactive material or 
          substantial radiation levels offsite.
840.5 Criterion II--Substantial damages to persons offsite or property 
          offsite.

    Authority: Sec. 161 of the Atomic Energy Act of 1954, Pub. L. 83-
703, 68 Stat. 919 (42 U.S.C. 2201); sec. 170 of the Atomic Energy Act of 
1954, Pub. L. 85-256, 71 Stat. 576, as amended by Pub. L. 89-645, 80 
Stat. 891 (42 U.S.C. 2210); Department of Energy Organization Act, Pub. 
L. 95-91, 91 Stat. 565-613 (42 U.S.C. 7101-7352).

    Source: 49 FR 21473, May 21, 1984, unless otherwise noted.



Sec. 840.1  Scope and purpose.

    (a) Scope. This subpart applies to those DOE contractor activities 
to which the nuclear hazards indemnity provisions in 41 CFR 9-50.704-6 
apply, and to other persons indemnified with respect to such activities.
    (b) Purpose. One purpose of this subpart is to set forth the 
criteria which the DOE proposes to follow in order to determine whether 
there has been an ``extraordinary nuclear occurrence.'' The other 
purpose is to establish the conditions of the waivers of defenses 
proposed for incorporation in indemnity agreements.
    (1) The system is to come into effect only where the discharge or 
dispersal constitutes a substantial amount of

[[Page 583]]

source, special nuclear or byproduct material, or has caused substantial 
radiation levels offsite. The various limits in present DOE regulations 
are not appropriate for direct application in the determination of an 
``extraordinary nuclear occurrence,'' for they were arrived at with 
other purposes in mind, and those limits have been set at a level which 
is conservatively arrived at by incorporating a significant safety 
factor. Thus, a discharge or dispersal which exceeds the limits in DOE 
regulations, or in DOE orders, although possible cause for concern, is 
not one which would be expected to cause substantial injury or damage 
unless it exceeds by some significant multiple the appropriate 
regulatory limit. Accordingly, in arriving at the values in the criteria 
to be deemed ``substantial'' it is more appropriate to adopt values 
separate from DOE health and safety orders, and, of course the selection 
of these values will not in any way affect such orders. A substantial 
discharge, for purposes of the criteria, represents a perturbation of 
the environment which is clearly above that which could be anticipated 
from the conduct of normal activities. The criteria are intended solely 
for the purposes of administration of DOE statutory responsibilities 
under Pub. L. 89-645, and are not intended to indicate a level of 
discharge or dispersal at which damage is likely to occur, or even a 
level at which some type of protective action is indicated. It should be 
clearly understood that the criteria in no way establish or indicate 
that there is a specific threshold of exposure at which biological 
damage from radiation will take place. It cannot be emphasized too 
frequently that the levels set to be used as criteria for the first part 
of the determination, that is, the criteria for amounts offsite or 
radiation levels offsite which are substantial, are not meant to 
indicate that, because such amounts or levels are determined to be 
substantial for purposes of administration, they are ``substantial'' in 
terms of their propensity for causing injury or damage.
    (2) It is the purpose of the second part of the determination that 
DOE decide whether there have in fact been or will probably be 
substantial damages to persons offsite or property offsite. The criteria 
for substantial damages were formulated, and the numerical values 
selected, on a wholly different basis from that on which the criteria 
used for the first part of the determination with respect to substantial 
discharge were derived. The only interrelation between the values 
selected for the discharge criteria and the damage criteria is that the 
discharge values are set so low that it is extremely unlikely the damage 
criteria could be satisfied unless the discharge values have been 
exceeded.
    (3) The first part of the test is designed so that DOE can assure 
itself that something exceptional has occurred; that something untoward 
and unexpected has in fact taken place and that this event is of 
sufficient significance to raise the possibility that some damage to 
persons or property offsite has resulted or may result. If there appears 
to be no damage, the waivers will not apply because DOE will be unable, 
under the second part of the test, to make a determination that 
``substantial damages'' have resulted or will probably result. If 
damages have resulted or will probably result, they could vary from de 
minimis to serious, and the waivers will not apply until the damages, 
both actual and probable, are determined to be ``substantial'' within 
the second part of the test.
    (4) The presence or absence of an extraordinary nuclear occurrence 
determination does not concomitantly determine whether or not a 
particular claimant will recover on his claim. In effect, it is intended 
primarily to determine whether certain potential obstacles to recovery 
are to be removed from the route the claimant would ordinarily follow to 
seek compensation for his injury or damage. If there has not been an 
extraordinary nuclear occurrence determination, the claimant must 
proceed (in the absence of settlement) with a tort action subject to 
whatever issues must be met, and whatever defenses are available to the 
defendant, under the law applicable in the relevant jurisdiction. If 
there has been an extraordinary nuclear occurrence determination, the 
claimant must still proceed (in the absence of settlement) with a tort 
action, but the

[[Page 584]]

claimant's burden is substantially eased by the elimination of certain 
issues which may be involved and certain defenses which may be available 
to the defendant. In either case the defendant may defend with respect 
to such of the following matters as are in issue in any given claim: the 
nature of the claimant's alleged damages, the causal relationship 
between the event and the alleged damages, and the amount of the alleged 
damages.



Sec. 840.2  Procedures.

    (a) DOE may initiate, on its own motion, the making of a 
determination as to whether or not there has been an extraordinary 
nuclear occurrence. In the event DOE does not so initiate the making of 
a determination, any affected person, or any person with whom an 
indemnity agreement is executed may petition DOE for a determination of 
whether or not there has been an extraordinary nuclear occurrence. If 
DOE does not have, or does not expect to have, within 7 days after it 
has received notification of an alleged event, enough information 
available to make a determination that there has been an extraordinary 
nuclear occurrence, DOE will publish a notice in the Federal Register 
setting forth the date and place of the alleged event and requesting any 
persons having knowledge thereof to submit their information to DOE.
    (b) When a procedure is initiated under paragraph (a) of this 
section, the principal staff which will begin immediately to assemble 
the relevant information and prepare a report on which the DOE can make 
its determination will consist of the Directors or their designees of 
the following Divisions or Offices: Office of Nuclear Safety, Office of 
Operational Safety, Office of Health and Environmental Research, the 
General Counsel or his designee, and a representative of the program 
division whose facility or device may be involved.



Sec. 840.3  Determination of extraordinary nuclear occurrence.

    If the DOE determines that both of the criteria set forth in Sec. 
840.4 and Sec. 840.5 have been met, it will make the determination that 
there has been an extraordinary nuclear occurrence. If the DOE publishes 
a notice in the Federal Register in accordance with Sec. 840.2(a) and 
does not make a determination within 90 days thereafter that there has 
been an extraordinary nuclear occurrence, the alleged event will be 
deemed not to be an extraordinary nuclear occurrence. The time for the 
making of a determination may be extended by DOE by notice published in 
the Federal Register.



Sec. 840.4  Criterion I--Substantial discharge of radioactive material or substantial radiation levels offsite.

    DOE will determine that there has been a substantial discharge or 
dispersal of radioactive material offsite, or that there have been 
substantial levels of radiation offsite, when as a result of an event 
comprised of one or more related happenings, radioactive material is 
released from its intended place of confinement or radiation levels 
occur offsite and either of the following findings are also made:
    (a) DOE finds that one or more persons offsite were, could have 
been, or might be exposed to radiation or to radioactive material, 
resulting in a dose or in a projected dose in excess of one of the 
levels in the following table:

                     Total Projected Radiation Doses
------------------------------------------------------------------------
                                                                  Dose
                        Critical organ                           (rems)
------------------------------------------------------------------------
Thyroid.......................................................       30
Whole Body....................................................       20
Bone Marrow...................................................       20
Skin..........................................................       60
Other organs or tissues.......................................       30
------------------------------------------------------------------------

    Exposures from the following types of sources of radiation shall be 
included:
    (1) Radiation from sources external to the body;
    (2) Radioactive material that may be taken into the body from its 
occurrence in air or water; and
    (3) Radioactive material that may be taken into the body from its 
occurrence in food or on terrestrial surfaces.
    (b) DOE finds that--
    (1) Surface contamination of at least a total of any 100 square 
meters of offsite property has occurred as the result of a release of 
radioactive material

[[Page 585]]

from a production or utilization facility or device and such 
contamination is characterized by levels of radiation in excess of one 
of the values listed in column 1 or column 2 of the following table, or
    (2) Surface contamination of any offsite property has occurred as 
the result of a release of radioactive material in the course of 
transportation and such contamination is characterized by levels of 
radiation in excess of one of the values listed in column 2 of the 
following table:

                 Total Surface Contamination Levels \1\
------------------------------------------------------------------------
                                   Column 1--Offsite    Column 2--Other
         Type of emitter             property \2\      offsite property
------------------------------------------------------------------------
Alpha emission from transuranic   3.5 microcuries     0.35 microcuries
 isotopes.                         per square meter.   per square meter.
Alpha emission from isotopes      35 microcuries per  3.5 microcuries
 other than transuranic isotopes.  square meter.       per square meter.
Beta or gamma emission..........  40 millirads/hour   4 millirads/hour 1
                                   1 cm (measured      cm (measured
                                   through not more    through not more
                                   than 7 milligrams   than 7 milligrams
                                   per square          per square
                                   centimeter of       centimeter of
                                   total absorber).    total absorber).
------------------------------------------------------------------------
\1\ The maximum levels (above background), observed or projected, 8 or
  more hours after initial deposition.
\2\ Contiguous to site, owned or leased by person with whom an indemnity
  agreement is executed.


[49 FR 21473, May 21, 1984; 49 FR 24374, June 13, 1984]



Sec. 840.5  Criterion II--Substantial damages to persons offsite or property offsite.

    (a) After DOE has determined that an event has satisfied Criterion 
I, DOE will determine that the event has resulted or will probably 
result in substantial damages to persons offsite or property offsite if 
any of the following findings are made:
    (1) DOE finds that such event has resulted in the death or 
hospitalization, within 30 days of the event, of five or more people 
located offsite showing objective clinical evidence of physical injury 
from exposure to the radioactive, toxic, explosive, or other hazardous 
properties of source, special nuclear, or byproduct material; or
    (2) DOE finds that $2,500,000 or more of damage offsite has been or 
will probably be sustained by any one person, or $5 million or more of 
such damage in the aggregate has been or will probably be sustained, as 
the result of such event; or
    (3) DOE finds that $5,000 or more of damage offsite has been or will 
probably be sustained by each of 50 or more persons, provided that $1 
million or more of such damage in the aggregate has been or will 
probably be sustained, as the result of such event.
    (b) As used in paragraphs (a) (2) and (3) of this section ``damage'' 
shall be that arising out of or resulting from the radioactive, toxic, 
explosive, or other hazardous properties of source, special nuclear, or 
byproduct material, and shall be based upon estimates of one or more of 
the following:
    (1) Total cost necessary to put affected property back into use.
    (2) Loss of use of affected property.
    (3) Value of affected property where not practical to restore to 
use.
    (4) Financial loss resulting from protective actions appropriate to 
reduce or avoid exposure to radiation or to radioactive materials.



PART 850_CHRONIC BERYLLIUM DISEASE PREVENTION PROGRAM--Table of Contents



                      Subpart A_General Provisions

Sec.
850.1 Scope.
850.2 Applicability.
850.3 Definitions.
850.4 Enforcement.
850.5 Dispute resolution.

                  Subpart B_Administrative Requirements

850.10 Development and approval of the CBDPP.
850.11 General CBDPP requirements.
850.12 Implementation.
850.13 Compliance.

                 Subpart C_Specific Program Requirements

850.20 Baseline beryllium inventory.
850.21 Hazard assessment.
850.22 Permissible exposure limit.
850.23 Action level.
850.24 Exposure monitoring.
850.25 Exposure reduction and minimization.
850.26 Regulated areas.
850.27 Hygiene facilities and practices.
850.28 Respiratory protection.
850.29 Protective clothing and equipment.

[[Page 586]]

850.30 Housekeeping.
850.31 Release criteria.
850.32 Waste disposal.
850.33 Beryllium emergencies.
850.34 Medical surveillance.
850.35 Medical removal.
850.36 Medical consent.
850.37 Training and counseling.
850.38 Warning signs and labels.
850.39 Recordkeeping and use of information.
850.40 Performance feedback.

Appendix A to Part 850--Chronic Beryllium Disease Prevention Program 
          Informed Consent Form.

    Authority: 42 U.S.C. 2201(i)(3), (p); 42 U.S.C. 2282c; 29 U.S.C. 
668; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq., E.O. 12196, 3 CFR 
1981 comp., at 145 as amended.

    Source: 64 FR 68905, Dec. 8, 1999, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 850.1  Scope.

    This part provides for establishment of a chronic beryllium disease 
prevention program (CBDPP) that supplements and is deemed an integral 
part of the worker safety and health program under part 851 of this 
chapter.

[71 FR 6931, Feb. 9, 2006]



Sec. 850.2  Applicability.

    (a) This part applies to:
    (1) DOE offices responsible for operations or activities that 
involve present or past exposure, or the potential for exposure, to 
beryllium at DOE facilities;
    (2) DOE contractors with operations or activities that involve 
present or past exposure, or the potential for exposure, to beryllium at 
DOE facilities; and
    (3) Any current DOE employee, DOE contractor employee, or other 
worker at a DOE facility who is or was exposed or potentially exposed to 
beryllium at a DOE facility.
    (b) This part does not apply to:
    (1) Beryllium articles; and
    (2) DOE laboratory operations that meet the definition of laboratory 
use of hazardous chemicals in 29 CFR 1910.1450, Occupational Exposure to 
Hazardous Chemical in Laboratories.



Sec. 850.3  Definitions.

    (a) As used in this part:
    Action level means the level of airborne concentration of beryllium 
established pursuant to section 850.23 of this part that, if met or 
exceeded, requires the implementation of worker protection provisions 
specified in that section.
    Authorized person means any person required by work duties to be in 
a regulated area.
    Beryllium means elemental beryllium and any insoluble beryllium 
compound or alloy containing 0.1 percent beryllium or greater that may 
be released as an airborne particulate.
    Beryllium activity means an activity taken for, or by, DOE at a DOE 
facility that can expose workers to airborne beryllium, including but 
not limited to design, construction, operation, maintenance, or 
decommissioning, and which may involve one DOE facility or operation or 
a combination of facilities and operations.
    Beryllium article means a manufactured item that is formed to a 
specific shape or design during manufacture, that has end-use functions 
that depend in whole or in part on its shape or design during end use, 
and that does not release beryllium or otherwise result in exposure to 
airborne concentrations of beryllium under normal conditions of use.
    Beryllium-associated worker means a current worker who is or was 
exposed or potentially exposed to airborne concentrations of beryllium 
at a DOE facility, including:
    (1) A beryllium worker;
    (2) A current worker whose work history shows that the worker may 
have been exposed to airborne concentrations of beryllium at a DOE 
facility;
    (3) A current worker who exhibits signs or symptoms of beryllium 
exposure; and
    (4) A current worker who is receiving medical removal protection 
benefits.
    Beryllium emergency means any occurrence such as, but not limited 
to, equipment failure, container rupture, or failure of control 
equipment or operations that results in an unexpected and significant 
release of beryllium at a DOE facility.
    Beryllium-induced lymphocyte proliferation test (Be-LPT) is an in 
vitro

[[Page 587]]

measure of the beryllium antigen-specific, cell-mediated immune 
response.
    Beryllium worker means a current worker who is regularly employed in 
a DOE beryllium activity.
    Breathing zone is defined as a hemisphere forward of the shoulders, 
centered on the mouth and nose, with a radius of 6 to 9 inches.
    DOE means the U.S. Department of Energy.
    DOE contractor means any entity under contract with DOE (or its 
subcontractor) that has responsibility for performing beryllium 
activities at DOE facilities.
    DOE facility means any facility operated by or for DOE.
    Head of DOE Field Element means an individual who is the manager or 
head of the DOE operations office or field office, or any official to 
whom the Head of DOE Field Element delegates his or her functions under 
this part.
    High-efficiency particulate air (HEPA) filter means a filter capable 
of trapping and retaining at least 99.97 percent of 0.3 micrometer 
monodispersed particles.
    Immune response refers to the series of cellular events by which the 
immune system reacts to challenge by an antigen.
    Medical removal protection benefits means the employment rights 
established by section 850.35 of this part for beryllium-associated 
workers who voluntarily accept temporary or permanent medical removal 
from beryllium areas following a recommendation by the Site Occupational 
Medicine Director.
    Operational area means an area where workers are routinely in the 
presence of beryllium as part of their work activity.
    Regulated area means an area demarcated by the responsible employer 
in which the airborne concentration of beryllium exceeds, or can 
reasonably be expected to exceed, the action level.
    Removable contamination means beryllium contamination that can be 
removed from surfaces by nondestructive means, such as casual contact, 
wiping, brushing or washing.
    Responsible employer means:
    (1) For DOE contractor employees, the DOE contractor office that is 
directly responsible for the safety and health of DOE contractor 
employees while performing a beryllium activity or other activity at a 
DOE facility; or
    (2) For DOE employees, the DOE office that is directly responsible 
for the safety and health of DOE Federal employees while performing a 
beryllium activity or other activity at a DOE facility; and
    (3) Any person acting directly or indirectly for such office with 
respect to terms and conditions of employment of beryllium-associated 
workers.
    Site Occupational Medical Director (SOMD) means the physician 
responsible for the overall direction and operation of the site 
occupational medicine program.
    Unique identifier means the part of a paired set of labels, used in 
records that contain confidential information, that does not identify 
individuals except by using the matching label.
    Worker means a person who performs work for or on behalf of DOE, 
including a DOE employee, an independent contractor, a DOE contractor or 
subcontractor employee, or any other person who performs work at a DOE 
facility.
    Worker exposure means the exposure of a worker to airborne beryllium 
that would occur if the worker were not using respiratory protective 
equipment.
    (b) Terms undefined in this part that are defined in the Atomic 
Energy Act of 1954 shall have the same meaning as under that Act.



Sec. 850.4  Enforcement.

    DOE may take appropriate steps pursuant to part 851 of this chapter 
to enforce compliance by contractors with this part and any DOE-approved 
CBDPP.

[71 FR 6931, Feb. 9, 2006]



Sec. 850.5  Dispute resolution.

    (a) Subject to paragraphs (b) and (c) of this section, any worker 
who is adversely affected by an action taken, or failure to act, under 
this part may petition the Office of Hearings and Appeals for relief in 
accordance with 10 CFR part 1003, Subpart G.
    (b) The Office of Hearings and Appeals may not accept a petition 
from a worker unless the worker requested the

[[Page 588]]

responsible employer to correct the violation, and the responsible 
employer refused or failed to take corrective action within a reasonable 
time.
    (c) If the dispute relates to a term or condition of employment that 
is covered by a grievance-arbitration provision in a collective 
bargaining agreement, the worker must exhaust all applicable grievance-
arbitration procedures before filing a petition for relief with the 
Office of Hearings and Appeals. A worker is deemed to have exhausted all 
applicable grievance-arbitration procedures if 150 days have passed 
since the filing of a grievance and a final decision on it has not been 
issued.



                  Subpart B_Administrative Requirements



Sec. 850.10  Development and approval of the CBDPP.

    (a) Preparation and submission of initial CBDPP to DOE. (1) The 
responsible employer at a DOE facility must ensure that a CBDPP is 
prepared for the facility and submitted to the appropriate Head of DOE 
Field Element before beginning beryllium activities, but no later than 
April 6, 2000 of this part.
    (2) If the CBDPP has separate sections addressing the activities of 
multiple contractors at the facility, the Head of DOE Field Element will 
designate a single DOE contractor to review and approve the sections 
prepared by other contractors, so that a single consolidated CBDPP for 
the facility is submitted to the Head of DOE Field Element for review 
and approval.
    (b) DOE review and approval. The appropriate Head of DOE Field 
Element must review and approve the CBDPP.
    (1) The initial CBDPP and any updates are deemed approved 90 days 
after submission if they are not specifically approved or rejected by 
DOE earlier.
    (2) The responsible employer must furnish a copy of the approved 
CBDPP, upon request, to the DOE Chief Health, Safety and Security 
Officer or designee, DOE program offices, and affected workers or their 
designated representatives.
    (c) Update. The responsible employer must submit an update of the 
CBDPP to the appropriate Head of DOE Field Element for review and 
approval whenever a significant change or significant addition to the 
CBDPP is made or a change in contractors occurs. The Head of DOE Field 
Element must review the CBDPP at least annually and, if necessary, 
require the responsible employer to update the CBDPP.
    (d) Labor Organizations. If a responsible employer employs or 
supervises beryllium-associated workers who are represented for 
collective bargaining by a labor organization, the responsible employer 
must:
    (1) Give the labor organization timely notice of the development and 
implementation of the CBDPP and any updates thereto; and
    (2) Upon timely request, bargain concerning implementation of this 
part, consistent with the Federal labor laws.

[64 FR 68905, Dec. 8, 1999, as amended at 71 FR 68733, Nov. 28, 2006]



Sec. 850.11  General CBDPP requirements.

    (a) The CBDPP must specify the existing and planned operational 
tasks that are within the scope of the CBDPP. The CBDPP must augment 
and, to the extent feasible, be integrated into the existing worker 
protection programs that cover activities at the facility.
    (b) The detail, scope, and content of the CBDPP must be commensurate 
with the hazard of the activities performed, but in all cases the CBDPP 
must:
    (1) Include formal plans and measures for maintaining exposures to 
beryllium at or below the permissible exposure level prescribed in Sec. 
850.22;
    (2) Satisfy each requirement in subpart C of this part;
    (3) Contain provisions for:
    (i) Minimizing the number of workers exposed and potentially exposed 
to beryllium;
    (ii) Minimizing the number of opportunities for workers to be 
exposed to beryllium;
    (iii) Minimizing the disability and lost work time of workers due to 
chronic beryllium disease, beryllium sensitization and associated 
medical care; and
    (iv) Setting specific exposure reduction and minimization goals that 
are

[[Page 589]]

appropriate for the beryllium activities covered by the CBDPP to further 
reduce exposure below the permissible exposure limit prescribed in Sec. 
850.22.



Sec. 850.12  Implementation.

    (a) The responsible employer must manage and control beryllium 
exposures in all DOE beryllium activities consistent with the approved 
CBDPP.
    (b) No person employed by DOE or a DOE contractor may take or cause 
any action inconsistent with the requirements of:
    (1) This part,
    (2) An approved CBDPP, and
    (3) Any other Federal statute or regulation concerning the exposure 
of workers to beryllium at DOE facilities.
    (c) No task involving potential exposure to airborne beryllium that 
is outside the scope of the existing CBDPP may be initiated until an 
update of the CBDPP is approved by the Head of DOE Field Element, except 
in an unexpected situation and, then, only upon approval of the Head of 
DOE Field Element.
    (d) Nothing in this part precludes a responsible employer from 
taking any additional protective action that it determines to be 
necessary to protect the health and safety of workers.
    (e) Nothing in this part affects the responsibilities of DOE 
officials under the Federal Employee Occupational Safety and Health 
Program (29 CFR part 1960) and related DOE directives.



Sec. 850.13  Compliance.

    (a) The responsible employer must conduct activities in compliance 
with its CBDPP.
    (b) The responsible employer must achieve compliance with all 
elements of its CBDPP no later than January 7, 2002.
    (c) With respect to a particular beryllium activity, the contractor 
in charge of the activity is responsible for complying with this part. 
If no contractor is responsible for a beryllium activity, DOE must 
ensure implementation of, and compliance with, this part.



                 Subpart C_Specific Program Requirements



Sec. 850.20  Baseline beryllium inventory.

    (a) The responsible employer must develop a baseline inventory of 
the locations of beryllium operations and other locations of potential 
beryllium contamination, and identify the workers exposed or potentially 
exposed to beryllium at those locations.
    (b) In conducting the baseline inventory, the responsible employer 
must:
    (1) Review current and historical records;
    (2) Interview workers;
    (3) Document the characteristics and locations of beryllium at the 
facility; and
    (4) Conduct air, surface, and bulk sampling.
    (c) The responsible employer must ensure that:
    (1) The baseline beryllium inventory is managed by a qualified 
individual (e.g., a certified industrial hygienist); and
    (2) The individuals assigned to this task have sufficient knowledge 
and experience to perform such activities properly.



Sec. 850.21  Hazard assessment.

    (a) If the baseline inventory establishes the presence of beryllium, 
the responsible employer must conduct a beryllium hazard assessment that 
includes an analysis of existing conditions, exposure data, medical 
surveillance trends, and the exposure potential of planned activities. 
The exposure determinants, characteristics and exposure potential of 
activities must be prioritized so that the activities with the greatest 
risks of exposure are evaluated first.
    (b) The responsible employer must ensure that:
    (1) The hazard assessment is managed by a qualified individual 
(e.g., a certified industrial hygienist); and
    (2) The individuals assigned to this task have sufficient knowledge 
and experience to perform such activities properly.



Sec. 850.22  Permissible exposure limit.

    The responsible employer must assure that no worker is exposed to an

[[Page 590]]

airborne concentration of beryllium greater than the permissible 
exposure limit established in 29 CFR 1910.1000, as measured in the 
worker's breathing zone by personal monitoring, or a more stringent TWA 
PEL that may be promulgated by the Occupational Safety and Health 
Administration as a health standard.



Sec. 850.23  Action level.

    (a) The responsible employer must include in its CBDPP an action 
level that is no greater than 0.2 [micro]g/m\3\, calculated as an 8-hour 
TWA exposure, as measured in the worker's breathing zone by personal 
monitoring.
    (b) If an airborne concentration of beryllium is at or above the 
action level, the responsible employer must implement Sec. Sec. 
850.24(c) (periodic monitoring), 850.25 (exposure reduction and 
minimization), 850.26 (regulated areas), 850.27 (hygiene facilities and 
practices), 850.28 (respiratory protection), 850.29 (protective clothing 
and equipment), and 850.38 (warning signs) of this part.



Sec. 850.24  Exposure monitoring.

    (a) General. The responsible employer must ensure that:
    (1) Exposure monitoring is managed by a qualified individual (e.g., 
a certified industrial hygienist); and
    (2) The individuals assigned to this task have sufficient industrial 
hygiene knowledge and experience to perform such activities properly.
    (b) Initial monitoring. The responsible employer must perform 
initial monitoring in areas that may have airborne beryllium, as shown 
by the baseline inventory and hazard assessment. The responsible 
employer must apply statistically-based monitoring strategies to obtain 
a sufficient number of sample results to adequately characterize 
exposures, before reducing or terminating monitoring.
    (1) The responsible employer must determine workers' 8-hour TWA 
exposure levels by conducting personal breathing zone sampling.
    (2) Exposure monitoring results obtained within the 12 months 
preceding the effective date of this part may be used to satisfy this 
requirement if the measurements were made as provided in paragraph 
(b)(1) of this section.
    (c) Periodic exposure monitoring. The responsible employer must 
conduct periodic monitoring of workers who work in areas where airborne 
concentrations of beryllium are at or above the action level. The 
monitoring must be conducted in a manner and at a frequency necessary to 
represent workers' exposure, as specified in the CBDPP. This periodic 
exposure monitoring must be performed at least every 3 months 
(quarterly).
    (d) Additional exposure monitoring. The responsible employer must 
perform additional monitoring if operations, maintenance or procedures 
change, or when the responsible employer has any reason to suspect such 
a change has occurred.
    (e) Accuracy of monitoring. The responsible employer must use a 
method of monitoring and analysis that has an accuracy of not less than 
plus or minus 25 percent, with a confidence level of 95 percent, for 
airborne concentrations of beryllium at the action level.
    (f) Analysis. The responsible employer must have all samples 
collected to satisfy the monitoring requirements of this part analyzed 
in a laboratory accredited for metals by the American Industrial Hygiene 
Association (AIHA) or a laboratory that demonstrates quality assurance 
for metals analysis that is equivalent to AIHA accreditation.
    (g) Notification of monitoring results. (1) The responsible employer 
must, within 10 working days after receipt of any monitoring results, 
notify the affected workers of monitoring results in writing. This 
notification of monitoring results must be:
    (i) Made personally to the affected worker; or
    (ii) Posted in location(s) that is readily accessible to the 
affected worker, but in a manner that does not identify the individual 
to other workers.
    (2) If the monitoring results indicate that a worker's exposure is 
at or above the action level, the responsible employer must include in 
the notice:
    (i) A statement that the action level has been met or exceeded; and
    (ii) A description of the corrective action being taken by the 
responsible

[[Page 591]]

employer to reduce the worker's exposure to below the action level, if 
practicable.
    (3) If the monitoring results indicate that worker exposure is at or 
above the action level, the responsible employer must also notify DOE 
and the SOMD of these results within 10 working days after receipt.



Sec. 850.25  Exposure reduction and minimization.

    (a) The responsible employer must ensure that no worker is exposed 
above the exposure limit prescribed in Sec. 850.22.
    (b) The responsible employer must, in addition:
    (1) Where exposure levels are at or above the action level, 
establish a formal exposure reduction and minimization program to reduce 
exposure levels to below the action level, if practicable. This program 
must be described in the responsible employer's CBDPP and must include:
    (i) Annual goals for exposure reduction and minimization;
    (ii) A rationale for and a strategy for meeting the goals;
    (iii) Actions that will be taken to achieve the goals; and
    (iv) A means of tracking progress towards meeting the goals or 
demonstrating that the goals have been met.
    (2) Where exposure levels are below the action level, implement 
actions for reducing and minimizing exposures, if practicable. The 
responsible employer must include in the CBDPP a description of the 
steps to be taken for exposure reduction and minimization and a 
rationale for those steps.
    (c) The responsible employer must implement exposure reduction and 
minimization actions using the conventional hierarchy of industrial 
hygiene controls (i.e., engineering controls, administrative controls, 
and personal protective equipment in that order).



Sec. 850.26  Regulated areas.

    (a) If airborne concentrations of beryllium in areas in DOE 
facilities are measured at or above the action level, the responsible 
employer must establish regulated areas for those areas.
    (b) The responsible employer must demarcate regulated areas from the 
rest of the workplace in a manner that adequately alerts workers to the 
boundaries of such areas.
    (c) The responsible employer must limit access to regulated areas to 
authorized persons.
    (d) The responsible employer must keep records of all individuals 
who enter regulated areas. These records must include the name, date, 
time in and time out, and work activity.



Sec. 850.27  Hygiene facilities and practices.

    (a) General. The responsible employer must assure that in areas 
where workers are exposed to beryllium at or above the action level, 
without regard to the use of respirators:
    (1) Food or beverage and tobacco products are not used;
    (2) Cosmetics are not applied, except in change rooms or areas and 
shower facilities required under paragraphs (b) and (c) of this section; 
and
    (3) Beryllium workers are prevented from exiting areas that contain 
beryllium with contamination on their bodies or their personal clothing.
    (b) Change rooms or areas. The responsible employer must provide 
clean change rooms or areas for beryllium workers who work in regulated 
areas.
    (1) Separate facilities free of beryllium must be provided for 
beryllium workers to change into, and store, personal clothing, and 
clean protective clothing and equipment to prevent cross-contamination;
    (2) The change rooms or areas that are used to remove beryllium-
contaminated clothing and protective equipment must be maintained under 
negative pressure or located so as to minimize dispersion of beryllium 
into clean areas; and
    (c) Showers and handwashing facilities. (1) The responsible employer 
must provide handwashing and shower facilities for beryllium workers who 
work in regulated areas.
    (2) The responsible employer must assure that beryllium workers who 
work in regulated areas shower at the end of the work shift.
    (d) Lunchroom facilities. (1) The responsible employer must provide

[[Page 592]]

lunchroom facilities that are readily accessible to beryllium workers, 
and ensure that tables for eating are free of beryllium, and that no 
worker in a lunchroom facility is exposed at any time to beryllium at or 
above the action level.
    (2) The responsible employer must assure that beryllium workers do 
not enter lunchroom facilities with protective work clothing or 
equipment unless the surface beryllium has been removed from clothing 
and equipment by HEPA vacuuming or other method that removes beryllium 
without dispersing it.
    (e) The change rooms or areas, shower and handwashing facilities, 
and lunchroom facilities must comply with 29 CFR 1910.141, Sanitation.



Sec. 850.28  Respiratory protection.

    (a) The responsible employer must establish a respiratory protection 
program that complies with the respiratory protection program 
requirements of 29 CFR 1910.134, Respiratory Protection.
    (b) The responsible employer must provide respirators to, and ensure 
that they are used by, all workers who:
    (1) Are exposed to an airborne concentration of beryllium at or 
above the action level, or
    (2) Are performing tasks for which analyses indicate the potential 
for exposures at or above the action level.
    (c) The responsible employer must include in the respiratory 
protection program any beryllium-associated worker who requests to use a 
respirator for protection against airborne beryllium, regardless of 
measured exposure levels.
    (d) The responsible employer must select for use by workers:
    (1) Respirators approved by the National Institute for Occupational 
Safety and Health (NIOSH) if NIOSH-approved respirators exist for a 
specific DOE task; or
    (2) Respirators that DOE has accepted under the DOE Respiratory 
Protection Acceptance Program if NIOSH-approved respirators do not exist 
for specific DOE tasks.



Sec. 850.29  Protective clothing and equipment.

    (a) The responsible employer must provide protective clothing and 
equipment to beryllium workers and ensure its appropriate use and 
maintenance, where dispersible forms of beryllium may contact worker's 
skin, enter openings in workers' skin, or contact workers' eyes, 
including where:
    (1) Exposure monitoring has established that airborne concentrations 
of beryllium are at or above the action level;
    (2) Surface contamination levels measured or presumed prior to 
initiating work are above the level prescribed in Sec. 850.30;
    (3) Surface contamination levels results obtained to confirm 
housekeeping efforts are above the level prescribed in Sec. 850.30; and
    (4) Any beryllium-associated worker who requests the use of 
protective clothing and equipment for protection against airborne 
beryllium, regardless of measured exposure levels.
    (b) The responsible employer must comply with 29 CFR 1910.132, 
Personal Protective Equipment General Requirements, when workers use 
personal protective clothing and equipment.
    (c) The responsible employer must establish procedures for donning, 
doffing, handling, and storing protective clothing and equipment that:
    (1) Prevent beryllium workers from exiting areas that contain 
beryllium with contamination on their bodies or their personal clothing; 
and
    (2) Include beryllium workers exchanging their personal clothing for 
full-body protective clothing and footwear before they begin work in 
regulated areas.
    (d) The responsible employer must ensure that no worker removes 
beryllium-contaminated protective clothing and equipment from areas that 
contain beryllium, except for workers authorized to launder, clean, 
maintain, or dispose of the clothing and equipment.
    (e) The responsible employer must prohibit the removal of beryllium 
from protective clothing and equipment by blowing, shaking, or other 
means that may disperse beryllium into the air.
    (f) The responsible employer must ensure that protective clothing 
and

[[Page 593]]

equipment is cleaned, laundered, repaired, or replaced as needed to 
maintain effectiveness. The responsible employer must:
    (1) Ensure that beryllium-contaminated protective clothing and 
equipment, when removed for laundering, cleaning, maintenance, or 
disposal, is placed in containers that prevent the dispersion of 
beryllium dust and that are labeled in accordance with Sec. 850.38 of 
this part; and
    (2) Inform organizations that launder or clean DOE beryllium-
contaminated protective clothing or equipment that exposure to beryllium 
is potentially harmful, and that clothing and equipment should be 
laundered or cleaned in a manner prescribed by the responsible employer 
to prevent the release of airborne beryllium.



Sec. 850.30  Housekeeping.

    (a) Where beryllium is present in operational areas of DOE 
facilities, the responsible employer must conduct routine surface 
sampling to determine housekeeping conditions. Surfaces contaminated 
with beryllium dusts and waste must not exceed a removable contamination 
level of 3 [micro]g/100 cm\2\ during non-operational periods. This 
sampling would not include the interior of installed closed systems such 
as enclosures, glove boxes, chambers, or ventilation systems.
    (b) When cleaning floors and surfaces in areas where beryllium is 
present at DOE facilities, the responsible employer must clean 
beryllium-contaminated floors and surfaces using a wet method, vacuuming 
or other cleaning methods, such as sticky tack cloths, that avoid the 
production of airborne dust. Compressed air or dry methods must not be 
used for such cleaning.
    (c) The responsible employer must equip the portable or mobile 
vacuum units that are used to clean beryllium-contaminated areas with 
HEPA filters, and change the filters as often as needed to maintain 
their capture efficiency.
    (d) The responsible employer must ensure that the cleaning equipment 
that is used to clean beryllium-contaminated surfaces is labeled, 
controlled, and not used for non-hazardous materials.



Sec. 850.31  Release criteria.

    (a) The responsible employer must clean beryllium-contaminated 
equipment and other items to the lowest contamination level practicable, 
but not to exceed the levels established in paragraphs (b) and (c) of 
this section, and label the equipment or other items, before releasing 
them to the general public or a DOE facility for non-beryllium use, or 
to another facility for work involving beryllium.
    (b) Before releasing beryllium-contaminated equipment or other items 
to the general public or for use in a non-beryllium area of a DOE 
facility, the responsible employer must ensure that:
    (1) The removable contamination level of equipment or item surfaces 
does not exceed the higher of 0.2 [micro]g/100 cm \2\ or the 
concentration level of beryllium in soil at the point or release, 
whichever is greater;
    (2) The equipment or item is labeled in accordance with Sec. 
850.38(b); and
    (3) The release is conditioned on the recipient's commitment to 
implement controls that will prevent foreseeable beryllium exposure, 
considering the nature of the equipment or item and its future use and 
the nature of the beryllium contamination.
    (c) Before releasing beryllium-contaminated equipment or other items 
to another facility performing work with beryllium, the responsible 
employer must ensure that:
    (1) The removable contamination level of equipment or item surfaces 
does not exceed 3 [micro]g/100 cm \2\;
    (2) The equipment or item is labeled in accordance with Sec. 
850.38(b); and
    (3) The equipment or item is enclosed or placed in sealed, 
impermeable bags or containers to prevent the release of beryllium dust 
during handling and transportation.



Sec. 850.32  Waste disposal.

    (a) The responsible employer must control the generation of 
beryllium-containing waste, and beryllium-contaminated equipment and 
other items that are disposed of as waste, through the application of 
waste minimization principles.
    (b) Beryllium-containing waste, and beryllium-contaminated equipment 
and other items that are disposed of as

[[Page 594]]

waste, must be disposed of in sealed, impermeable bags, containers, or 
enclosures to prevent the release of beryllium dust during handling and 
transportation. The bags, containers, and enclosures that are used for 
disposal of beryllium waste must be labeled according to Sec. 850.38.



Sec. 850.33  Beryllium emergencies.

    (a) The responsible employer must comply with 29 CFR 1910.120(l) for 
handling beryllium emergencies related to decontamination and 
decommissioning operations.
    (b) The responsible employer must comply with 29 CFR 1910.120(q) for 
handling beryllium emergencies related to all other operations.



Sec. 850.34  Medical surveillance.

    (a) General. (1) The responsible employer must establish and 
implement a medical surveillance program for beryllium-associated 
workers who voluntarily participate in the program.
    (2) The responsible employer must designate a Site Occupational 
Medical Director (SOMD) who is responsible for administering the medical 
surveillance program.
    (3) The responsible employer must ensure that the medical 
evaluations and procedures required by this section are performed by, or 
under the supervision of, a licensed physician who is familiar with the 
health effects of beryllium.
    (4) The responsible employer must establish, and maintain, a list of 
beryllium-associated workers who may be eligible for protective measures 
under this part. The list must be:
    (i) Based on the hazard assessment, exposure records, and other 
information regarding the identity of beryllium-associated workers; and
    (ii) Adjusted at regular intervals based on periodic evaluations of 
beryllium-associated workers performed under paragraph (b)(2) of this 
section;
    (5) The responsible employer must provide the SOMD with the 
information needed to operate and administer the medical surveillance 
program, including the:
    (i) List of beryllium-associated workers required by paragraph 
(a)(4) of this section;
    (ii) Baseline inventory;
    (iii) Hazard assessment and exposure monitoring data;
    (iv) Identity and nature of activities or operations on the site 
that are covered under the CBDPP, related duties of beryllium-associated 
workers; and
    (v) Type of personal protective equipment used.
    (6) The responsible employer must provide the following information 
to the SOMD and the examining physician:
    (i) A copy of this rule and its preamble;
    (ii) A description of the worker's duties as they pertain to 
beryllium exposure;
    (iii) Records of the worker's beryllium exposure; and
    (iv) A description of the personal protective and respiratory 
protective equipment used by the worker in the past, present, or 
anticipated future use.
    (b) Medical evaluations and procedures. The responsible employer 
must provide, to beryllium-associated workers who voluntarily 
participate in the medical surveillance program, the medical evaluations 
and procedures required by this section at no cost and at a time and 
place that is reasonable and convenient to the worker.
    (1) Baseline medical evaluation. The responsible employer must 
provide a baseline medical evaluation to beryllium-associated workers. 
This evaluation must include:
    (i) A detailed medical and work history with emphasis on past, 
present, and anticipated future exposure to beryllium;
    (ii) A respiratory symptoms questionnaire;
    (iii) A physical examination with special emphasis on the 
respiratory system, skin and eyes;
    (iv) A chest radiograph (posterior-anterior, 14 x 17 inches) 
interpreted by a National Institute for Occupational Safety and Health 
(NIOSH) B-reader of pneumoconiosis or a board-certified radiologist 
(unless a baseline chest radiograph is already on file);
    (v) Spirometry consisting of forced vital capacity (FVC) and forced 
expiratory volume at 1 second (FEV1);
    (vi) A Be-LPT; and

[[Page 595]]

    (vii) Any other tests deemed appropriate by the examining physician 
for evaluating beryllium-related health effects.
    (2) Periodic evaluation. (i) The responsible employer must provide 
to beryllium workers a medical evaluation annually, and to other 
beryllium-associated workers a medical evaluation every three years. The 
periodic medical evaluation must include:
    (A) A detailed medical and work history with emphasis on past, 
present, and anticipated future exposure to beryllium;
    (B) A respiratory symptoms questionnaire;
    (C) A physical examination with emphasis on the respiratory system;
    (D) A Be-LPT; and
    (E) Any other medical evaluations deemed appropriate by the 
examining physician for evaluating beryllium-related health effects.
    (ii) The responsible employer must provide to beryllium-associated 
workers a chest radiograph every five years.
    (3) Emergency evaluation. The responsible employer must provide a 
medical evaluation as soon as possible to any worker who may have been 
exposed to beryllium because of a beryllium emergency. The medical 
evaluation must include the requirements of paragraph (b)(2) of this 
section.
    (c) Multiple physician review. The responsible employer must 
establish a multiple physician review process for beryllium-associated 
workers that allows for the review of initial medical findings, 
determinations, or recommendations from any medical evaluation conducted 
pursuant to paragraph (b) of this section.
    (1) If the responsible employer selects the initial physician to 
conduct any medical examination or consultation provided to a beryllium-
associated worker, the worker may designate a second physician to:
    (i) Review any findings, determinations, or recommendations of the 
initial physician; and
    (ii) Conduct such examinations, consultations and laboratory tests, 
as the second physician deems necessary to facilitate this review.
    (2) The responsible employer must promptly notify a beryllium-
associated worker in writing of the right to seek a second medical 
opinion after the initial physician provided by the responsible employer 
conducts a medical examination or consultation.
    (3) The responsible employer may condition its participation in, and 
payment for, multiple physician review upon the beryllium-associated 
worker doing the following within fifteen (15) days after receipt of the 
notice, or receipt of the initial physician's written opinion, whichever 
is later:
    (i) Informing the responsible employer in writing that he or she 
intends to seek a second medical opinion; and
    (ii) Initiating steps to make an appointment with a second 
physician.
    (4) If the findings, determinations, or recommendations of the 
second physician differ from those of the initial physician, then the 
responsible employer and the beryllium-associated worker must make 
efforts to encourage and assist the two physicians to resolve any 
disagreement.
    (5) If, despite the efforts of the responsible employer and the 
beryllium-associated worker, the two physicians are unable to resolve 
their disagreement, then the responsible employer and the worker, 
through their respective physicians, must designate a third physician 
to:
    (i) Review any findings, determinations, or recommendations of the 
other two physicians; and
    (ii) Conduct such examinations, consultations, laboratory tests, and 
consultations with the other two physicians, as the third physician 
deems necessary to resolve the disagreement among them.
    (6) The SOMD must act consistently with the findings, 
determinations, and recommendations of the third physician, unless the 
SOMD and the beryllium-associated worker reach an agreement that is 
consistent with the recommendations of at least one of the other two 
physicians.
    (d) Alternate physician determination. The responsible employer and 
the beryllium-associated worker or the worker's designated 
representative may agree upon the use of any alternate form of physician 
determination in lieu of the multiple physician review process provided 
by paragraph (c) of this

[[Page 596]]

section, so long as the alternative is expeditious and at least as 
protective of the worker.
    (e) Written medical opinion and recommendation. (1) Within two weeks 
of receipt of results, the SOMD must provide to the responsible employer 
a written, signed medical opinion for each medical evaluation performed 
on each beryllium-associated worker. The written opinion must take into 
account the findings, determinations and recommendations of the other 
examining physicians who may have examined the beryllium-associated 
worker. The SOMD's opinion must contain:
    (i) The diagnosis of the worker's condition relevant to occupational 
exposure to beryllium, and any other medical condition that would place 
the worker at increased risk of material impairment to health from 
further exposure to beryllium;
    (ii) Any recommendation for removal of the worker from DOE beryllium 
activities, or limitation on the worker's activities or duties or use of 
personal protective equipment, such as a respirator; and
    (iii) A statement that the SOMD or examining physician has clearly 
explained to the worker the results of the medical evaluation, including 
all tests results and any medical condition related to beryllium 
exposure that requires further evaluation or treatment.
    (2) The SOMD's written medical opinion must not reveal specific 
records, findings, and diagnoses that are not related to medical 
conditions that may be affected by beryllium exposure.
    (f) Information provided to the beryllium-associated worker. (1) The 
SOMD must provide each beryllium-associated worker with a written 
medical opinion containing the results of all medical tests or 
procedures, an explanation of any abnormal findings, and any 
recommendation that the worker be referred for additional testing for 
evidence of CBD, within 10 working days after the SOMD's receipt of the 
results of the medical tests or procedures.
    (2) The responsible employer must, within 30 days after a request by 
a beryllium-associated worker, provide the worker with the information 
the responsible employer is required to provide the examining physician 
under paragraph (a)(6) of this section.
    (g) Reporting. The responsible employer must report on the 
applicable OSHA reporting form beryllium sensitization, CBD, or any 
other abnormal condition or disorder of workers caused or aggravated by 
occupational exposure to beryllium.
    (h) Data analysis. (1) The responsible employer must routinely and 
systematically analyze medical, job, and exposure data with the aim of 
identifying individuals or groups of individuals potentially at risk for 
CBD and working conditions that are contributing to that risk.
    (2) The responsible employer must use the results of these analyses 
to identify additional workers to whom the responsible employer must 
provide medical surveillance and to determine the need for additional 
exposure controls.



Sec. 850.35  Medical removal.

    (a) Medical removal protection. The responsible employer must offer 
a beryllium-associated worker medical removal from exposure to beryllium 
if the SOMD determines in a written medical opinion that it is medically 
appropriate to remove the worker from such exposure. The SOMD's 
determination must be based on one or more positive Be-LPT results, 
chronic beryllium disease diagnosis, an examining physician's 
recommendation, or any other signs or symptoms that the SOMD deems 
medically sufficient to remove a worker.
    (1) Temporary removal pending final medical determination. The 
responsible employer must offer a beryllium-associated worker temporary 
medical removal from exposure to beryllium on each occasion that the 
SOMD determines in a written medical opinion that the worker should be 
temporarily removed from such exposure pending a final medical 
determination of whether the worker should be removed permanently.
    (i) In this section, ``final medical determination'' means the 
outcome of the multiple physician review process or the alternate 
medical determination process provided for in paragraphs (c) and (d) of 
Sec. 850.34.

[[Page 597]]

    (ii) If a beryllium-associated worker is temporarily removed from 
beryllium exposure pursuant to this section, the responsible employer 
must transfer the worker to a comparable job for which the worker is 
qualified (or for which the worker can be trained in a short period) and 
where beryllium exposures are as low as possible, but in no event at or 
above the action level.
    (iii) The responsible employer must maintain the beryllium-
associated worker's total normal earnings, seniority, and other worker 
rights and benefits as if the worker had not been removed.
    (iv) If there is no such job available, the responsible employer 
must provide to the beryllium-associated worker the medical removal 
protection benefits specified in paragraph (b)(2) of this section, until 
a job becomes available or for one year, whichever comes first.
    (2) Permanent medical removal. (i) The responsible employer must 
offer a beryllium-associated worker permanent medical removal from 
exposure to beryllium if the SOMD determines in a written medical 
opinion that the worker should be permanently removed from exposure to 
beryllium.
    (ii) If a beryllium-associated worker is removed permanently from 
beryllium exposure based on the SOMD's recommendation pursuant to this 
section, the responsible employer must provide the worker the medical 
removal protection benefits specified in paragraph (b) of this section.
    (3) Worker consultation before temporary or permanent medical 
removal. If the SOMD determines that a beryllium-associated worker 
should be temporarily or permanently removed from exposure to beryllium, 
the SOMD must:
    (i) Advise the beryllium-associated worker of the determination that 
medical removal is necessary to protect the worker's health;
    (ii) Provide the beryllium-associated worker with a copy of this 
rule and its preamble, and any other information the SOMD deems 
necessary on the risks of continued exposure to beryllium and the 
benefits of removal;
    (iii) Provide the beryllium-associated worker the opportunity to 
have any questions concerning medical removal answered; and
    (iv) Obtain the beryllium-associated worker's signature 
acknowledging that the worker has been advised to accept medical removal 
from beryllium exposure as provided in this section, and has been 
provided with the information specified in this paragraph, on the 
benefits of removal and the risks of continued exposure to beryllium.
    (4) Return to work after medical removal. (i) The responsible 
employer, subject to paragraph (a)(4)(ii) of this section, must not 
return a beryllium-associated worker who has been permanently removed 
under this section to the worker's former job status unless the SOMD 
first determines in a written medical opinion that continued medical 
removal is no longer necessary to protect the worker's health.
    (ii) Not withstanding paragraph (a)(4) (i) of this section, if, in 
the SOMD's opinion, continued exposure to beryllium will not pose an 
increased risk to the beryllium-associated worker's health, and medical 
removal is an inappropriate remedy in the circumstances, the SOMD must 
fully discuss these matters with the worker and then, in a written 
determination, may authorize the responsible employer to return the 
worker to his or her former job status. Thereafter, the returned 
beryllium-associated worker must continue to be provided with medical 
surveillance under Sec. 850.34 of this part.
    (b) Medical removal protection benefits. (1) If a beryllium-
associated worker has been permanently removed from beryllium exposure 
pursuant to paragraph (a)(2) of this section, the responsible employer 
must provide the beryllium-associated worker:
    (i) The opportunity to transfer to another position which is 
available, or later becomes available, for which the beryllium-
associated worker is qualified (or for which the worker can be trained 
in a short period) and where beryllium exposures are as low as possible, 
but in no event at or above the action level; or
    (ii) If the beryllium-associated worker cannot be transferred to a 
comparable job where beryllium exposures are below the action level, a 
maximum

[[Page 598]]

of 2 years of permanent medical removal protection benefits (specified 
in paragraph (b)(2) of this section).
    (2) If required by this section to provide medical removal 
protection benefits, the responsible employer must maintain the removed 
worker's total normal earnings, seniority and other worker rights and 
benefits, as though the worker had not been removed.
    (3) If a removed beryllium-associated worker files a claim for 
workers' compensation payments for a beryllium-related disability, then 
the responsible employer must continue to provide medical removal 
protection benefits pending disposition of the claim. The responsible 
employer must receive no credit for the workers' compensation payments 
received by the worker for treatment related expenses.
    (4) The responsible employer's obligation to provide medical removal 
protection benefits to a removed beryllium-associated worker is reduced 
to the extent that the worker receives compensation for earnings lost 
during the period of removal either from a publicly- or employer-funded 
compensation program, or from employment with another employer made 
possible by virtue of the worker's removal.
    (5) For the purposes of this section, the requirement that a 
responsible employer provide medical removal protection benefits is not 
intended to expand upon, restrict, or change any rights to a specific 
job classification or position under the terms of an applicable 
collective bargaining agreement.
    (6) The responsible employer may condition the provision of medical 
removal protection benefits upon the beryllium-associated worker's 
participation in medical surveillance provided in accordance with Sec. 
850.34 of this part.



Sec. 850.36  Medical consent.

    (a) The responsible employer must provide each beryllium-associated 
worker with a summary of the medical surveillance program established in 
Sec. 850.34 at least one week before the first medical evaluation or 
procedure or at any time requested by the worker. This summary must 
include:
    (1) The type of data that will be collected in the medical 
surveillance program;
    (2) How the data will be collected and maintained;
    (3) The purpose for which the data will be used; and
    (4) A description of how confidential data will be protected.
    (b) Responsible employers must also provide each beryllium-
associated worker with information on the benefits and risks of the 
medical tests and examinations available to the worker at least one week 
prior to any such examination or test, and an opportunity to have the 
worker's questions answered.
    (c) The responsible employer must have the SOMD obtain a beryllium-
associated worker's signature on the informed consent form found in 
Appendix A to this part, before performing medical evaluations or any 
tests.



Sec. 850.37  Training and counseling.

    (a) The responsible employer must develop and implement a beryllium 
training program and ensure participation for:
    (1) Beryllium-associated workers;
    (2) All other individuals who work at a site where beryllium 
activities are conducted.
    (b) The training provided for workers identified in paragraph (a)(1) 
of this section, must:
    (1) Be in accordance with 29 CFR 1910.1200, Hazard Communication;
    (2) Include the contents of the CBDPP; and
    (3) Include potential health risks to beryllium worker family 
members and others who may come in contact with beryllium on beryllium 
workers or beryllium workers' personal clothing or other personal items 
as the result of a beryllium control failure at a DOE facility.
    (c) The training provided for workers identified in paragraph (a)(2) 
of this section must consist of general awareness about beryllium 
hazards and controls.
    (d) The responsible employer must provide the training required by 
this section before or at the time of initial assignment and at least 
every two years thereafter.
    (e) The employer must provide retraining when the employer has 
reason to believe that a beryllium worker

[[Page 599]]

lacks the proficiency, knowledge, or understanding needed to work safely 
with beryllium, including at least the following situations:
    (1) To address any new beryllium hazards resulting from a change to 
operations, procedures, or beryllium controls about which the beryllium 
worker was not previously trained; and
    (2) If a beryllium worker's performance involving beryllium work 
indicates that the worker has not retained the requisite proficiency.
    (f) The responsible employer must develop and implement a counseling 
program to assist beryllium-associated workers who are diagnosed by the 
SOMD to be sensitized to beryllium or to have CBD. This counseling 
program must include communicating with beryllium-associated workers 
concerning:
    (1) The medical surveillance program provisions and procedures;
    (2) Medical treatment options;
    (3) Medical, psychological, and career counseling;
    (4) Medical benefits;
    (5) Administrative procedures and workers rights under applicable 
Workers' Compensation laws and regulations;
    (6) Work practice procedures limiting beryllium-associated worker 
exposure to beryllium; and
    (7) The risk of continued beryllium exposure after sensitization.



Sec. 850.38  Warning signs and labels.

    (a) Warning signs. The responsible employer must post warning signs 
at each access point to a regulated area with the following information:

DANGER
BERYLLIUM CAN CAUSE LUNG DAMAGE
CANCER HAZARD
AUTHORIZED PERSONNEL ONLY

    (b) Warning labels. (1) The responsible employer must affix warning 
labels to all containers of beryllium, beryllium compounds, or 
beryllium-contaminated clothing, equipment, waste, scrap, or debris.
    (2) Warning labels must contain the following information:

DANGER
CONTAMINATED WITH BERYLLIUM
DO NOT REMOVE DUST BY BLOWING OR SHAKING
CANCER AND LUNG DISEASE HAZARD

    (c) Warning signs and labels must be in accordance with 29 CFR 
1910.1200, Hazard Communication.



Sec. 850.39  Recordkeeping and use of information.

    (a) The responsible employer must establish and maintain accurate 
records of all beryllium inventory information, hazard assessments, 
exposure measurements, exposure controls, and medical surveillance.
    (b) Heads of DOE Departmental Elements must:
    (1) Designate all record series as required under this rule as 
agency records and, therefore, subject to all applicable agency records 
management and access laws; and
    (2) Ensure that these record series are retained for a minimum of 
seventy-five years.
    (c) The responsible employer must convey to DOE or its designee all 
record series required under this rule if the employer ceases to be 
involved in the CBDPP.
    (d) The responsible employer must link data on workplace conditions 
and health outcomes in order to establish a basis for understanding the 
beryllium health risk.
    (e) The responsible employer must ensure the confidentiality of all 
work-related records generated under this rule by ensuring that:
    (1) All records that are transmitted to other parties do not contain 
names, social security numbers or any other variables, or combination of 
variables, that could be used to identify particular individuals; and
    (2) Individual medical information generated by the CBDPP is:
    (i) Either included as part of the worker's site medical records and 
maintained by the SOMD, or is maintained by another physician designated 
by the responsible employer;
    (ii) Maintained separately from other records; and
    (iii) Used or disclosed by the responsible employer only in 
conformance with any applicable requirements imposed by the Americans 
with Disabilities Act, the Privacy Act of 1974, the Freedom of 
Information Act, and any other applicable law.

[[Page 600]]

    (f) The responsible employer must maintain all records required by 
this part in current and accessible electronic systems, which include 
the ability readily to retrieve data in a format that maintains 
confidentiality.
    (g) The responsible employer must transmit all records generated as 
required by this rule, in a format that protects the confidentiality of 
individuals, to the DOE Chief Health, Safety and Security Officer on 
request.
    (h) The responsible employer must semi-annually transmit to the 
Office of Illness and Injury Prevention Programs, Office of Health, 
Safety and Security an electronic registry of beryllium-associated 
workers that protects confidentiality, and the registry must include, 
but is not limited to, a unique identifier, date of birth, gender, site, 
job history, medical screening test results, exposure measurements, and 
results of referrals for specialized medical evaluations.

[64 FR 68905, Dec. 8, 1999, as amended at 71 FR 68733, Nov. 28, 2006]



Sec. 850.40  Performance feedback.

    (a) The responsible employer must conduct periodic analyses and 
assessments of monitoring activities, hazards, medical surveillance, 
exposure reduction and minimization, and occurrence reporting data.
    (b) To ensure that information is available to maintain and improve 
all elements of the CBDPP continuously, the responsible employer must 
give results of periodic analyses and assessments to the line managers, 
planners, worker protection staff, workers, medical staff, and labor 
organizations representing beryllium-associated workers who request such 
information.



   Sec. Appendix A to Part 850--Chronic Beryllium Disease Prevention 
                      Program Informed Consent Form

    I, -------------- have carefully read and understand the attached 
information about the Be-LPT and other medical tests. I have had the 
opportunity to ask any questions that I may have had concerning these 
tests.
    I understand that this program is voluntary and I am free to 
withdraw at any time from all or any part of the medical surveillance 
program. I understand that the tests are confidential, but not 
anonymous. I understand that if the results of any test suggest a health 
problem, the examining physician will discuss the matter with me, 
whether or not the result is related to my work with beryllium. I 
understand that my employer will be notified of my diagnosis only if I 
have a beryllium sensitization or chronic beryllium disease. My employer 
will not receive the results or diagnoses of any health conditions not 
related to beryllium exposure.
    I understand that, if the results of one or more of these tests 
indicate that I have a health problem that is related to beryllium, 
additional examinations will be recommended. If additional tests 
indicate I do have a beryllium sensitization or CBD, the Site 
Occupational Medical Director may recommend that I be removed from 
working with beryllium. If I agree to be removed, I understand that I 
may be transferred to another job for which I am qualified (or can be 
trained for in a short period) and where my beryllium exposures will be 
as low as possible, but in no case above the action level. I will 
maintain my total normal earnings, seniority, and other benefits for up 
to two years if I agree to be permanently removed.
    I understand that if I apply for another job or for insurance, I may 
be requested to release my medical records to a future employer or an 
insurance company.
    I understand that my employer will maintain all medical information 
relative to the tests performed on me in segregated medical files 
separate from my personnel files, treated as confidential medical 
records, and used or disclosed only as provided by the Americans with 
Disability Act, the Privacy Act of 1974, or as required by a court order 
or under other law.
    I understand that the results of my medical tests for beryllium will 
be included in the Beryllium Registry maintained by DOE, and that a 
unique identifier will be used to maintain the confidentiality of my 
medical information. Personal identifiers will not be included in any 
reports generated from the DOE Beryllium Registry. I understand that the 
results of my tests and examinations may be published in reports or 
presented at meetings, but that I will not be identified.
    I consent to having the following medical evaluations:

/ / Physical examination concentrating on my lungs and breathing
/ / Chest X-ray
/ / Spirometry (a breathing test)
/ / Blood test called the beryllium-induced lymphocyte proliferation 
test or Be-LPT
/ / Other test(s). Specify:
________________________________________________________________________

Signature of Participant:
________________________________________________________________________

Date: ------------


[[Page 601]]


    I have explained and discussed any questions that the employee 
expressed concerning the Be-LPT, physical examination, and other medical 
testing as well as the implications of those tests.

Name of Examining Physician:
________________________________________________________________________

Signature of Examining Physician:
________________________________________________________________________

Dated: ------------



PART 851_WORKER SAFETY AND HEALTH PROGRAM--Table of Contents



                      Subpart A_General Provisions

Sec.
851.1 Scope and purpose.
851.2 Exclusions.
851.3 Definitions.
851.4 Compliance order.
851.5 Enforcement.
851.6 Petitions for generally applicable rulemaking.
851.7 Request for a binding interpretive ruling.
851.8 Informal requests for information.

                     Subpart B_Program Requirements

851.10 General requirements.
851.11 Development and approval of worker safety and health program.
851.12 Implementation.
851.13 Compliance.

                 Subpart C_Specific Program Requirements

851.20 Management responsibilities and worker rights and 
          responsibilities.
851.21 Hazard identification and assessment.
851.22 Hazard prevention and abatement.
851.23 Safety and health standards.
851.24 Functional areas.
851.25 Training and information.
851.26 Recordkeeping and reporting.
851.27 Reference sources.

                           Subpart D_Variances

851.30 Consideration of variances.
851.31 Variance process.
851.32 Action on variance requests.
851.33 Terms and conditions.
851.34 Requests for conferences.

                      Subpart E_Enforcement Process

851.40 Investigations and inspections.
851.41 Settlement.
851.42 Preliminary notice of violation.
851.43 Final notice of violation.
851.44 Administrative appeal.
851.45 Direction to NNSA contractors.

Appendix A to Part 851--Worker Safety and Health Functional Areas
Appendix B to Part 851--General Statement of Enforcement Policy

    Authority: 42 U.S.C. 2201(i)(3), (p); 42 U.S.C. 2282c; 42 U.S.C. 
5801 et seq.; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.

    Source: 71 FR 6931, Feb. 9, 2006, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 851.1  Scope and purpose.

    (a) The worker safety and health requirements in this part govern 
the conduct of contractor activities at DOE sites.
    (b) This part establishes the:
    (1) Requirements for a worker safety and health program that reduces 
or prevents occupational injuries, illnesses, and accidental losses by 
providing DOE contractors and their workers with safe and healthful 
workplaces at DOE sites; and
    (2) Procedures for investigating whether a violation of a 
requirement of this part has occurred, for determining the nature and 
extent of any such violation, and for imposing an appropriate remedy.



Sec. 851.2  Exclusions.

    (a) This part does not apply to work at a DOE site:
    (1) Regulated by the Occupational Safety and Health Administration; 
or
    (2) Operated under the authority of the Director, Naval Nuclear 
Propulsion, pursuant to Executive Order 12344, as set forth in Public 
Law 98-525, 42 U.S.C. 7158 note.
    (b) This part does not apply to radiological hazards or nuclear 
explosives operations to the extent regulated by 10 CFR Parts 20, 820, 
830 or 835.
    (c) This part does not apply to transportation to or from a DOE 
site.



Sec. 851.3  Definitions.

    (a) As used in this part:
    AEA means the Atomic Energy Act of 1954, 42 U.S.C. 2011 et seq.
    Affected worker means a worker who would be affected by the granting 
or denial of a variance, or any authorized representative of the worker, 
such as a collective bargaining agent.

[[Page 602]]

    Closure facility means a facility that is non-operational and is, or 
is expected to be permanently closed and/or demolished, or title to 
which is expected to be transferred to another entity for reuse.
    Closure facility hazard means a facility-related condition within a 
closure facility involving deviations from the technical requirements of 
Sec. 851.23 of this part that would require costly and extensive 
structural/engineering modifications to be in compliance.
    Cognizant Secretarial Officer means, with respect to a particular 
situation, the Assistant Secretary, Deputy Administrator, Program Office 
Director, or equivalent DOE official who has primary line management 
responsibility for a contractor, or any other official to whom the CSO 
delegates in writing a particular function under this part.
    Compliance order means an order issued by the Secretary to a 
contractor that mandates a remedy, work stoppage, or other action to 
address a situation that violates, potentially violates, or otherwise is 
inconsistent with a requirement of this part.
    Consent order means any written document, signed by the Director and 
a contractor, containing stipulations or conclusions of fact or law and 
a remedy acceptable to both DOE and the contractor.
    Construction means combination of erection, installation, assembly, 
demolition, or fabrication activities involved to create a new facility 
or to alter, add to, rehabilitate, dismantle, or remove an existing 
facility. It also includes the alteration and repair (including 
dredging, excavating, and painting) of buildings, structures, or other 
real property, as well as any construction, demolition, and excavation 
activities conducted as part of environmental restoration or remediation 
efforts.
    Construction contractor means the lowest tiered contractor with 
primary responsibility for the execution of all construction work 
described within a construction procurement or authorization document 
(e.g., construction contract, work order).
    Construction manager means the individual or firm responsible to DOE 
for the supervision and administration of a construction project to 
ensure the construction contractor's compliance with construction 
project requirements.
    Construction project means the full scope of activities required on 
a construction worksite to fulfill the requirements of the construction 
procurement or authorization document.
    Construction worksite is the area within the limits necessary to 
perform the work described in the construction procurement or 
authorization document. It includes the facility being constructed or 
renovated along with all necessary staging and storage areas as well as 
adjacent areas subject to project hazards.
    Contractor means any entity, including affiliated entities, such as 
a parent corporation, under contract with DOE, or a subcontractor at any 
tier, that has responsibilities for performing work at a DOE site in 
furtherance of a DOE mission.
    Covered workplace means a place at a DOE site where a contractor is 
responsible for performing work in furtherance of a DOE mission.
    Director means a DOE Official to whom the Secretary assigns the 
authority to investigate the nature and extent of compliance with the 
requirements of this part.
    DOE means the United States Department of Energy, including the 
National Nuclear Security Administration.
    DOE Enforcement Officer means a DOE official to whom the Director 
assigns the authority to investigate the nature and extent of compliance 
with the requirements of this part.
    DOE site means a DOE-owned or -leased area or location or other area 
or location controlled by DOE where activities and operations are 
performed at one or more facilities or places by a contractor in 
furtherance of a DOE mission.
    Final notice of violation means a document that determines a 
contactor has violated or is continuing to violate a requirement of this 
part and includes:
    (1) A statement specifying the requirement of this part to which the 
violation relates;
    (2) A concise statement of the basis for the determination;

[[Page 603]]

    (3) Any remedy, including the amount of any civil penalty; and
    (4) A statement explaining the reasoning behind any remedy.
    Final Order means an order of DOE that represents final agency 
action and, if appropriate, imposes a remedy with which the recipient of 
the order must comply.
    General Counsel means the General Counsel of DOE.
    Head of DOE Field Element means an individual who is the manager or 
head of the DOE operations office or field office.
    Interpretative ruling means a statement by the General Counsel 
concerning the meaning or effect of a requirement of this part which 
relates to a specific factual situation but may also be a ruling of 
general applicability if the General Counsel determines such action to 
be appropriate.
    National defense variance means relief from a safety and health 
standard, or portion thereof, to avoid serious impairment of a national 
defense mission.
    NNSA means the National Nuclear Security Administration.
    Nuclear explosive means an assembly containing fissionable and/or 
fusionable materials and main charge high-explosive parts or propellants 
capable of producing a nuclear detonation (e.g., a nuclear weapon or 
test device).
    Nuclear explosive operation means any activity involving a nuclear 
explosive, including activities in which main charge high-explosive 
parts and pit are collocated.
    Occupational medicine provider means the designated site 
occupational medicine director (SOMD) or the individual providing 
medical services.
    Permanent variance means relief from a safety and health standard, 
or portion thereof, to contractors who can prove that their methods, 
conditions, practices, operations, or processes provide workplaces that 
are as safe and healthful as those that follow the workplace safety and 
health standard required by this part.
    Preliminary notice of violation means a document that sets forth the 
preliminary conclusions that a contractor has violated or is continuing 
to violate a requirement of this part and includes:
    (1) A statement specifying the requirement of this part to which the 
violation relates;
    (2) A concise statement of the basis for alleging the violation;
    (3) Any remedy, including the amount of any proposed civil penalty; 
and
    (4) A statement explaining the reasoning behind any proposed remedy.
    Pressure systems means all pressure vessels, and pressure sources 
including cryogenics, pneumatic, hydraulic, and vacuum. Vacuum systems 
should be considered pressure systems due to their potential for 
catastrophic failure due to backfill pressurization. Associated hardware 
(e.g., gauges and regulators), fittings, piping, pumps, and pressure 
relief devices are also integral parts of the pressure system.
    Remedy means any action (including, but not limited to, the 
assessment of civil penalties, the reduction of fees or other payments 
under a contract, the requirement of specific actions, or the 
modification, suspension or rescission of a contract) necessary or 
appropriate to rectify, prevent, or penalize a violation of a 
requirement of this part, including a compliance order issued by the 
Secretary pursuant to this part.
    Safety and health standard means a standard that addresses a 
workplace hazard by establishing limits, requiring conditions, or 
prescribing the adoption or use of one or more practices, means, 
methods, operations, or processes, reasonably necessary or appropriate 
to provide safe and healthful workplaces.
    Secretary means the Secretary of Energy.
    Temporary variance means a short-term relief for a new safety and 
health standard when the contractor cannot comply with the requirements 
by the prescribed date because the necessary construction or alteration 
of the facility cannot be completed in time or when technical personnel, 
materials, or equipment are temporarily unavailable.
    Unauthorized discharge means the discharge of a firearm under 
circumstances other than: (1) during firearms training with the firearm 
properly pointed down range (or toward a target), or (2) the intentional 
firing at

[[Page 604]]

hostile parties when deadly force is authorized.
    Under Secretary means, with respect to a particular situation, the 
DOE official who serves as the Under Secretary for Energy and 
Environment, or the Under Secretary for Science, or the Under Secretary 
for Nuclear Security/Administrator for National Nuclear Security 
Administration who has primary line management responsibility for a 
contractor.
    Variance means an exception to compliance with some part of a safety 
and health standard granted by the Under Secretary to a contractor.
    Worker means an employee of a DOE contractor person who performs 
work in furtherance of a DOE mission at a covered workplace.
    Workplace hazard means a physical, chemical, biological, or safety 
hazard with any potential to cause illness, injury, or death to a 
person.
    (b) Terms undefined in this part that are defined in the Atomic 
Energy Act of 1954 must have the same meaning as under that Act.



Sec. 851.4  Compliance order.

    (a) The Secretary may issue to any contractor a Compliance Order 
that:
    (1) Identifies a situation that violates, potentially violates, or 
otherwise is inconsistent with a requirement of this part;
    (2) Mandates a remedy, work stoppage, or other action; and,
    (3) States the reasons for the remedy, work stoppage, or other 
action.
    (b) A Compliance Order is a final order that is effective 
immediately unless the Order specifies a different effective date.
    (c) Within 15 calendar days of the issuance of a Compliance Order, 
the recipient of the Order may request the Secretary to rescind or 
modify the Order. A request does not stay the effectiveness of a 
Compliance Order unless the Secretary issues an order to that effect.
    (d) A copy of the Compliance Order must be prominently posted, once 
issued, at or near the location where the violation, potential 
violation, or inconsistency occurred until it is corrected.



Sec. 851.5  Enforcement.

    (a) A contractor that is indemnified under section 170d. of the AEA 
(or any subcontractor or supplier thereto) and that violates (or whose 
employee violates) any requirement of this part shall be subject to a 
civil penalty of up to $75,000 for each such violation. If any violation 
under this subsection is a continuing violation, each day of the 
violation shall constitute a separate violation for the purpose of 
computing the civil penalty.
    (b) A contractor that violates any requirement of this part may be 
subject to a reduction in fees or other payments under a contract with 
DOE, pursuant to the contract's Conditional Payment of Fee clause, or 
other contract clause providing for such reductions.
    (c) DOE may not penalize a contractor under both paragraphs (a) and 
(b) of this section for the same violation of a requirement of this 
part.
    (d) For contractors listed in subsection d. of section 234A of the 
AEA, 42 U.S.C. 2282a(d), the total amount of civil penalties under 
paragraph (a) and contract penalties under paragraph (b) of this section 
may not exceed the total amount of fees paid by DOE to the contractor in 
that fiscal year.
    (e) DOE shall not penalize a contractor under both sections 234A and 
234C of the AEA for the same violation.
    (f) DOE enforcement actions through civil penalties under paragraph 
(a) of this section, start on February 9, 2007.

[71 FR 6931, Feb. 9, 2006, as amended at 74 FR 66033, Dec. 14, 2009]



Sec. 851.6  Petitions for generally applicable rulemaking.

    (a) Right to file. Any person may file a petition for generally 
applicable rulemaking to amend or interpret provisions of this part.
    (b) How to file. Any person who wants to file a petition for 
generally applicable rulemaking pursuant to this section must file by 
mail or messenger in an envelope addressed to the Office of General 
Counsel, GC-1, U.S. Department of Energy, 1000 Independence Avenue, SW., 
Washington, DC 20585.
    (c) Content of rulemaking petitions. A petition under this section 
must:

[[Page 605]]

    (1) Be labeled ``Petition for Rulemaking Under 10 CFR 851;''
    (2) Describe with particularity the provision of this part to be 
amended and the text of regulatory language to be added; and
    (3) Explain why, if relevant, DOE should not choose to make policy 
by precedent through adjudication of petitions for assessment of civil 
penalty.
    (d) Determinations upon rulemaking petitions. After considering the 
petition and other information DOE deems relevant, DOE may grant the 
petition and issue an appropriate rulemaking notice, or deny the 
petition because the rule being sought:
    (1) Would be inconsistent with statutory law;
    (2) Would establish a generally applicable policy in a subject 
matter area that should be left to case-by-case determinations; or
    (3) For other good cause.



Sec. 851.7  Requests for a binding interpretive ruling.

    (a) Right to file. Any person subject to this part shall have the 
right to file a request for an interpretive ruling that is binding on 
DOE with regard to a question as to how the regulations in this part 
would apply to particular facts and circumstances.
    (b) How to file. Any person who wants to file a request under this 
section must file by mail or messenger in an envelop addressed to the 
Office of General Counsel, GC-1, U.S. Department of Energy, 1000 
Independence Avenue, SW., Washington, DC 20585.
    (c) Content of request for interpretive ruling. A request under this 
section must:
    (1) Be in writing;
    (2) Be labeled ``Request for Interpretive Ruling Under 10 CFR 851;''
    (3) Identify the name, address, telephone number, e-mail address, 
and any designated representative of the person filing the request;
    (4) State the facts and circumstances relevant to the request;
    (5) Be accompanied by copies of relevant supporting documents if 
any;
    (6) Specifically identify the pertinent regulations and the related 
question on which an interpretive ruling is sought; and
    (7) Include explanatory discussion in support of the interpretive 
ruling being sought.
    (d) Public comment. DOE may give public notice of any request for an 
interpretive ruling and provide an opportunity for public comment.
    (e) Opportunity to respond to public comment. DOE may provide an 
opportunity to any person who requests an interpretive ruling to respond 
to public comments relating to the request.
    (f) Other sources of information. DOE may:
    (1) Conduct an investigation of any statement in a request;
    (2) Consider any other source of information in evaluating a request 
for an interpretive ruling; and
    (3) Rely on previously issued interpretive rulings with addressing 
the same or a related issue.
    (g) Informal conference. DOE may convene an informal conference with 
the person requesting the interpretive ruling.
    (h) Effect of interpretive ruling. Except as provided in paragraph 
(i) of this section, an interpretive ruling under this section is 
binding on DOE only with respect to the person who requested the ruling.
    (i) Reliance on interpretive ruling. If DOE issues an interpretive 
ruling under this section, then DOE may not subject the person who 
requested the ruling to an enforcement action for civil penalties for 
actions reasonably taken in reliance on the ruling, but a person may not 
act in reliance on an interpretive ruling that is administratively 
rescinded or modified after opportunity to comment, judicially 
invalidated, or overruled by statute or regulation.
    (j) Denial of requests for an interpretive ruling. DOE may deny a 
request for an interpretive ruling if DOE determines that:
    (1) There is insufficient information upon which to base an 
interpretive ruling;
    (2) The interpretive question posed should be treated in a general 
notice of proposed rulemaking;
    (3) There is an adequate procedure elsewhere in this part for 
addressing the interpretive question such as a petition for variance; or

[[Page 606]]

    (4) For other good cause.
    (k) Public availability of interpretive rulings. For information of 
interested members of the public, DOE may file a copy of interpretive 
rulings on a DOE internet web site.

[71 FR 6931, Feb. 9, 2006; 71 FR 36661, June 28, 2006]



Sec. 851.8  Informal requests for information.

    (a) Any person may informally request information under this section 
as to how to comply with the requirements of this part, instead of 
applying for a binding interpretive ruling under Sec. 851.7. DOE 
responses to informal requests for information under this section are 
not binding on DOE and do not preclude enforcement actions under this 
part.
    (b) Inquiries regarding the technical requirements of the standards 
required by this part must be directed to the Office of Health, Safety 
and Security, U.S. Department of Energy, 1000 Independence Avenue, SW., 
Washington, DC 20585.
    (c) Information regarding the general statement of enforcement 
policy in the appendix to this part must be directed to the Office of 
Health, Safety and Security, Office of Enforcement, HS-40, U.S. 
Department of Energy, 1000 Independence Avenue, SW., Washington, DC 
20585.

[71 FR 6931, Feb. 9, 2006, as amended at 71 FR 68733, Nov. 28, 2006]



                     Subpart B_Program Requirements



Sec. 851.10  General requirements.

    (a) With respect to a covered workplace for which a contractor is 
responsible, the contractor must:
    (1) Provide a place of employment that is free from recognized 
hazards that are causing or have the potential to cause death or serious 
physical harm to workers; and
    (2) Ensure that work is performed in accordance with:
    (i) All applicable requirements of this part; and
    (ii) With the worker safety and health program for that workplace.
    (b) The written worker safety and health program must describe how 
the contractor complies with the:
    (1) Requirements set forth in subpart C of this part that are 
applicable to the hazards associated with the contractor's scope of 
work; and
    (2) Any compliance order issued by the Secretary pursuant to Sec. 
851.4.



Sec. 851.11  Development and approval of worker safety and health program.

    (a) Preparation and submission of worker safety and health program. 
By February 26, 2007, contractors must submit to the appropriate Head of 
DOE Field Element for approval a written worker safety and health 
program that provides the methods for implementing the requirements of 
subpart C of this part.
    (1) If a contractor is responsible for more than one covered 
workplace at a DOE site, the contractor must establish and maintain a 
single worker safety and health program for the covered workplaces for 
which the contractor is responsible.
    (2) If more than one contractor is responsible for covered 
workplaces, each contractor must:
    (i) Establish and maintain a worker safety and health program for 
the workplaces for which the contractor is responsible; and
    (ii) Coordinate with the other contractors responsible for work at 
the covered workplaces to ensure that there are clear roles, 
responsibilities and procedures to ensure the safety and health of 
workers at multi-contractor workplaces.
    (3) The worker safety and health program must describe how the 
contractor will:
    (i) Comply with the requirements set forth in subpart C of this part 
that are applicable to the covered workplace, including the methods for 
implementing those requirements; and
    (ii) Integrate the requirements set forth in subpart C of this part 
that are applicable to a covered workplace with other related site-
specific worker protection activities and with the integrated safety 
management system.

[[Page 607]]

    (b) DOE evaluation and approval. The Head of DOE Field Element must 
complete a review and provide written approval of the contractor's 
worker safety and health program, within 90 days of receiving the 
document. The worker safety and health program and any updates are 
deemed approved 90 days after submission if they are not specifically 
approved or rejected by DOE earlier.
    (1) Beginning May 25, 2007, no work may be performed at a covered 
workplace unless an approved worker safety and health program is in 
place for the workplace.
    (2) Contractors must send a copy of the approved program to the 
Chief Health, Safety and Security Officer.
    (3) Contractors must furnish a copy of the approved worker safety 
and health program, upon written request, to the affected workers or 
their designated representatives.
    (c) Updates. (1) Contractors must submit an update of the worker 
safety and health program to the appropriate Head of DOE Field Element, 
for review and approval whenever a significant change or addition to the 
program is made, or a change in contractors occurs.
    (2) Contractors must submit annually to DOE either an updated worker 
safety and health program for approval or a letter stating that no 
changes are necessary in the currently approved worker safety and health 
program.
    (3) Contactors must incorporate in the worker safety and health 
program any changes, conditions, or workplace safety and health 
standards directed by DOE consistent with the requirements of this part 
and DEAR 970.5204-2, Laws, Regulations and DOE Directives (December, 
2000) and associated contract clauses.
    (d) Labor Organizations. If a contractor employs or supervises 
workers who are represented for collective bargaining by a labor 
organization, the contractor must:
    (1) Give the labor organization timely notice of the development and 
implementation of the worker safety and health program and any updates 
thereto; and
    (2) Upon timely request, bargain concerning implementation of this 
part, consistent with the Federal labor laws.

[71 FR 6931, Feb. 9, 2006, as amended at 71 FR 68733, Nov. 28, 2006]



Sec. 851.12  Implementation.

    (a) Contractors must implement the requirements of this part.
    (b) Nothing in this part precludes a contractor from taking any 
additional protective action that is determined to be necessary to 
protect the safety and health of workers.



Sec. 851.13  Compliance.

    (a) Contractors must achieve compliance with all the requirements of 
Subpart C of this part, and their approved worker safety and health 
program no later than May 25, 2007. Contractors may be required to 
comply contractually with the requirements of this rule before February 
9, 2007.
    (b) In the event a contractor has established a written safety and 
health program, an Integrated Safety Management System (ISMS) 
description pursuant to the DEAR Clause, or an approved Work Smart 
Standards (WSS) process before the date of issuance of the final rule, 
the Contractor may use that program, description, or process as the 
worker safety and health program required by this part if the 
appropriate Head of the DOE Field Element approves such use on the basis 
of written documentation provided by the contractor that identifies the 
specific portions of the program, description, or process, including any 
additional requirements or implementation methods to be added to the 
existing program, description, or process, that satisfy the requirements 
of this part and that provide a workplace as safe and healthful as would 
be provided by the requirements of this part.
    (c) Nothing in this part shall be construed to limit or otherwise 
affect contractual obligations of a contractor to comply with 
contractual requirements that are not inconsistent with the requirements 
of this part.

[[Page 608]]



                 Subpart C_Specific Program Requirements



Sec. 851.20  Management responsibilities and worker rights and responsibilities.

    (a) Management responsibilities. Contractors are responsible for the 
safety and health of their workforce and must ensure that contractor 
management at a covered workplace:
    (1) Establish written policy, goals, and objectives for the worker 
safety and health program;
    (2) Use qualified worker safety and health staff (e.g., a certified 
industrial hygienist, or safety professional) to direct and manage the 
program;
    (3) Assign worker safety and health program responsibilities, 
evaluate personnel performance, and hold personnel accountable for 
worker safety and health performance;
    (4) Provide mechanisms to involve workers and their elected 
representatives in the development of the worker safety and health 
program goals, objectives, and performance measures and in the 
identification and control of hazards in the workplace;
    (5) Provide workers with access to information relevant to the 
worker safety and health program;
    (6) Establish procedures for workers to report without reprisal job-
related fatalities, injuries, illnesses, incidents, and hazards and make 
recommendations about appropriate ways to control those hazards;
    (7) Provide for prompt response to such reports and recommendations;
    (8) Provide for regular communication with workers about workplace 
safety and health matters;
    (9) Establish procedures to permit workers to stop work or decline 
to perform an assigned task because of a reasonable belief that the task 
poses an imminent risk of death, serious physical harm, or other serious 
hazard to workers, in circumstances where the workers believe there is 
insufficient time to utilize normal hazard reporting and abatement 
procedures; and
    (10) Inform workers of their rights and responsibility by 
appropriate means, including posting the DOE-designated Worker 
Protection Poster in the workplace where it is accessible to all 
workers.
    (b) Worker rights and responsibilities. Workers must comply with the 
requirements of this part, including the worker safety and health 
program, which are applicable to their own actions and conduct. Workers 
at a covered workplace have the right, without reprisal, to:
    (1) Participate in activities described in this section on official 
time;
    (2) Have access to:
    (i) DOE safety and health publications;
    (ii) The worker safety and health program for the covered workplace;
    (iii) The standards, controls, and procedures applicable to the 
covered workplace;
    (iv) The safety and health poster that informs the worker of 
relevant rights and responsibilities;
    (v) Limited information on any recordkeeping log (OSHA Form 300). 
Access is subject to Freedom of Information Act requirements and 
restrictions; and
    (vi) The DOE Form 5484.3 (the DOE equivalent to OSHA Form 301) that 
contains the employee's name as the injured or ill worker;
    (3) Be notified when monitoring results indicate the worker was 
overexposed to hazardous materials;
    (4) Observe monitoring or measuring of hazardous agents and have the 
results of their own exposure monitoring;
    (5) Have a representative authorized by employees accompany the 
Director or his authorized personnel during the physical inspection of 
the workplace for the purpose of aiding the inspection. When no 
authorized employee representative is available, the Director or his 
authorized representative must consult, as appropriate, with employees 
on matters of worker safety and health;
    (6) Request and receive results of inspections and accident 
investigations;
    (7) Express concerns related to worker safety and health;
    (8) Decline to perform an assigned task because of a reasonable 
belief that, under the circumstances, the task poses an imminent risk of 
death or serious physical harm to the worker coupled with a reasonable 
belief that

[[Page 609]]

there is insufficient time to seek effective redress through normal 
hazard reporting and abatement procedures; and
    (9) Stop work when the worker discovers employee exposures to 
imminently dangerous conditions or other serious hazards; provided that 
any stop work authority must be exercised in a justifiable and 
responsible manner in accordance with procedures established in the 
approved worker safety and health program.



Sec. 851.21  Hazard identification and assessment.

    (a) Contractors must establish procedures to identify existing and 
potential workplace hazards and assess the risk of associated workers 
injury and illness. Procedures must include methods to:
    (1) Assess worker exposure to chemical, physical, biological, or 
safety workplace hazards through appropriate workplace monitoring;
    (2) Document assessment for chemical, physical, biological, and 
safety workplace hazards using recognized exposure assessment and 
testing methodologies and using of accredited and certified 
laboratories;
    (3) Record observations, testing and monitoring results;
    (4) Analyze designs of new facilities and modifications to existing 
facilities and equipment for potential workplace hazards;
    (5) Evaluate operations, procedures, and facilities to identify 
workplace hazards;
    (6) Perform routine job activity-level hazard analyses;
    (7) Review site safety and health experience information; and
    (8) Consider interaction between workplace hazards and other hazards 
such as radiological hazards.
    (b) Contractors must submit to the Head of DOE Field Element a list 
of closure facility hazards and the established controls within 90 days 
after identifying such hazards. The Head of DOE Field Element, with 
concurrence by the Cognizant Secretarial Officer, has 90 days to accept 
the closure facility hazard controls or direct additional actions to 
either:
    (1) Achieve technical compliance; or
    (2) Provide additional controls to protect the workers.
    (c) Contractors must perform the activities identified in paragraph 
(a) of this section, initially to obtain baseline information and as 
often thereafter as necessary to ensure compliance with the requirements 
in this Subpart.



Sec. 851.22  Hazard prevention and abatement.

    (a) Contractors must establish and implement a hazard prevention and 
abatement process to ensure that all identified and potential hazards 
are prevented or abated in a timely manner.
    (1) For hazards identified either in the facility design or during 
the development of procedures, controls must be incorporated in the 
appropriate facility design or procedure.
    (2) For existing hazards identified in the workplace, contractors 
must:
    (i) Prioritize and implement abatement actions according to the risk 
to workers;
    (ii) Implement interim protective measures pending final abatement; 
and
    (iii) Protect workers from dangerous safety and health conditions;
    (b) Contractors must select hazard controls based on the following 
hierarchy:
    (1) Elimination or substitution of the hazards where feasible and 
appropriate;
    (2) Engineering controls where feasible and appropriate;
    (3) Work practices and administrative controls that limit worker 
exposures; and
    (4) Personal protective equipment.
    (c) Contractors must address hazards when selecting or purchasing 
equipment, products, and services.



Sec. 851.23  Safety and health standards.

    (a) Contractors must comply with the following safety and health 
standards that are applicable to the hazards at their covered workplace:
    (1) Title 10 Code of Federal Regulations (CFR) 850, ``Chronic 
Beryllium Disease Prevention Program.''
    (2) Title 29 CFR, Parts 1904.4 through 1904.11, 1904.29 through 
1904.33; 1904.44, and 1904.46, ``Recording and Reporting Occupational 
Injuries and Illnesses.''

[[Page 610]]

    (3) Title 29 CFR, Part 1910, ``Occupational Safety and Health 
Standards,'' excluding 29 CFR 1910.1096, ``Ionizing Radiation.''
    (4) Title 29 CFR, Part 1915, ``Shipyard Employment.''
    (5) Title 29 CFR, Part 1917, ``Marine Terminals.''
    (6) Title 29 CFR, Part 1918, ``Safety and Health Regulations for 
Longshoring.''
    (7) Title 29 CFR, Part 1926, ``Safety and Health Regulations for 
Construction.''
    (8) Title 29 CFR, Part 1928, ``Occupational Safety and Health 
Standards for Agriculture.''
    (9) American Conference of Governmental Industrial Hygienists 
(ACGIH), ``Threshold Limit Values for Chemical Substances and Physical 
Agents and Biological Exposure Indices,'' (2005) (incorporated by 
reference, see Sec. 851.27) when the ACGIH Threshold Limit Values 
(TLVs) are lower (more protective) than permissible exposure limits in 
29 CFR 1910. When the ACGIH TLVs are used as exposure limits, 
contractors must nonetheless comply with the other provisions of any 
applicable expanded health standard found in 29 CFR 1910.
    (10) American National Standards Institute (ANSI) Z88.2, ``American 
National Standard for Respiratory Protection,'' (1992) (incorporated by 
reference, see Sec. 851.27).
    (11) ANSI Z136.1, ``Safe Use of Lasers,'' (2000) (incorporated by 
reference, see Sec. 851.27).
    (12) ANSI Z49.1, ``Safety in Welding, Cutting and Allied 
Processes,'' sections 4.3 and E4.3 (1999) (incorporated by reference, 
see Sec. 851.27).
    (13) National Fire Protection Association (NFPA) 70, ``National 
Electrical Code,'' (2005) (incorporated by reference, see Sec. 851.27).
    (14) NFPA 70E, ``Standard for Electrical Safety in the Workplace,'' 
(2004) (incorporated by reference, see Sec. 851.27).
    (b) Nothing in this part must be construed as relieving a contractor 
from complying with any additional specific safety and health 
requirement that it determines to be necessary to protect the safety and 
health of workers.



Sec. 851.24  Functional areas.

    (a) Contractors must have a structured approach to their worker 
safety and health program which at a minimum, include provisions for the 
following applicable functional areas in their worker safety and health 
program: construction safety; fire protection; firearms safety; 
explosives safety; pressure safety; electrical safety; industrial 
hygiene; occupational medicine; biological safety; and motor vehicle 
safety.
    (b) In implementing the structured approach required by paragraph 
(a) of this section, contractors must comply with the applicable 
standards and provisions in appendix A of this part, entitled ``Worker 
Safety and Health Functional Areas.''



Sec. 851.25  Training and information.

    (a) Contractors must develop and implement a worker safety and 
health training and information program to ensure that all workers 
exposed or potentially exposed to hazards are provided with the training 
and information on that hazard in order to perform their duties in a 
safe and healthful manner.
    (b) The contractor must provide:
    (1) Training and information for new workers, before or at the time 
of initial assignment to a job involving exposure to a hazard;
    (2) Periodic training as often as necessary to ensure that workers 
are adequately trained and informed; and
    (3) Additional training when safety and health information or a 
change in workplace conditions indicates that a new or increased hazard 
exists.
    (c) Contractors must provide training and information to workers who 
have worker safety and health program responsibilities that is necessary 
for them to carry out those responsibilities.



Sec. 851.26  Recordkeeping and reporting.

    (a) Recordkeeping. Contractors must:
    (1) Establish and maintain complete and accurate records of all 
hazard inventory information, hazard assessments, exposure measurements, 
and exposure controls.
    (2) Ensure that the work-related injuries and illnesses of its 
workers and

[[Page 611]]

subcontractor workers are recorded and reported accurately and 
consistent with DOE Manual 231.1-1A, Environment, Safety and Health 
Reporting Manual, September 9, 2004 (incorporated by reference, see 
Sec. 851.27).
    (3) Comply with the applicable occupational injury and illness 
recordkeeping and reporting workplace safety and health standards in 
Sec. 851.23 at their site, unless otherwise directed in DOE Manual 
231.1-1A.
    (4) Not conceal nor destroy any information concerning non-
compliance or potential noncompliance with the requirements of this 
part.
    (b) Reporting and investigation. Contractors must:
    (1) Report and investigate accidents, injuries and illness; and
    (2) Analyze related data for trends and lessons learned (reference 
DOE Order 225.1A, Accident Investigations, November 26, 1997).



Sec. 851.27  Reference sources.

    (a) Materials incorporated by reference--(1) General. The following 
standards which are not otherwise set forth in part 851 are incorporated 
by reference and made a part of part 851. The standards listed in this 
section have been approved for incorporation by reference by the 
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 
1 CFR part 51.
    (2) Availability of standards. The standards incorporated by 
reference are available for inspection at:
    (i) National Archives and Records Administration (NARA). For more 
information on the availability of this material at NARA, call 202-741-
6030, or go to: http://www.archives.gov/federal--register/code--of--
federal--regulations/ibr--locations.html
    (ii) U.S. Department of Energy, Office of Health, Safety and 
Security, Forrestal Building, 1000 Independence Ave., SW., Washington, 
DC 20585.
    (iii) American National Standards Institute Headquarters, 25 West 
43rd Street, New York, NY 10036. Telephone number: 212-642-4980, or go 
to: http://www.ansi.org.
    (iv) National Fire Protection Association, 1 Batterymarch Park, 
Quincy, MA 02169. Telephone: 617 770-3000, or go to: http://
www.nfpa.org.
    (v) American Conference of Governmental Industrial Hygienist 
(ACGIH), 1330 Kemper Meadow Drive, Cincinnati, OH 45240. Telephone 
number 513-742-2020, or go to: http://www.acgih.org.
    (vi) American Society of Mechanical Engineers (ASME), P.O. Box 2300 
Fairfield, NJ 07007. Telephone: 800-843-2763, or got to: http://
www.asme.org.
    (b) List of standards incorporated by reference. (1) American 
National Standards Institute (ANSI) Z88.2, ``American National Standard 
for Respiratory Protection,'' (1992).
    (2) ANSI Z136.1, ``Safe Use of Lasers,'' (2000).
    (3) ANSI Z49.1, ``Safety in Welding, Cutting and Allied Processes,'' 
sections 4.3 and E4.3, (1999).
    (4) National Fire Protection Association (NFPA) 70, ``National 
Electrical Code,'' (2005).
    (5) NFPA 70E, ``Standard for Electrical Safety in the Workplace,'' 
(2004).
    (6) American Conference of Governmental Industrial Hygienists, 
``Threshold Limit Values for Chemical Substances and Physical Agents and 
Biological Exposure Indices,'' (2005).
    (7) American Society of Mechanical Engineers (ASME) Boilers and 
Pressure Vessel Code, sections I through XII including applicable Code 
Cases, (2004).
    (8) ASME B31 (ASME Code for Pressure Piping) as follows:
    (i) B31.1--2001--Power Piping, and B31.1a--2002--Addenda to ASME 
B31.1--2001;
    (ii) B31.2--1968--Fuel Gas Piping;
    (iii) B31.3--2002--Process Piping;
    (iv) B31.4--2002--Pipeline Transportation Systems for Liquid 
Hydrocarbons and Other Liquids;
    (v) B31.5--2001--Refrigeration Piping and Heat Transfer Components, 
and B31.5a--2004, Addenda to ASME B31.5--2001;
    (vi) B31.8--2003--Gas Transmission and Distribution Piping Systems;
    (vii) B31.8S--2001--Managing System Integrity of Gas Pipelines;
    (viii) B31.9--1996--Building Services Piping;
    (ix) B31.11--2002--Slurry Transportation Piping Systems; and

[[Page 612]]

    (x) B31G--1991--Manual for Determining Remaining Strength of 
Corroded Pipelines.
    (9) DOE Manual 231.1-1A, Environment, Safety and Health Reporting 
Manual, September 9, 2004.
    (10) DOE Manual 440.1-1A, DOE Explosives Safety Manual, Contractor 
Requirements Document (Attachment 2), January 9, 2006.

[71 FR 6931, Feb. 9, 2006, as amended at 71 FR 68733, Nov. 28, 2006]



                           Subpart D_Variances



Sec. 851.30  Consideration of variances.

    (a) Variances shall be granted by the Under Secretary after 
considering the recommendation of the Chief Health, Safety and Security 
Officer. The authority to grant a variance cannot be delegated.
    (b) The application must satisfy the requirements for applications 
specified in Sec. 851.31.

[71 FR 6931, Feb. 9, 2006, as amended at 71 FR 68733, Nov. 28, 2006]



Sec. 851.31  Variance process.

    (a) Application. Contractors desiring a variance from a safety and 
health standard, or portion thereof, may submit a written application 
containing the information in paragraphs (c) and (d) of this section to 
the appropriate CSO.
    (1) The CSO may forward the application to the Chief Health, Safety 
and Security Officer.
    (2) If the CSO does not forward the application to the Chief Health, 
Safety and Security Officer, the CSO must return the application to the 
contractor with a written statement explaining why the application was 
not forwarded.
    (3) Upon receipt of an application from a CSO, the Chief Health, 
Safety and Security Officer must review the application for a variance 
and make a written recommendation to:
    (i) Approve the application;
    (ii) Approve the application with conditions; or
    (iii) Deny the application.
    (b) Defective applications. If an application submitted pursuant to 
Sec. 851.31(a) is determined by the Chief Health, Safety and Security 
Officer to be incomplete, the Chief Health, Safety and Security Officer 
may:
    (1) Return the application to the contractor with a written 
explanation of what information is needed to permit consideration of the 
application; or
    (2) Request the contractor to provide necessary information.
    (c) Content. All variance applications submitted pursuant to 
paragraph (a) of this section must include:
    (1) The name and address of the contractor;
    (2) The address of the DOE site or sites involved;
    (3) A specification of the standard, or portion thereof, from which 
the contractor seeks a variance;
    (4) A description of the steps that the contractor has taken to 
inform the affected workers of the application, which must include 
giving a copy thereof to their authorized representative, posting a 
statement, giving a summary of the application and specifying where a 
copy may be examined at the place or places where notices to workers are 
normally posted; and
    (5) A description of how affected workers have been informed of 
their right to petition the Chief Health, Safety and Security Officer or 
designee for a conference; and
    (6) Any requests for a conference, as provided in Sec. 851.34.
    (d) Types of variances. Contractors may apply for the following 
types of variances:
    (1) Temporary variance. Applications for a temporary variance 
pursuant to paragraph (a) of this section must be submitted at least 30 
days before the effective date of a new safety and health standard and, 
in addition to the content required by paragraph (c) of this section, 
must include:
    (i) A statement by the contractor explaining the contractor is 
unable to comply with the standard or portion thereof by its effective 
date and a detailed statement of the factual basis and representations 
of qualified persons that support the contractor's statement;
    (ii) A statement of the steps the contractor has taken and plans to 
take, with specific dates if appropriate, to protect workers against the 
hazard covered by the standard;

[[Page 613]]

    (iii) A statement of when the contractor expects to be able to 
comply with the standard and of what steps the contractor has taken and 
plans to take, with specific dates if appropriate, to come into 
compliance with the standard;
    (iv) A statement of the facts the contractor would show to establish 
that:
    (A) The contractor is unable to comply with the standard by its 
effective date because of unavailability of professional or technical 
personnel or materials and equipment needed to come into compliance with 
the standard or because necessary construction or alteration of 
facilities cannot be completed by the effective date;
    (B) The contractor is taking all available steps to safeguard the 
workers against the hazards covered by the standard; and
    (C) The contractor has an effective program for coming into 
compliance with the standard as quickly as practicable.
    (2) Permanent variance. An application submitted for a permanent 
variance pursuant to paragraph (a) of this section must, in addition to 
the content required in paragraph (c) of this section, include:
    (i) A description of the conditions, practices, means, methods, 
operations, or processes used or proposed to be used by the contractor; 
and
    (ii) A statement showing how the conditions, practices, means, 
methods, operations, or processes used or proposed to be used would 
provide workers a place of employment which is as safe and healthful as 
would result from compliance with the standard from which a variance is 
sought.
    (3) National defense variance. (i) An application submitted for a 
national defense variance pursuant to paragraph (a) of this section 
must, in addition to the content required in paragraph (c) of this 
section, include:
    (A) A statement by the contractor showing that the variance sought 
is necessary to avoid serious impairment of national defense; and
    (B) A statement showing how the conditions, practices, means, 
methods, operations, or processes used or proposed to be used would 
provide workers a safe and healthful place of employment in a manner 
that, to the extent practical taking into account the national defense 
mission, is consistent with the standard from which a variance is 
sought.
    (ii) A national defense variance may be granted for a maximum of six 
months, unless there is a showing that a longer period is essential to 
carrying out a national defense mission.

[71 FR 6931, Feb. 9, 2006; 71 FR 36661, June 28, 2006, as amended at 71 
FR 68733, Nov. 28, 2006]



Sec. 851.32  Action on variance requests.

    (a) Procedures for an approval recommendation. (1) If the Chief 
Health, Safety and Security Officer recommends approval of a variance 
application, the Chief Health, Safety and Security Officer must forward 
to the Under Secretary the variance application and the approval 
recommendation including a discussion of the basis for the 
recommendation and any terms and conditions proposed for inclusion as 
part of the approval.
    (2) If the Under Secretary approves a variance, the Under Secretary 
must notify the Chief Health, Safety and Security Officer who must 
notify the Office of Enforcement and the CSO who must promptly notify 
the contractor.
    (3) The notification must include a reference to the safety and 
health standard or portion thereof that is the subject of the 
application, a detailed description of the variance, the basis for the 
approval and any terms and conditions of the approval.
    (4) If the Under Secretary denies a variance, the Under Secretary 
must notify the Chief Health, Safety and Security Officer who must 
notify the appropriate CSO who must notify the contractor.
    (5) The notification must include the grounds for denial.
    (b) Approval criteria. A variance may be granted if the variance:
    (1) Is consistent with section 3173 of the NDAA;
    (2) Does not present an undue risk to worker safety and health;
    (3) Is warranted under the circumstances;
    (4) Satisfies the requirements of Sec. 851.31 of this part for the 
type of variance requested.

[[Page 614]]

    (c) Procedures for a denial recommendation. (1) If the Chief Health, 
Safety and Security Officer recommends denial of a variance application, 
the Chief Health, Safety and Security Officer must notify the CSO of the 
denial recommendation and the grounds for the denial recommendation.
    (2) Upon receipt of a denial recommendation, the CSO may:
    (i) Notify the contractor that the variance application is denied on 
the grounds cited by the Chief Health, Safety and Security Officer; or
    (ii) Forward to the Under Secretary the variance application, the 
denial recommendation, the grounds for the denial recommendation, and 
any information that supports an action different than that recommended 
by the Chief Health, Safety and Security Officer.
    (3) If the CSO forwards the application to the Under Secretary, the 
procedures in paragraphs (a)(2), (3), (4) and (5) of this section apply.
    (4) A denial of an application pursuant to this section shall be 
without prejudice to submitting of another application
    (d) Grounds for denial of a variance. A variance may be denied if:
    (1) Enforcement of the violation would be handled as a de minimis 
violation (defined as a deviation from the requirement of a standard 
that has no direct or immediate relationship to safety or health, and no 
enforcement action will be taken);
    (2) When a variance is not necessary for the conditions, practice, 
means, methods, operations, or processes used or proposed to be used by 
contractor;
    (3) Contractor does not demonstrate that the approval criteria are 
met.

[71 FR 6931, Feb. 9, 2006, as amended at 71 FR 68733, Nov. 28, 2006]



Sec. 851.33  Terms and conditions.

    A variance may contain appropriate terms and conditions including, 
but not limited to, provisions that:
    (a) Limit its duration;
    (b) Require alternative action;
    (c) Require partial compliance; and
    (d) Establish a schedule for full or partial compliance.



Sec. 851.34  Requests for conferences.

    (a) Within the time allotted by a notice of the filling of an 
application, any affected contractor or worker may file with the Chief 
Health, Safety and Security Officer a request for a conference on the 
application for a variance.
    (b) A request for a conference filed pursuant to paragraph (a) of 
this section must include:
    (1) A concise statement explaining how the contractor or worker 
would be affected by the variance applied for, including relevant facts;
    (2) A specification of any statement or representation in the 
application which is denied, and a concise summary of the evidence that 
would be adduced in support of each denial; and
    (3) Any other views or arguments on any issue of fact or law 
presented.
    (c) The Chief Health, Safety and Security Officer, or designee, must 
respond to a request within fifteen days and, if the request is granted, 
indicate the time and place of the conference and the DOE participants 
in the conference.

[71 FR 6931, Feb. 9, 2006, as amended at 71 FR 68733, Nov. 28, 2006]



                      Subpart E_Enforcement Process



Sec. 851.40  Investigations and inspections.

    (a) The Director may initiate and conduct investigations and 
inspections relating to the scope, nature and extent of compliance by a 
contractor with the requirements of this part and take such action as 
the Director deems necessary and appropriate to the conduct of the 
investigation or inspection. DOE Enforcement Officers have the right to 
enter work areas without delay to the extent practicable, to conduct 
inspections under this subpart.
    (b) Contractors must fully cooperate with the Director during all 
phases of the enforcement process and provide complete and accurate 
records and documentation as requested by the Director during 
investigation or inspection activities.
    (c) Any worker or worker representative may request that the 
Director initiate an investigation or inspection

[[Page 615]]

pursuant to paragraph (a) of this section. A request for an 
investigation or inspection must describe the subject matter or activity 
to be investigated or inspected as fully as possible and include 
supporting documentation and information. The worker or worker 
representative has the right to remain anonymous upon filing a request 
for an investigation or inspection.
    (d) The Director must inform any contractor that is the subject of 
an investigation or inspection in writing at the initiation of the 
investigation or inspection and must inform the contractor of the 
general purpose of the investigation or inspection.
    (e) DOE shall not disclose information or documents that are 
obtained during any investigation or inspection unless the Director 
directs or authorizes the public disclosure of the investigation. Prior 
to such authorization, DOE must determine that disclosure is not 
precluded by the Freedom of Information Act, 5 U.S.C. 552 and part 1004 
of this title. Once disclosed pursuant to the Director's authorization, 
the information or documents are a matter of public record.
    (f) A request for confidential treatment of information for purposes 
of the Freedom of Information Act does not prevent disclosure by the 
Director if the Director determines disclosure to be in the public 
interest and otherwise permitted or required by law.
    (g) During the course of an investigation or inspection, any 
contractor may submit any document, statement of facts, or memorandum of 
law for the purpose of explaining the contractor's position or furnish 
information which the contractor considers relevant to a matter or 
activity under investigation or inspection.
    (h) The Director may convene an informal conference to discuss any 
situation that might be a violation of a requirement of this part, its 
significance and cause, any corrective action taken or not taken by the 
contractor, any mitigating or aggravating circumstances, and any other 
information. A conference is not normally open to the public and DOE 
does not make a transcript of the conference. The Director may compel a 
contractor to attend the conference.
    (i) If facts disclosed by an investigation or inspection indicate 
that further action is unnecessary or unwarranted, the Director may 
close the investigation without prejudice.
    (j) The Director may issue enforcement letters that communicate 
DOE's expectations with respect to any aspect of the requirements of 
this part, including identification and reporting of issues, corrective 
actions, and implementation of the contractor's safety and health 
program; provided that an enforcement letter may not create the basis 
for any legally enforceable requirement pursuant to this part.
    (k) The Director may sign, issue and serve subpoenas.



Sec. 851.41  Settlement.

    (a) DOE encourages settlement of a proceeding under this subpart at 
any time if the settlement is consistent with this part. The Director 
and a contractor may confer at any time concerning settlement. A 
settlement conference is not open to the public and DOE does not make a 
transcript of the conference.
    (b) Notwithstanding any other provision of this part, the Director 
may resolve any issues in an outstanding proceeding under this subpart 
with a consent order.
    (1) The Director and the contractor, or a duly authorized 
representative thereto, must sign the consent order and indicate 
agreement to the terms contained therein.
    (2) A contractor is not required to admit in a consent order that a 
requirement of this part has been violated.
    (3) DOE is not required to make a finding in a consent order that a 
contractor has violated a requirement of this part.
    (4) A consent order must set forth the relevant facts that form the 
basis for the order and what remedy, if any, is imposed.
    (5) A consent order shall constitute a final order.



Sec. 851.42  Preliminary notice of violation.

    (a) Based on a determination by the Director that there is a 
reasonable

[[Page 616]]

basis to believe a contractor has violated or is continuing to violate a 
requirement of this part, the Director may issue a preliminary notice of 
violation (PNOV) to the contractor.
    (b) A PNOV must indicate:
    (1) The date, facts, and nature of each act or omission upon which 
each alleged violation is based;
    (2) The particular requirement involved in each alleged violation;
    (3) The proposed remedy for each alleged violation, including the 
amount of any civil penalty; and
    (4) The obligation of the contractor to submit a written reply to 
the Director within 30 calendar days of receipt of the PNOV.
    (c) A reply to a PNOV must contain a statement of all relevant facts 
pertaining to an alleged violation.
    (1) The reply must:
    (i) State any facts, explanations and arguments that support a 
denial of the alleged violation;
    (ii) Demonstrate any extenuating circumstances or other reason why a 
proposed remedy should not be imposed or should be mitigated;
    (iii) Discuss the relevant authorities that support the position 
asserted, including rulings, regulations, interpretations, and previous 
decisions issued by DOE; and
    (iv) Furnish full and complete answers to any questions set forth in 
the preliminary notice.
    (2) Copies of all relevant documents must be submitted with the 
reply.
    (d) If a contractor fails to submit a written reply within 30 
calendar days of receipt of a PNOV:
    (1) The contractor relinquishes any right to appeal any matter in 
the preliminary notice; and
    (2) The preliminary notice, including any proposed remedies therein, 
constitutes a final order.
    (e) A copy of the PNOV must be prominently posted, once final, at or 
near the location where the violation occurred until the violation is 
corrected.



Sec. 851.43  Final notice of violation.

    (a) If a contractor submits a written reply within 30 calendar days 
of receipt of a preliminary notice of violation (PNOV), that presents a 
disagreement with any aspect of the PNOV and civil penalty, the Director 
must review the submitted reply and make a final determination whether 
the contractor violated or is continuing to violate a requirement of 
this part.
    (b) Based on a determination by the Director that a contractor has 
violated or is continuing to violate a requirement of this part, the 
Director may issue to the contractor a final notice of violation that 
states concisely the determined violation and any remedy, including the 
amount of any civil penalty imposed on the contractor. The final notice 
of violation must state that the contractor may petition the Office of 
Hearings and Appeals for review of the final notice in accordance with 
10 CFR part 1003, subpart G.
    (c) If a contractor fails to submit a petition for review to the 
Office of Hearings and Appeals within 30 calendar days of receipt of a 
final notice of violation pursuant to Sec. 851.42:
    (1) The contractor relinquishes any right to appeal any matter in 
the final notice; and
    (2) The final notice, including any remedies therein, constitutes a 
final order.



Sec. 851.44  Administrative appeal.

    (a) Any contractor that receives a final notice of violation may 
petition the Office of Hearings and Appeals for review of the final 
notice in accordance with part 1003, subpart G of this title, within 30 
calendar days from receipt of the final notice.
    (b) In order to exhaust administrative remedies with respect to a 
final notice of violation, the contractor must petition the Office of 
Hearings and Appeals for review in accordance with paragraph (a) of this 
section.



Sec. 851.45  Direction to NNSA contractors.

    (a) Notwithstanding any other provision of this part, the NNSA 
Administrator, rather than the Director, signs, issues and serves the 
following actions that direct NNSA contractors:
    (1) Subpoenas;
    (2) Orders to compel attendance;
    (3) Disclosures of information or documents obtained during an 
investigation or inspection;

[[Page 617]]

    (4) Preliminary notices of violations; and
    (5) Final notices of violations.
    (b) The NNSA Administrator shall act after consideration of the 
Director's recommendation.



 Sec. Appendix A to Part 851--Worker Safety and Health Functional Areas

    This appendix establishes the mandatory requirements for 
implementing the applicable functional areas required by Sec. 851.24.

                         1. Construction Safety

    (a) For each separately definable construction activity (e.g., 
excavations, foundations, structural steel, roofing) the construction 
contractor must:
    (1) Prepare and have approved by the construction manager an 
activity hazard analysis prior to commencement of affected work. Such 
analyses must:
    (i) Identify foreseeable hazards and planned protective measures;
    (ii) Address further hazards revealed by supplemental site 
information (e.g., site characterization data, as-built drawings) 
provided by the construction manager;
    (iii) Provide drawings and/or other documentation of protective 
measures for which applicable Occupational Safety and Health 
Administration (OSHA) standards require preparation by a Professional 
Engineer or other qualified professional, and
    (iv) Identify competent persons required for workplace inspections 
of the construction activity, where required by OSHA standards.
    (2) Ensure workers are aware of foreseeable hazards and the 
protective measures described within the activity analysis prior to 
beginning work on the affected activity.
    (3) Require that workers acknowledge being informed of the hazards 
and protective measures associated with assigned work activities. Those 
workers failing to utilize appropriate protective measures must be 
subject to the construction contractor's disciplinary process.
    (b) During periods of active construction (i.e., excluding weekends, 
weather delays, or other periods of work inactivity), the construction 
contractor must have a designated representative on the construction 
worksite who is knowledgeable of the project's hazards and has full 
authority to act on behalf of the construction contractor. The 
contractor's designated representative must make frequent and regular 
inspections of the construction worksite to identify and correct any 
instances of noncompliance with project safety and health requirements.
    (c) Workers must be instructed to report to the construction 
contractor's designated representative, hazards not previously 
identified or evaluated. If immediate corrective action is not possible 
or the hazard falls outside of project scope, the construction 
contractor must immediately notify affected workers, post appropriate 
warning signs, implement needed interim control measures, and notify the 
construction manager of the action taken. The contractor or the 
designated representative must stop work in the affected area until 
appropriate protective measures are established.
    (d) The construction contractor must prepare a written construction 
project safety and health plan to implement the requirements of this 
section and obtain approval of the plan by the construction manager 
prior to commencement of any work covered by the plan. In the plan, the 
contractor must designate the individual(s) responsible for on-site 
implementation of the plan, specify qualifications for those 
individuals, and provide a list of those project activities for which 
subsequent hazard analyses are to be performed. The level of detail 
within the construction project safety and health plan should be 
commensurate with the size, complexity and risk level of the 
construction project. The content of this plan need not duplicate those 
provisions that were previously submitted and approved as required by 
Sec. 851.11.

                           2. Fire Protection

    (a) Contractors must implement a comprehensive fire safety and 
emergency response program to protect workers commensurate with the 
nature of the work that is performed. This includes appropriate facility 
and site-wide fire protection, fire alarm notification and egress 
features, and access to a fully staffed, trained, and equipped emergency 
response organization that is capable of responding in a timely and 
effective manner to site emergencies.
    (b) An acceptable fire protection program must include those fire 
protection criteria and procedures, analyses, hardware and systems, 
apparatus and equipment, and personnel that would comprehensively ensure 
that the objective in paragraph 2(a) of this section is met. This 
includes meeting applicable building codes and National Fire Protection 
Association codes and standards.

                          3. Explosives Safety

    (a) Contractors responsible for the use of explosive materials must 
establish and implement a comprehensive explosives safety program.
    (b) Contractors must comply with the policy and requirements 
specified in the DOE Manual 440.1-1A, DOE Explosives Safety Manual, 
Contractor Requirements Document

[[Page 618]]

(Attachment 2), January 9, 2006 (incorporated by reference, see Sec. 
851.27). A Contractor may choose a successor version, if approved by 
DOE.
    (c) Contractors must determine the applicability of the explosives 
safety directive requirements to research and development laboratory 
type operations consistent with the DOE level of protection criteria 
described in the explosives safety directive.

                           4. Pressure Safety

    (a) Contractors must establish safety policies and procedures to 
ensure that pressure systems are designed, fabricated, tested, 
inspected, maintained, repaired, and operated by trained and qualified 
personnel in accordance with applicable and sound engineering 
principles.
    (b) Contractors must ensure that all pressure vessels, boilers, air 
receivers, and supporting piping systems conform to:
    (1) The applicable American Society of Mechanical Engineers (ASME) 
Boiler and Pressure Vessel Code (2004); sections I through section XII 
including applicable Code Cases (incorporated by reference, see Sec. 
851.27)
    (2) The applicable ASME B31 (Code for Pressure Piping) standards as 
indicated below; and or as indicated in paragraph (b)(3) of this 
section:
    (i) B31.1--2001--Power Piping, and B31.1a--2002--Addenda to ASME 
B31.1--2001 (incorporated by reference, see Sec. 851.27);
    (ii) B31.2--1968--Fuel Gas Piping (incorporated by reference, see 
Sec. 851.27);
    (iii) B31.3--2002--Process Piping (incorporated by reference, see 
Sec. 851.27);
    (iv) B31.4--2002--Pipeline Transportation Systems for Liquid 
Hydrocarbons and Other Liquids (incorporated by reference, see Sec. 
851.27);
    (v) B31.5--2001--Refrigeration Piping and Heat Transfer Components, 
and B31.5a--2004, Addenda to ASME B31.5--2001 (incorporated by 
reference, see Sec. 851.27);
    (vi) B31.8--2003--Gas Transmission and Distribution Piping Systems 
(incorporated by reference, see Sec. 851.27);
    (vii) B31.8S--2001--Managing System Integrity of Gas Pipelines 
(incorporated by reference, see Sec. 851.27);
    (viii) B31.9--1996--Building Services Piping (incorporated by 
reference, see Sec. 851.27);
    (ix) B31.11--2002--Slurry Transportation Piping Systems 
(incorporated by reference, see Sec. 851.27); and
    (x) B31G--1991--Manual for Determining Remaining Strength of 
Corroded Pipelines (incorporated by reference, see Sec. 851.27).
    (3) The strictest applicable state and local codes.
    (c) When national consensus codes are not applicable (because of 
pressure range, vessel geometry, use of special materials, etc.), 
contractors must implement measures to provide equivalent protection and 
ensure a level of safety greater than or equal to the level of 
protection afforded by the ASME or applicable state or local code. 
Measures must include the following:
    (1) Design drawings, sketches, and calculations must be reviewed and 
approved by a qualified independent design professional (i.e., 
professional engineer). Documented organizational peer review is 
acceptable.
    (2) Qualified personnel must be used to perform examinations and 
inspections of materials, in-process fabrications, non-destructive 
tests, and acceptance test.
    (3) Documentation, traceability, and accountability must be 
maintained for each unique pressure vessel or system, including 
descriptions of design, pressure conditions, testing, inspection, 
operation, repair, and maintenance.

                           5. Firearms Safety

    (a) A contractor engaged in DOE activities involving the use of 
firearms must establish firearms safety policies and procedures for 
security operations, and training to ensure proper accident prevention 
controls are in place.
    (1) Written procedures must address firearms safety, engineering and 
administrative controls, as well as personal protective equipment 
requirements.
    (2) As a minimum, procedures must be established for:
    (i) Storage, handling, cleaning, inventory, and maintenance of 
firearms and associated ammunition;
    (ii) Activities such as loading, unloading, and exchanging firearms. 
These procedures must address use of bullet containment devices and 
those techniques to be used when no bullet containment device is 
available;
    (iii) Use and storage of pyrotechnics, explosives, and/or explosive 
projectiles;
    (iv) Handling misfires, duds, and unauthorized discharges;
    (v) Live fire training, qualification, and evaluation activities;
    (vi) Training and exercises using engagement simulation systems;
    (vii) Medical response at firearms training facilities; and
    (viii) Use of firing ranges by personnel other than DOE or DOE 
contractor protective forces personnel.
    (b) Contractors must ensure that personnel responsible for the 
direction and operation of the firearms safety program are 
professionally qualified and have sufficient time and authority to 
implement the procedures under this section.
    (c) Contractors must ensure that firearms instructors and armorers 
have been certified by the Safeguards and Security National Training 
Center to conduct the level of activity provided. Personnel must not be 
allowed to conduct activities for which they have not been certified.

[[Page 619]]

    (d) Contractors must conduct formal appraisals assessing 
implementation of procedures, personnel responsibilities, and duty 
assignments to ensure overall policy objectives and performance criteria 
are being met by qualified personnel.
    (e) Contractors must implement procedures related to firearms 
training, live fire range safety, qualification, and evaluation 
activities, including procedures requiring that:
    (1) Personnel must successfully complete initial firearms safety 
training before being issued any firearms. Authorization to remain in 
armed status will continue only if the employee demonstrates the 
technical and practical knowledge of firearms safety semi-annually;
    (2) Authorized armed personnel must demonstrate through documented 
limited scope performance tests both technical and practical knowledge 
of firearms handling and safety on a semi-annual basis;
    (3) All firearms training lesson plans must incorporate safety for 
all aspects of firearms training task performance standards. The lesson 
plans must follow the standards set forth by the Safeguards and Security 
Central Training Academy's standard training programs;
    (4) Firearms safety briefings must immediately precede training, 
qualifications, and evaluation activities involving live fire and/or 
engagement simulation systems;
    (5) A safety analysis approved by the Head of DOE Field Element must 
be developed for the facilities and operation of each live fire range 
prior to implementation of any new training, qualification, or 
evaluation activity. Results of these analyses must be incorporated into 
procedures, lesson plans, exercise plans, and limited scope performance 
tests;
    (6) Firing range safety procedures must be conspicuously posted at 
all range facilities; and
    (7) Live fire ranges, approved by the Head of DOE Field Element, 
must be properly sited to protect personnel on the range, as well as 
personnel and property not associated with the range.
    (f) Contractors must ensure that the transportation, handling, 
placarding, and storage of munitions conform to the applicable DOE 
requirements.

                          6. Industrial Hygiene

    Contractors must implement a comprehensive industrial hygiene 
program that includes at least the following elements:
    (a) Initial or baseline surveys and periodic resurveys and/or 
exposure monitoring as appropriate of all work areas or operations to 
identify and evaluate potential worker health risks;
    (b) Coordination with planning and design personnel to anticipate 
and control health hazards that proposed facilities and operations would 
introduce;
    (c) Coordination with cognizant occupational medical, environmental, 
health physics, and work planning professionals;
    (d) Policies and procedures to mitigate the risk from identified and 
potential occupational carcinogens;
    (e) Professionally and technically qualified industrial hygienists 
to manage and implement the industrial hygiene program; and
    (f) Use of respiratory protection equipment tested under the DOE 
Respirator Acceptance Program for Supplied-air Suits (DOE-Technical 
Standard-1167-2003) when National Institute for Occupational Safety and 
Health-approved respiratory protection does not exist for DOE tasks that 
require such equipment. For security operations conducted in accordance 
with Presidential Decision Directive 39, U.S. POLICY ON COUNTER 
TERRORISM, use of Department of Defense military type masks for 
respiratory protection by security personnel is acceptable.

                          7. Biological Safety

    (a) Contractors must establish and implement a biological safety 
program that:
    (1) Establishes an Institutional Biosafety Committee (IBC) or 
equivalent. The IBC must:
    (i) Review any work with biological etiologic agents for compliance 
with applicable Centers for Disease Control and Prevention (CDC), 
National Institutes of Health (NIH), World Health Organization (WHO), 
and other international, Federal, State, and local guidelines and assess 
the containment level, facilities, procedures, practices, and training 
and expertise of personnel; and
    (ii) Review the site's security, safeguards, and emergency 
management plans and procedures to ensure they adequately consider work 
involving biological etiologic agents.
    (2) Maintains an inventory and status of biological etiologic 
agents, and provide to the responsible field and area office, through 
the laboratory IBC (or its equivalent), an annual status report 
describing the status and inventory of biological etiologic agents and 
the biological safety program.
    (3) Provides for submission to the appropriate Head of DOE Field 
Element, for review and concurrence before transmittal to the Centers 
for Disease Control and Prevention (CDC), each Laboratory Registration/
Select Agent Program registration application package requesting 
registration of a laboratory facility for the purpose of transferring, 
receiving, or handling biological select agents.
    (4) Provides for submission to the appropriate Head of DOE Field 
Element, a copy of each CDC Form EA-101, Transfer of Select Agents, upon 
initial submission of the Form EA-101 to a vendor or other supplier 
requesting or ordering a biological select agent for

[[Page 620]]

transfer, receipt, and handling in the registered facility. Submit to 
the appropriate Head of DOE Field Element the completed copy of the Form 
EA-101, documenting final disposition and/or destruction of the select 
agent, within 10 days of completion of the Form EA-101.
    (5) Confirms that the site safeguards and security plans and 
emergency management programs address biological etiologic agents, with 
particular emphasis on biological select agents.
    (6) Establishes an immunization policy for personnel working with 
biological etiologic agents based on the evaluation of risk and benefit 
of immunization.
    (b) [Reserved]

                        8. Occupational Medicine

    (a) Contractors must establish and provide comprehensive 
occupational medicine services to workers employed at a covered work 
place who:
    (1) Work on a DOE site for more than 30 days in a 12-month period; 
or
    (2) Are enrolled for any length of time in a medical or exposure 
monitoring program required by this rule and/or any other applicable 
Federal, State or local regulation, or other obligation.
    (b) The occupational medicine services must be under the direction 
of a graduate of a school of medicine or osteopathy who is licensed for 
the practice of medicine in the state in which the site is located.
    (c) Occupational medical physicians, occupational health nurses, 
physician's assistants, nurse practitioners, psychologists, employee 
assistance counselors, and other occupational health personnel providing 
occupational medicine services must be licensed, registered, or 
certified as required by Federal or State law where employed.
    (d) Contractors must provide the occupational medicine providers 
access to hazard information by promoting its communication, 
coordination, and sharing among operating and environment, safety, and 
health protection organizations.
    (1) Contractors must provide the occupational medicine providers 
with access to information on the following:
    (i) Current information about actual or potential work-related site 
hazards (chemical, radiological, physical, biological, or ergonomic);
    (ii) Employee job-task and hazard analysis information, including 
essential job functions;
    (iii) Actual or potential work-site exposures of each employee; and
    (iv) Personnel actions resulting in a change of job functions, 
hazards or exposures.
    (2) Contractors must notify the occupational medicine providers when 
an employee has been absent because of an injury or illness for more 
than 5 consecutive workdays (or an equivalent time period for those 
individuals on an alternative work schedule);
    (3) Contractors must provide the occupational medicine provider 
information on, and the opportunity to participate in, worker safety and 
health team meetings and committees;
    (4) Contractors must provide occupational medicine providers access 
to the workplace for evaluation of job conditions and issues relating to 
workers' health.
    (e) A designated occupational medicine provider must:
    (1) Plan and implement the occupation medicine services; and
    (2) Participate in worker protection teams to build and maintain 
necessary partnerships among workers, their representatives, managers, 
and safety and health protection specialists in establishing and 
maintaining a safe and healthful workplace.
    (f) A record, containing any medical, health history, exposure 
history, and demographic data collected for the occupational medicine 
purposes, must be developed and maintained for each employee for whom 
medical services are provided. All occupational medical records must be 
maintained in accordance with Executive Order 13335, Incentives for the 
Use of Health Information Technology.
    (1) Employee medical, psychological, and employee assistance program 
(EAP) records must be kept confidential, protected from unauthorized 
access, and stored under conditions that ensure their long-term 
preservation. Psychological records must be maintained separately from 
medical records and in the custody the designated psychologist in 
accordance with 10 CFR 712.38(b)(2).
    (2) Access to these records must be provided in accordance with DOE 
regulations implementing the Privacy Act and the Energy Employees 
Occupational Illness Compensation Program Act.
    (g) The occupational medicine services provider must determine the 
content of the worker health evaluations, which must be conducted under 
the direction of a licensed physician, in accordance with current sound 
and acceptable medical practices and all pertinent statutory and 
regulatory requirements, such as the Americans with Disabilities Act.
    (1) Workers must be informed of the purpose and nature of the 
medical evaluations and tests offered by the occupational medicine 
provider.
    (i) The purpose, nature and results of evaluations and tests must be 
clearly communicated verbally and in writing to each worker provided 
testing;
    (ii) The communication must be documented in the worker's medical 
record; and
    (2) The following health evaluations must be conducted when 
determined necessary by

[[Page 621]]

the occupational medicine provider for the purpose of providing initial 
and continuing assessment of employee fitness for duty.
    (i) At the time of employment entrance or transfer to a job with new 
functions and hazards, a medical placement evaluation of the 
individual's general health and physical and psychological capacity to 
perform work will establish a baseline record of physical condition and 
assure fitness for duty.
    (ii) Periodic, hazard-based medical monitoring or qualification-
based fitness for duty evaluations required by regulations and 
standards, or as recommended by the occupational medicine services 
provider, will be provided on the frequency required.
    (iii) Diagnostic examinations will evaluate employee's injuries and 
illnesses to determine work-relatedness, the applicability of medical 
restrictions, and referral for definitive care, as appropriate.
    (iv) After a work-related injury or illness or an absence due to any 
injury or illness lasting 5 or more consecutive workdays (or an 
equivalent time period for those individuals on an alternative work 
schedule), a return to work evaluation will determine the individual's 
physical and psychological capacity to perform work and return to duty.
    (v) At the time of separation from employment, individuals shall be 
offered a general health evaluation to establish a record of physical 
condition.
    (h) The occupational medicine provider must monitor ill and injured 
workers to facilitate their rehabilitation and safe return to work and 
to minimize lost time and its associated costs.
    (1) The occupational medicine provider must place an individual 
under medical restrictions when health evaluations indicate that the 
worker should not perform certain job tasks. The occupational medicine 
provider must notify the worker and contractor management when employee 
work restrictions are imposed or removed.
    (i) Occupational medicine provider physician and medical staff must, 
on a timely basis, communicate results of health evaluations to 
management and safety and health protection specialists to facilitate 
the mitigation of worksite hazards.
    (j) The occupational medicine provider must include measures to 
identify and manage the principal preventable causes of premature 
morbidity and mortality affecting worker health and productivity.
    (1) The contractor must include programs to prevent and manage these 
causes of morbidity when evaluations demonstrate their cost 
effectiveness.
    (2) Contractors must make available to the occupational medicine 
provider appropriate access to information from health, disability, and 
other insurance plans (de-identified as necessary) in order to 
facilitate this process.
    (k) The occupational medicine services provider must review and 
approve the medical and behavioral aspects of employee counseling and 
health promotional programs, including the following types:
    (1) Contractor-sponsored or contractor-supported EAPs;
    (2) Contractor-sponsored or contractor-supported alcohol and other 
substance abuse rehabilitation programs; and
    (3) Contractor-sponsored or contractor-supported wellness programs.
    (4) The occupational medicine services provider must review the 
medical aspects of immunization programs, blood-borne pathogens 
programs, and bio-hazardous waste programs to evaluate their conformance 
to applicable guidelines.
    (5) The occupational medicine services provider must develop and 
periodically review medical emergency response procedures included in 
site emergency and disaster preparedness plans. The medical emergency 
responses must be integrated with nearby community emergency and 
disaster plans.

                         9. Motor Vehicle Safety

    (a) Contractors must implement a motor vehicle safety program to 
protect the safety and health of all drivers and passengers in 
Government-owned or -leased motor vehicles and powered industrial 
equipment (i.e., fork trucks, tractors, platform lift trucks, and other 
similar specialized equipment powered by an electric motor or an 
internal combustion engine).
    (b) The contractor must tailor the motor vehicle safety program to 
the individual DOE site or facility, based on an analysis of the needs 
of that particular site or facility.
    (c) The motor vehicle safety program must address, as applicable to 
the contractor's operations:
    (1) Minimum licensing requirements (including appropriate testing 
and medical qualification) for personnel operating motor vehicles and 
powered industrial equipment;
    (2) Requirements for the use of seat belts and provision of other 
safety devices;
    (3) Training for specialty vehicle operators;
    (4) Requirements for motor vehicle maintenance and inspection;
    (5) Uniform traffic and pedestrian control devices and road signs;
    (6) On-site speed limits and other traffic rules;
    (7) Awareness campaigns and incentive programs to encourage safe 
driving; and
    (8) Enforcement provisions.

                          10. Electrical Safety

    Contractors must implement a comprehensive electrical safety program 
appropriate for the activities at their site. This program

[[Page 622]]

must meet the applicable electrical safety codes and standards 
referenced in Sec. 851.23.

                   11. Nanotechnology Safety--Reserved

    The Department has chosen to reserve this section since policy and 
procedures for nanotechnology safety are currently being developed. Once 
these policies and procedures have been approved, the rule will be 
amended to include them through a rulemaking consistent with the 
Administrative Procedure Act.

               12. Workplace Violence Prevention--Reserved

    The Department has chosen to reserve this section since the policy 
and procedures for workplace violence prevention are currently being 
developed. Once these policies and procedures have been approved, the 
rule will be amended to include them through a rulemaking consistent 
with the Administrative Procedure Act.

[71 FR 6931, Feb. 9, 2006; 71 FR 36661, June 28, 2006]



  Sec. Appendix B to Part 851--General Statement of Enforcement Policy

                             I. Introduction

    (a) This policy statement sets forth the general framework through 
which the U.S. Department of Energy (DOE) will seek to ensure compliance 
with its worker safety and health regulations, and, in particular, 
exercise the civil penalty authority provided to DOE in section 3173 of 
Public Law 107-314, Bob Stump National Defense Authorization Act for 
Fiscal Year 2003 (December 2, 2002) (``NDAA''), amending the Atomic 
Energy Act (AEA) to add section 234C. The policy set forth herein is 
applicable to violations of safety and health regulations in this part 
by DOE contractors, including DOE contractors who are indemnified under 
the Price-Anderson Act, 42 U.S.C. 2210(d), and their subcontractors and 
suppliers (hereafter collectively referred to as DOE contractors). This 
policy statement is not a regulation and is intended only to provide 
general guidance to those persons subject to the regulations in this 
part. It is not intended to establish a ``cookbook'' approach to the 
initiation and resolution of situations involving noncompliance with the 
regulations in this part. Rather, DOE intends to consider the particular 
facts of each noncompliance in determining whether enforcement sanctions 
are appropriate and, if so, the appropriate magnitude of those 
sanctions. DOE may well deviate from this policy statement when 
appropriate in the circumstances of particular cases. This policy 
statement is not applicable to activities and facilities covered under 
E.O. 12344, 42 U.S.C. 7158 note, pertaining to Naval Nuclear Propulsion, 
or otherwise excluded from the scope of the rule.
    (b) The DOE goal in the compliance arena is to enhance and protect 
the safety and health of workers at DOE facilities by fostering a 
culture among both the DOE line organizations and the contractors that 
actively seeks to attain and sustain compliance with the regulations in 
this part. The enforcement program and policy have been developed with 
the express purpose of achieving safety inquisitiveness and voluntary 
compliance. DOE will establish effective administrative processes and 
positive incentives to the contractors for the open and prompt 
identification and reporting of noncompliances, performance of effective 
root cause analysis, and initiation of comprehensive corrective actions 
to resolve both noncompliance conditions and program or process 
deficiencies that led to noncompliance.
    (c) In the development of the DOE enforcement policy, DOE recognizes 
that the reasonable exercise of its enforcement authority can help to 
reduce the likelihood of serious incidents. This can be accomplished by 
placing greater emphasis on a culture of safety in existing DOE 
operations, and strong incentives for contractors to identify and 
correct noncompliance conditions and processes in order to protect human 
health and the environment. DOE wants to facilitate, encourage, and 
support contractor initiatives for the prompt identification and 
correction of noncompliances. DOE will give due consideration to such 
initiatives and activities in exercising its enforcement discretion.
    (d) DOE may modify or remit civil penalties in a manner consistent 
with the adjustment factors set forth in this policy with or without 
conditions. DOE will carefully consider the facts of each case of 
noncompliance and will exercise appropriate discretion in taking any 
enforcement action. Part of the function of a sound enforcement program 
is to assure a proper and continuing level of safety vigilance. The 
reasonable exercise of enforcement authority will be facilitated by the 
appropriate application of safety requirements to DOE facilities and by 
promoting and coordinating the proper contractor and DOE safety 
compliance attitude toward those requirements.

                               II. Purpose

    The purpose of the DOE enforcement program is to promote and protect 
the safety and health of workers at DOE facilities by:
    (a) Ensuring compliance by DOE contractors with the regulations in 
this part.
    (b) Providing positive incentives for DOE contractors based on:
    (1) Timely self-identification of worker safety noncompliances;

[[Page 623]]

    (2) Prompt and complete reporting of such noncompliances to DOE;
    (3) Prompt correction of safety noncompliances in a manner that 
precludes recurrence; and
    (4) Identification of modifications in practices or facilities that 
can improve worker safety and health.
    (c) Deterring future violations of DOE requirements by a DOE 
contractor.
    (d) Encouraging the continuous overall improvement of operations at 
DOE facilities.

                        III. Statutory Authority

    The Department of Energy Organization Act, 42 U.S.C. 7101-7385o, the 
Energy Reorganization Act of 1974 (ERA), 42 U.S.C. 5801-5911, and the 
Atomic Energy Act of 1954, as amended, (AEA) 42 U.S.C. 2011, require DOE 
to protect the public safety and health, as well as the safety and 
health of workers at DOE facilities, in conducting its activities, and 
grant DOE broad authority to achieve this goal. Section 234C of the AEA 
makes DOE contractors (and their subcontractors and suppliers thereto) 
covered by the DOE Price-Anderson indemnification system, subject to 
civil penalties for violations of the worker safety and health 
requirements promulgated in this part. 42 U.S.C. 2282c.

                          IV. Responsibilities

    (a) The Director, as the principal enforcement officer of the DOE, 
has been delegated the authority to:
    (1) Conduct enforcement inspections, investigations, and 
conferences;
    (2) Issue Notices of Violations and proposed civil penalties, 
Enforcement Letters, Consent Orders, and subpoenas; and
    (3) Issue orders to compel attendance and disclosure of information 
or documents obtained during an investigation or inspection. The 
Secretary issues Compliance Orders.
    (b) The NNSA Administrator, rather than the Director, signs, issues 
and serves the following actions that direct NNSA contractors:
    (1) Subpoenas;
    (2) Orders to compel attendance; and
    (3) Determines to disclose information or documents obtained during 
an investigation or inspection, PNOVs, Notices of Violations, and Final 
Notices of Violations. The NNSA Administrator acts after consideration 
of the Director's recommendation.

                         V. Procedural Framework

    (a) Title 10 CFR part 851 sets forth the procedures DOE will use in 
exercising its enforcement authority, including the issuance of Notices 
of Violation and the resolution of an administrative appeal in the event 
a DOE contractor elects to petition the Office of Hearings and Appeals 
for review.
    (b) Pursuant to 10 CFR part 851 subpart E, the Director initiates 
the enforcement process by initiating and conducting investigations and 
inspections and issuing a Preliminary Notice of Violation (PNOV) with or 
without a proposed civil penalty. The DOE contractor is required to 
respond in writing to the PNOV within 30 days, either: (1) Admitting the 
violation and waiving its right to contest the proposed civil penalty 
and paying it; (2) admitting the violation but asserting the existence 
of mitigating circumstances that warrant either the total or partial 
remission of the civil penalty; or (3) denying that the violation has 
occurred and providing the basis for its belief that the PNOV is 
incorrect. After evaluation of the DOE contractor's response, the 
Director may determine: (1) That no violation has occurred; (2) that the 
violation occurred as alleged in the PNOV but that the proposed civil 
penalty should be remitted in whole or in part; or (3) that the 
violation occurred as alleged in the PNOV and that the proposed civil 
penalty is appropriate, notwithstanding the asserted mitigating 
circumstances. In the latter two instances, the Director will issue a 
Final Notice of Violation (FNOV) or an FNOV and proposed civil penalty.
    (c) An opportunity to challenge an FNOV is provided in 
administrative appeal provisions. See 10 CFR 851.44. Any contractor that 
receives an FNOV may petition the Office of Hearings and Appeals for 
review of the final notice in accordance with 10 CFR part 1003, Subpart 
G, within 30 calendar days from receipt of the final notice. An 
administrative appeal proceeding is not initiated until the DOE 
contractor against which an FNOV has been issued requests an 
administrative hearing rather than waiving its right to contest the FNOV 
and proposed civil penalty, if any, and paying the civil penalty. 
However, it should be emphasized that DOE encourages the voluntary 
resolution of a noncompliance situation at any time, either informally 
prior to the initiation of the enforcement process or by consent order 
before or after any formal proceeding has begun.

                       VI. Severity of Violations

    (a) Violations of the worker safety and health requirements in this 
part have varying degrees of safety and health significance. Therefore, 
the relative safety and health risk of each violation must be identified 
as the first step in the enforcement process. Violations of the worker 
safety and health requirements are categorized in two levels of severity 
to identify their relative seriousness. Notices of Violation issued for 
noncompliance when appropriate, propose civil penalties commensurate 
with the severity level of the violations involved.
    (b) To assess the potential safety and health impact of a particular 
violation, DOE

[[Page 624]]

will categorize the potential severity of violations of worker safety 
and health requirements as follows:
    (1) A Severity Level I violation is a serious violation. A serious 
violation shall be deemed to exist in a place of employment if there is 
a potential that death or serious physical harm could result from a 
condition which exists, or from one or more practices, means, methods, 
operations, or processes which have been adopted or are in use, in such 
place of employment. A Severity Level I violation would be subject to a 
base civil penalty of up to 100% of the maximum base civil penalty of 
$75,000.
    (2) A Severity Level II violation is an other-than-serious 
violation. An other-than-serious violation occurs where the most serious 
injury or illness that would potentially result from a hazardous 
condition cannot reasonably be predicted to cause death or serious 
physical harm to employees but does have a direct relationship to their 
safety and health. A Severity Level II violation would be subject to a 
base civil penalty up to 50% of the maximum base civil penalty 
($37,500).
    (c) De minimis violations, defined as a deviation from the 
requirement of a standard that has no direct or immediate relationship 
to safety or health, will not be the subject of formal enforcement 
action through the issuance of a Notice of Violation.

                      VII. Enforcement Conferences

    (a) The purpose of the enforcement conference is to:
    (1) Assure the accuracy of the facts upon which the preliminary 
determination to consider enforcement action is based;
    (2) Discuss the potential or alleged violations, their significance 
and causes, and the nature of and schedule for the DOE contractor's 
corrective actions;
    (3) Determine whether there are any aggravating or mitigating 
circumstances; and
    (4) Obtain other information which will help determine whether 
enforcement action is appropriate and, if so, the extent of that 
enforcement action.
    (b) All enforcement conferences are convened at the discretion of 
the Director.
    (c) The PNOV will normally be issued promptly, before the 
opportunity for an enforcement conference, following the inspection/
investigation. In some cases an enforcement conference may be conducted 
onsite at the conclusion of an inspection/investigation.
    (d) The contractor may request an enforcement conference if they 
believe additional information pertinent to the enforcement action could 
best be conveyed through a meeting.
    (e) DOE contractors will be informed prior to a meeting when that 
meeting is considered to be an enforcement conference. Such conferences 
are informal mechanisms for candid discussions regarding potential or 
alleged violations and will not normally be open to the public. In 
circumstances for which immediate enforcement action is necessary in the 
interest of worker safety and health, such action will be taken prior to 
the enforcement conference, which may still be held after the necessary 
DOE action has been taken.

                        VIII. Enforcement Letter

    (a) In cases where DOE has decided not to conduct an investigation 
or inspection or issue a Preliminary Notice of Violation (PNOV), DOE may 
send an Enforcement Letter, signed by the Director to the contractor. 
The Enforcement Letter is intended to communicate the basis of the 
decision not to pursue enforcement action for a noncompliance. The 
Enforcement Letter is intended to direct contractors to the desired 
level of worker safety and health performance. It may be used when DOE 
concludes that the specific noncompliance at issue is not of the level 
of significance warranted to conduct an investigation or inspection or 
for issuance of a PNOV. Even where a noncompliance may be significant, 
the Enforcement Letter may recognize that the contractor's actions may 
have attenuated the need for enforcement action. The Enforcement Letter 
will typically recognize how the contractor handled the circumstances 
surrounding the noncompliance, address additional areas requiring the 
contractor's attention, and address DOE's expectations for corrective 
action.
    (b) In general, Enforcement Letters communicate DOE's expectations 
with respect to any aspect of the requirements of this part, including 
identification and reporting of issues, corrective actions, and 
implementation of the contractor's safety and health program. DOE might, 
for example, wish to recognize some action of the contractor that is of 
particular benefit to worker safety and health that is a candidate for 
emulation by other contractors. On the other hand, DOE may wish to bring 
a program shortcoming to the attention of the contractor that, but for 
the lack of worker safety and health significance of the immediate 
issue, might have resulted in the issuance of a PNOV. An Enforcement 
Letter is not an enforcement action.
    (c) With respect to many noncompliances, an Enforcement Letter may 
not be required. When DOE decides that a contractor has appropriately 
corrected a noncompliance or that the significance of the noncompliance 
is sufficiently low, it may close out its review simply through an 
annotation in the DOE Noncompliance Tracking System (NTS). A closeout of 
a noncompliance with or without an Enforcement Letter may only take 
place after DOE has confirmed that corrective actions have been 
completed.

[[Page 625]]

                         IX. Enforcement Actions

    (a) This section describes the enforcement sanctions available to 
DOE and specifies the conditions under which each may be used. The basic 
sanctions are Notices of Violation and civil penalties.
    (b) The nature and extent of the enforcement action is intended to 
reflect the seriousness of the violation. For the vast majority of 
violations for which DOE assigns severity levels as described 
previously, a Notice of Violation will be issued, requiring a formal 
response from the recipient describing the nature of and schedule for 
corrective actions it intends to take regarding the violation.

                         1. Notice of Violation

    (a) A Notice of Violation (either a Preliminary or Final Notice) is 
a document setting forth the conclusion of DOE and the basis to support 
the conclusion, that one or more violations of the worker safety and 
health requirements have occurred. Such a notice normally requires the 
recipient to provide a written response which may take one of several 
positions described in section V of this policy statement. In the event 
that the recipient concedes the occurrence of the violation, it is 
required to describe corrective steps which have been taken and the 
results achieved; remedial actions which will be taken to prevent 
recurrence; and the date by which full compliance will be achieved.
    (b) DOE will use the Notice of Violation as the standard method for 
formalizing the existence of a violation and, in appropriate cases as 
described in this section, the Notice of Violation will be issued in 
conjunction with the proposed imposition of a civil penalty. In certain 
limited instances, as described in this section, DOE may refrain from 
the issuance of an otherwise appropriate Notice of Violation. However, a 
Notice of Violation will virtually always be issued for willful 
violations, or if past corrective actions for similar violations have 
not been sufficient to prevent recurrence and there are no other 
mitigating circumstances.
    (c) DOE contractors are not ordinarily cited for violations 
resulting from matters not within their control, such as equipment 
failures that were not avoidable by reasonable quality assurance 
measures, proper maintenance, or management controls. With regard to the 
issue of funding, however, DOE does not consider an asserted lack of 
funding to be a justification for noncompliance with the worker safety 
and health requirements.
    (d) DOE expects its contractors to have the proper management and 
supervisory systems in place to assure that all activities at covered 
workplaces, regardless of who performs them, are carried out in 
compliance with all the worker safety and health requirements. 
Therefore, contractors are normally held responsible for the acts of 
their employees and subcontractor employees in the conduct of activities 
at covered workplaces. Accordingly, this policy should not be construed 
to excuse personnel errors.
    (e) The limitations on remedies under section 234C will be 
implemented as follows:
    (1) DOE may assess civil penalties of up to $75,000 per violation 
per day on contractors (and their subcontractors and suppliers) that are 
indemnified by the Price-Anderson Act, 42 U.S.C. 2210(d). See 10 CFR 
851.5(a).
    (2) DOE may seek contract fee reductions through the contract's 
Conditional Payment of Fee Clause in the Department of Energy 
Acquisition Regulation (DEAR). See 10 CFR 851.4(b); 48 CFR parts 923, 
952, 970. Policies for contract fee reductions are not established by 
this policy statement. The Director and appropriate contracting officers 
will coordinate their efforts in compliance with the statute. See 10 CFR 
851.5(b).
    (3) For the same violation of a worker safety and health requirement 
in this part, DOE may pursue either civil penalties (for indemnified 
contractors and their subcontractors and suppliers) or a contract fee 
reduction, but not both. See 10 CFR 851.5(c).
    (4) A ceiling applies to civil penalties assessed on certain 
contractors specifically listed in 170d. of the Atomic Energy Act, 42 
U.S.C. 2282a(d), for activities conducted at specified facilities. For 
these contractors, the total amount of civil penalties and contract 
penalties in a fiscal year may not exceed the total amount of fees paid 
by DOE to that entity in that fiscal year. See 10 CFR 851.5(d).

                            2. Civil Penalty

    (a) A civil penalty is a monetary penalty that may be imposed for 
violations of requirements of this part. See 10 CFR 851.5(a). Civil 
penalties are designed to emphasize the need for lasting remedial 
action, deter future violations, and underscore the importance of DOE 
contractor self-identification, reporting, and correction of violations 
of the worker safety and health requirements in this part.
    (b) Absent mitigating circumstances as described below, or 
circumstances otherwise warranting the exercise of enforcement 
discretion by DOE as described in this section, civil penalties will be 
proposed for Severity Level I and II violations.
    (c) DOE will impose different base level penalties considering the 
severity level of the violation. Table A-1 shows the daily base civil 
penalties for the various categories of severity levels. However, as 
described below in section IX, paragraph b.3, the imposition of civil 
penalties will also take into account the gravity, circumstances, and 
extent of the violation or violations and, with respect to

[[Page 626]]

the violator, any history of prior similar violations and the degree of 
culpability and knowledge.
    (d) Enforcement personnel will use risk-based criteria to assist the 
Director in determining appropriate civil penalties for violations found 
during investigations and inspections.
    (e) Regarding the factor of ability of DOE contractors to pay the 
civil penalties, it is not DOE's intention that the economic impact of a 
civil penalty be such that it puts a DOE contractor out of business. 
Contract termination, rather than civil penalties, is used when the 
intent is to terminate these activities. The deterrent effect of civil 
penalties is best served when the amount of such penalties takes this 
factor into account. However, DOE will evaluate the relationship of 
affiliated entities to the contractor (such as parent corporations) when 
the contractor asserts that it cannot pay the proposed penalty.
    (f) DOE will review each case on its own merits and adjust the base 
civil penalty values upward or downward. As indicated below, Table A-1 
identifies the daily base civil penalty values for different severity 
levels. After considering all relevant circumstances, civil penalties 
may be adjusted up or down based on the mitigating or aggravating 
factors described later in this section. In no instance will a civil 
penalty for any one violation exceed the statutory limit of $75,000 per 
day. In cases where the DOE contractor had knowledge of a violation and 
has not reported it to DOE and taken corrective action despite an 
opportunity to do so, DOE will consider utilizing its per day civil 
penalty authority. Further, as described in this section, the duration 
of a violation will be taken into account in adjusting the base civil 
penalty.

             Table A-1--Severity Level Base Civil Penalties
------------------------------------------------------------------------
                                                           Base civil
                                                         penalty amount
                                                         (Percentage of
                    Severity level                         maximum per
                                                          violation per
                                                              day)
------------------------------------------------------------------------
I.....................................................               100
II....................................................                50
------------------------------------------------------------------------

                          3. Adjustment Factors

    (a) DOE may reduce a penalty based on mitigating circumstances or 
increase a penalty based on aggravating circumstances. DOE's enforcement 
program is not an end in itself, but a means to achieve compliance with 
the worker safety and health requirements in this part. Civil penalties 
are intended to emphasize the importance of compliance and to deter 
future violations. The single most important goal of the DOE enforcement 
program is to encourage early identification and reporting of violations 
of the worker safety and health requirements in this part by the DOE 
contractors themselves rather than by DOE, and the prompt correction of 
any violations so identified. DOE believes that DOE contractors are in 
the best position to identify and promptly correct noncompliance with 
the worker safety and health requirements in this part. DOE expects that 
these contractors should have in place internal compliance programs 
which will ensure the detection, reporting, and prompt correction of 
conditions that may constitute, or lead to, violations of the worker 
safety and health requirements in this part, before, rather than after, 
DOE has identified such violations. Thus, DOE contractors should almost 
always be aware of worker safety and health noncompliances before they 
are discovered by DOE. Obviously, worker safety and health is enhanced 
if noncompliances are discovered (and promptly corrected) by the DOE 
contractor, rather than by DOE, which may not otherwise become aware of 
a noncompliance until later, during the course of an inspection, 
performance assessment, or following an incident at the facility. Early 
identification of worker safety and health-related noncompliances by DOE 
contractors has the added benefit of allowing information that could 
prevent such noncompliances at other facilities in the DOE complex to be 
shared with other appropriate DOE contractors.
    (b) Pursuant to this enforcement philosophy, DOE will provide 
substantial incentive for the early self-identification, reporting, and 
prompt correction of conditions which constitute, or could lead to, 
violations of the worker safety and health requirements. Thus, the civil 
penalty may be reduced for violations that are identified, reported, and 
promptly and effectively corrected by the DOE contractor.
    (c) On the other hand, ineffective programs for problem 
identification and correction are aggravating circumstances and may 
increase the penalty amount. Thus, for example, where a contractor fails 
to disclose and promptly correct violations of which it was aware or 
should have been aware, substantial civil penalties are warranted and 
may be sought, including the assessment of civil penalties for 
continuing violations on a per day basis.
    (d) Further, in cases involving factors of willfulness, repeated 
violations, death, serious injury, patterns of systemic violations, DOE-
identified flagrant violations, repeated poor performance in an area of 
concern, or serious breakdown in management controls, DOE intends to 
apply its full statutory enforcement authority where such action is 
warranted.
    (e) Additionally, adjustment to the amount of civil penalty will be 
dependent, in part, on

[[Page 627]]

the degree of culpability of the DOE contractor with regard to the 
violation. Thus, inadvertent violations will be viewed differently from 
those in which there is gross negligence, deception, or willfulness. In 
addition to the severity of the underlying violation and level of 
culpability involved, DOE will also consider the position, training and 
experience of those involved in the violation. Thus, for example, a 
violation may be deemed to be more significant if a senior manager of an 
organization is involved rather than a foreman or non-supervisory 
employee.
    (f) Other factors that will be considered in determining the civil 
penalty amount are the duration of the violation (how long the condition 
has presented a potential exposure to workers), the extent of the 
condition (number of instances of the violation), the frequency of the 
exposure (how often workers are exposed), the proximity of the workers 
to the exposure, and the past history of similar violations.
    (g) DOE expects contractors to provide full, complete, timely, and 
accurate information and reports. Accordingly, the penalty amount for a 
violation involving either a failure to make a required report or 
notification to the DOE or an untimely report or notification, will be 
based upon the circumstances surrounding the matter that should have 
been reported. A contractor will not normally be cited for a failure to 
report a condition or event unless the contractor was aware or should 
have been aware of the condition or event that it failed to report.

                     4. Identification and Reporting

    Reduction of up to 50% of the base civil penalty shown in Table A-1 
may be given when a DOE contractor identifies the violation and promptly 
reports the violation to the DOE. Consideration will be given to, among 
other things, the opportunity available to discover the violation, the 
ease of discovery and the promptness and completeness of any required 
report. No consideration will be given to a reduction in penalty if the 
DOE contractor does not take prompt action to report the problem to DOE 
upon discovery, or if the immediate actions necessary to restore 
compliance with the worker safety and health requirements are not taken.

               5. Self-Identification and Tracking Systems

    (a) DOE strongly encourages contractors to self-identify 
noncompliances with the worker safety and health requirements before the 
noncompliances lead to a string of similar and potentially more 
significant events or consequences. When a contractor identifies a 
noncompliance, DOE will normally allow a reduction in the amount of 
civil penalties, unless prior opportunities existed for contractors to 
identify the noncompliance. DOE will normally not allow a reduction in 
civil penalties for self-identification if significant DOE intervention 
was required to induce the contractor to report a noncompliance.
    (b) Self-identification of a noncompliance is possibly the single 
most important factor in considering a reduction in the civil penalty 
amount. Consideration of self-identification is linked to, among other 
things, whether prior opportunities existed to discover the violation, 
and if so, the age and number of such opportunities; the extent to which 
proper contractor controls should have identified or prevented the 
violation; whether discovery of the violation resulted from a 
contractor's self-monitoring activity; the extent of DOE involvement in 
discovering the violation or in prompting the contractor to identify the 
violation; and the promptness and completeness of any required report. 
Self-identification is also considered by DOE in deciding whether to 
pursue an investigation.
    (c) DOE will use the voluntary Noncompliance Tracking System (NTS) 
which allows contractors to elect to report noncompliances. In the 
guidance document supporting the NTS, DOE will establish reporting 
thresholds for reporting noncompliances of potentially greater worker 
safety and health significance into the NTS. Contractors are expected, 
however, to use their own self-tracking systems to track noncompliances 
below the reporting threshold. This self-tracking is considered to be 
acceptable self-reporting as long as DOE has access to the contractor's 
system and the contractor's system notes the item as a noncompliance 
with a DOE safety and health requirement. For noncompliances that are 
below the NTS reportability thresholds, DOE will credit contractor self-
tracking as representing self-reporting. If an item is not reported in 
NTS but only tracked in the contractor's system and DOE subsequently 
determines that the noncompliance was significantly mischaracterized, 
DOE will not credit the internal tracking as representing appropriate 
self-reporting.

                        6. Self-Disclosing Events

    (a) DOE expects contractors to demonstrate acceptance of 
responsibility for worker safety and health by proactively identifying 
noncompliances. When the occurrence of an event discloses noncompliances 
that the contractor could have or should have identified before the 
event, DOE will not generally reduce civil penalties for self-
identification, even if the underlying noncompliances were reported to 
DOE. In deciding whether to reduce any civil penalty proposed for 
violations revealed by the occurrence of a self-disclosing event, DOE 
will

[[Page 628]]

consider the ease with which a contractor could have discovered the 
noncompliance and the prior opportunities that existed to discover the 
noncompliance. If a contractor simply reacts to events that disclose 
potentially significant consequences or downplays noncompliances which 
did not result in significant consequences to worker safety and health, 
such contractor actions do not constitute the type of proactive behavior 
necessary to prevent significant events from occurring and thereby to 
improve worker safety and health.
    (b) The key test is whether the contractor reasonably could have 
detected any of the underlying noncompliances that contributed to the 
event. Examples of events that provide opportunities to identify 
noncompliances include, but are not limited to:
    (1) Prior notifications of potential problems such as those from DOE 
operational experience publications or vendor equipment deficiency 
reports;
    (2) Normal surveillance, quality assurance performance assessments, 
and post-maintenance testing;
    (3) Readily observable parameter trends; and
    (4) Contractor employee or DOE observations of potential worker 
safety and health problems.
    (c) Failure to utilize these types of events and activities to 
address noncompliances may result in higher civil penalty assessments or 
a DOE decision not to reduce civil penalty amounts.
    (d) Alternatively, if, following a self-disclosing event, DOE finds 
that the contractor's processes and procedures were adequate and the 
contractor's personnel generally behaved in a manner consistent with the 
contractor's processes and procedures, DOE could conclude that the 
contractor could not have been reasonably expected to find the single 
noncompliance that led to the event and thus, might allow a reduction in 
civil penalties.

               7. Corrective Action To Prevent Recurrence

    The promptness (or lack thereof) and extent to which the DOE 
contractor takes corrective action, including actions to identify root 
cause and prevent recurrence, may result in an increase or decrease in 
the base civil penalty shown in Table A-1. For example, appropriate 
corrective action may result in DOE's reducing the proposed civil 
penalty up to 50% from the base value shown in Table A-1. On the other 
hand, the civil penalty may be increased if initiation of corrective 
action is not prompt or if the corrective action is only minimally 
acceptable. In weighing this factor, consideration will be given to, 
among other things, the appropriateness, timeliness and degree of 
initiative associated with the corrective action. The comprehensiveness 
of the corrective action will also be considered, taking into account 
factors such as whether the action is focused narrowly to the specific 
violation or broadly to the general area of concern.

                  8. DOE's Contribution to a Violation

    There may be circumstances in which a violation of a DOE worker 
safety and health requirement results, in part or entirely, from a 
direction given by DOE personnel to a DOE contractor to either take or 
forbear from taking an action at a DOE facility. In such cases, DOE may 
refrain from issuing an NOV, or may mitigate, either partially or 
entirely, any proposed civil penalty, provided that the direction upon 
which the DOE contractor relied is documented in writing, 
contemporaneously with the direction. It should be emphasized, however, 
that pursuant to 10 CFR 851.7, interpretative ruling of a requirement of 
this part must be issued in accordance with the provisions of 851.7 to 
be binding. Further, as discussed above in this policy statement, lack 
of funding by itself will not be considered as a mitigating factor in 
enforcement actions.

                        9. Exercise of Discretion

    Because DOE wants to encourage and support DOE contractor initiative 
for prompt self-identification, reporting and correction of 
noncompliances, DOE may exercise discretion as follows:
    (a) In accordance with the previous discussion, DOE may refrain from 
issuing a civil penalty for a violation that meets all of the following 
criteria:
    (1) The violation is promptly identified and reported to DOE before 
DOE learns of it or the violation is identified by a DOE independent 
assessment, inspection or other formal program effort.
    (2) The violation is not willful or is not a violation that could 
reasonably be expected to have been prevented by the DOE contractor's 
corrective action for a previous violation.
    (3) The DOE contractor, upon discovery of the violation, has taken 
or begun to take prompt and appropriate action to correct the violation.
    (4) The DOE contractor has taken, or has agreed to take, remedial 
action satisfactory to DOE to preclude recurrence of the violation and 
the underlying conditions that caused it.
    (b) DOE will not issue a Notice of Violation for cases in which the 
violation discovered by the DOE contractor cannot reasonably be linked 
to the conduct of that contractor in the design, construction or 
operation of the DOE facility involved, provided that prompt and 
appropriate action is taken by the DOE contractor upon identification of 
the past violation to report to DOE and remedy the problem.

[[Page 629]]

    (c) In situations where corrective actions have been completed 
before termination of an inspection or assessment, a formal response 
from the contractor is not required and the inspection report serves to 
document the violation and the corrective action. However, in all 
instances, the contractor is required to report the noncompliance 
through established reporting mechanisms so the noncompliance and any 
corrective actions can be properly tracked and monitored.
    (d) If DOE initiates an enforcement action for a violation, and as 
part of the corrective action for that violation, the DOE contractor 
identifies other examples of the violation with the same root cause, DOE 
may refrain from initiating an additional enforcement action. In 
determining whether to exercise this discretion, DOE will consider 
whether the DOE contractor acted reasonably and in a timely manner 
appropriate to the severity of the initial violation, the 
comprehensiveness of the corrective action, whether the matter was 
reported, and whether the additional violation(s) substantially change 
the significance or character of the concern arising out of the initial 
violation.
    (e) The preceding paragraphs are examples indicating when 
enforcement discretion may be exercised to forego the issuance of a 
civil penalty or, in some cases, the initiation of any enforcement 
action at all. However, notwithstanding these examples, a civil penalty 
may be proposed or Notice of Violation issued when, in DOE's judgment, 
such action is warranted.

                X. Inaccurate and Incomplete Information

    (a) A violation of the worker safety and health requirements to 
provide complete and accurate information to DOE, 10 CFR 851.40, can 
result in the full range of enforcement sanctions, depending upon the 
circumstances of the particular case and consideration of the factors 
discussed in this section. Violations involving inaccurate or incomplete 
information or the failure to provide significant information identified 
by a DOE contractor normally will be categorized based on the guidance 
in section IX, ``Enforcement Actions.''
    (b) DOE recognizes that oral information may in some situations be 
inherently less reliable than written submittals because of the absence 
of an opportunity for reflection and management review. However, DOE 
must be able to rely on oral communications from officials of DOE 
contractors concerning significant information. In determining whether 
to take enforcement action for an oral statement, consideration will be 
given to such factors as:
    (1) The degree of knowledge that the communicator should have had 
regarding the matter in view of his or her position, training, and 
experience;
    (2) The opportunity and time available prior to the communication to 
assure the accuracy or completeness of the information;
    (3) The degree of intent or negligence, if any, involved;
    (4) The formality of the communication;
    (5) The reasonableness of DOE reliance on the information;
    (6) The importance of the information that was wrong or not 
provided; and
    (7) The reasonableness of the explanation for not providing complete 
and accurate information.
    (c) Absent gross negligence or willfulness, an incomplete or 
inaccurate oral statement normally will not be subject to enforcement 
action unless it involves significant information provided by an 
official of a DOE contractor. However, enforcement action may be taken 
for an unintentionally incomplete or inaccurate oral statement provided 
to DOE by an official of a DOE contractor or others on behalf of the DOE 
contractor, if a record was made of the oral information and provided to 
the DOE contractor thereby permitting an opportunity to correct the oral 
information, such as if a transcript of the communication or meeting 
summary containing the error was made available to the DOE contractor 
and was not subsequently corrected in a timely manner.
    (d) When a DOE contractor has corrected inaccurate or incomplete 
information, the decision to issue a citation for the initial inaccurate 
or incomplete information normally will be dependent on the 
circumstances, including the ease of detection of the error, the 
timeliness of the correction, whether DOE or the DOE contractor 
identified the problem with the communication, and whether DOE relied on 
the information prior to the correction. Generally, if the matter was 
promptly identified and corrected by the DOE contractor prior to 
reliance by DOE, or before DOE raised a question about the information, 
no enforcement action will be taken for the initial inaccurate or 
incomplete information. On the other hand, if the misinformation is 
identified after DOE relies on it, or after some question is raised 
regarding the accuracy of the information, then some enforcement action 
normally will be taken even if it is in fact corrected.
    (e) If the initial submission was accurate when made but later turns 
out to be erroneous because of newly discovered information or advances 
in technology, a citation normally would not be appropriate if, when the 
new information became available, the initial submission was promptly 
corrected.

[[Page 630]]

    (f) The failure to correct inaccurate or incomplete information that 
the DOE contractor does not identify as significant normally will not 
constitute a separate violation. However, the circumstances surrounding 
the failure to correct may be considered relevant to the determination 
of enforcement action for the initial inaccurate or incomplete 
statement. For example, an unintentionally inaccurate or incomplete 
submission may be treated as a more severe matter if a DOE contractor 
later determines that the initial submission was in error and does not 
promptly correct it or if there were clear opportunities to identify the 
error.

[71 FR 6931, Feb. 9, 2006, as amended at 74 FR 66033, Dec. 14, 2009]



PART 860_TRESPASSING ON DEPARTMENT OF ENERGY PROPERTY--Table of Contents



Sec.
860.1 Purpose.
860.2 Scope.
860.3 Trespass.
860.4 Unauthorized introduction of weapons or dangerous materials.
860.5 Violations and penalties.
860.6 Posting.
860.7 Effective date of prohibition on designated locations.
860.8 Applicability of other laws.

    Authority: Sec. 161, 68 Stat. 948, sec. 229, 70 Stat. 1070; (42 
U.S.C. 2201; 2278a); sec. 104, 88 Stat. 1237, sec. 105, 88 Stat. 1238 
(42 U.S.C. 5814, 5815); sec. 5, Pub. L. 100-185, 101 Stat. 1279 (18 
U.S.C. 3559); sec. 6, Pub. L. 100-185, 101 Stat. 1280 (18 U.S.C. 3571); 
sec. 7041, Pub. L. 100-690, 102 Stat. 4899 (18 U.S.C. 3559).

    Source: 58 FR 47985, Sept. 14, 1993, unless otherwise noted.



Sec. 860.1  Purpose.

    The regulations in this part are issued for the protection and 
security of facilities, installations and real property subject to the 
jurisdiction or administration, or in the custody of, the Department of 
Energy.



Sec. 860.2  Scope.

    The regulations in this part apply to all facilities, installations 
and real property subject to the jurisdiction or administration of the 
Department of Energy or in its custody which have been posted with a 
notice of the prohibitions and penalties set forth in this part.



Sec. 860.3  Trespass.

    Unauthorized entry upon any facility, installation or real property 
subject to this part is prohibited.



Sec. 860.4  Unauthorized introduction of weapons or dangerous materials.

    Unauthorized carrying, transporting, or otherwise introducing or 
causing to be introduced any dangerous weapon, explosive, or other 
dangerous instrument or material likely to produce substantial injury or 
damage to persons or property, into or upon any facility, installation 
or real property subject to this part, is prohibited.



Sec. 860.5  Violations and penalties.

    (a) Whoever willfully violates either Sec. 860.3 or Sec. 860.4 
shall, upon conviction, be guilty of an infraction punishable by a fine 
of not more than $5,000.
    (b) Whoever willfully violates either Sec. 860.3 or Sec. 860.4 
with respect to any facility, installation or real property enclosed by 
a fence, wall, floor, roof, or other structural barrier shall upon 
conviction, be guilty of a Class A misdemeanor punishable by a fine not 
to exceed $100,000 or imprisonment for not more than one year, or both.



Sec. 860.6  Posting.

    Notices stating the pertinent prohibitions of Sec. Sec. 860.3 and 
860.4 and penalties of Sec. 860.5 will be conspicuously posted at all 
entrances of each designated facility, installation or parcel of real 
property and at such intervals along the perimeter as will provide 
reasonable assurance of notice to persons about to enter.



Sec. 860.7  Effective date of prohibition on designated locations.

    The prohibitions in Sec. Sec. 860.3 and 860.4 shall take effect as 
to any facility, installation or real property on publication in the 
Federal Register of the notice designating the facility, installation or 
real property and posting in accordance with Sec. 860.6.



Sec. 860.8  Applicability of other laws.

    Nothing in this part shall be construed to affect the applicability 
of the provisions of State or other Federal laws.

[[Page 631]]



PART 861_CONTROL OF TRAFFIC AT NEVADA TEST SITE--Table of Contents



Sec.
861.1 Purpose.
861.2 Scope.
861.3 Definitions.
861.4 Use of site streets.
861.5 Penalties.
861.6 Posting and distribution.
861.7 Applicability of other laws.

Appendix A to Part 861--Perimeter Description of DOE's Nevada Test Site

    Authority: 42 U.S.C. 2201.

    Source: 41 FR 56788, Dec. 30, 1976, unless otherwise noted.



Sec. 861.1  Purpose.

    The regulations in this part are designed to facilitate the control 
of traffic at the Nevada Test Site.



Sec. 861.2  Scope.

    This part applies to all persons who use the streets of the Nevada 
Test Site.



Sec. 861.3  Definitions.

    As used in this part:
    (a) DOE means the Department of Energy.
    (b) Nevada Test Site means DOE's Nevada Test Site located in Nye 
County, Nev. A perimeter description is attached as Appendix A to this 
part.
    (c) Nevada Test Site Traffic Regulations means the traffic 
directives promulgated by the Manager of the Nevada Site Office pursuant 
to Sec. 861.4.
    (d) Person means every natural person, firm, trust partnership, 
association or corporation.
    (e) Street means the entire width between the boundary lines of 
every way when any part thereof is open to the use of those admitted to 
the Nevada Test Site for purposes of vehicular travel.
    (f) Traffic means pedestrians, ridden or herded animals, vehicles, 
and other conveyances, either singly or together, while using any 
roadway for purposes of travel.
    (g) Vehicle means every device in, upon or by which any person or 
property is or may be transported or drawn upon a roadway, excepting 
devices moved by human power or used exclusively upon stationary rails 
or tracks.

[41 FR 56788, Dec. 30, 1976, as amended at 71 FR 68734, Nov. 28, 2006]



Sec. 861.4  Use of site streets.

    All persons using the streets of the Nevada Test Site shall do so in 
a careful and safe manner.
    (a) The Nevada Test Site Traffic Regulations supplement this section 
by identifying the specific traffic requirements relating to such 
matters as:
    (1) Enforcement and obedience to Traffic Regulations, including the 
authority of police officers and traffic regulations, and responsibility 
to report accidents.
    (2) Traffic signs, signals, and markings, including required 
compliance with traffic lanes and traffic control devices, and 
prohibitions on display of unauthorized traffic signs, signals, or 
marking or interference with authorized traffic control devices.
    (3) Speeding or driving under the influence of intoxicating liquor 
or drugs, including prohibitions on reckless driving, and promulgation 
of maximum permissible speeds.
    (4) Turning movements, including required position and method of 
turning at intersections, limitations on turning around, and obedience 
to turning markers and no-turn signs.
    (5) Stopping and yielding, including obedience to stop and yield 
signs, requirements, when entering stop or yield intersections, emerging 
from alleys, driveways, or buildings, operation of vehicles on approach 
of authorized emergency vehicles and stops when traffic is obstructed.
    (6) Pedestrians' rights and duties, including pedestrian's right-of-
way in crosswalks, when a pedestrian must yield, required use or right 
half of crosswalks and requirements concerning walking along roadways 
and prohibited pedestrian crossings.
    (7) Parking, stopping, and standing, specifying when parking, 
stopping, and standing are prohibited, including special provisions 
applicable to buses, requirements that parking not obstruct traffic and 
be close to curb, and concerning lamps on parked vehicles.

[[Page 632]]

    (8) Privileges of drivers of authorized emergency vehicles, 
including exemptions from parking and standing, stopping, speeding and 
turning limitations,

under specified circumstances and within specified limitations.
    (9) Miscellaneous driving rules, including requirements for convoys, 
and limitations on backing, opening and closing vehicle doors, following 
fire apparatus, crossing a fire hose, driving through a safety zone, 
through convoys, on sidewalks or shoulders of roadways, boarding or 
alighting from vehicles, passing a bus on the right, and unlawful 
riding.
    (b) The Nevada Test Site Traffic Regulations, when posted and 
distributed as specified in Sec. 861.6, shall have the same force and 
effect as if made a part hereof.



Sec. 861.5  Penalties.

    Any person doing any act forbidden or failing to do any act required 
by the Nevada Test Site Traffic Regulations shall, upon conviction, be 
punishable by a fine of not more than $50 or imprisonment for not more 
than 30 days, or both.



Sec. 861.6  Posting and distribution.

    Notices including the provisions of the Nevada Test Site Traffic 
Regulations will be conspicuously posted at the Nevada Test Site. Such 
other distribution of the Nevada Test Site Regulations will be made by 
the Manager as will provide reasonable assurance of notice to persons 
subject to the regulations.



Sec. 861.7  Applicability of other laws.

    Nothing in this part shall be construed to affect the applicability 
of the provisions of State laws or of other Federal laws.



Sec. Appendix A to Part 861--Perimeter Description of DOE's Nevada Test 
                                  Site

    The Nevada Test Site, containing approximately 858,764 acres located 
in Nye County, Nev., is described as follows:
Beginning at the northwesterly corner of the tract of land hereinafter 
described, said corner being at latitude 37[deg]20[min]45[sec], 
longitude 116[deg]34[min]20[sec];
Thence easterly approximately 6.73 miles, to a point at latitude 
37[deg]20[min]45[sec] longitude 116[deg]27[min]00[sec];
Thence northeasterly approximately 4.94 miles to a point at latitude 
37[deg]23[min]07[sec], longitude 116[deg]22[min]30[sec];
Thence easterly approximately 4.81 miles to a point at latitude 
37[deg]23[min]07[sec], longitude 116[deg]17[min]15[sec];
Thence southeasterly approximately 6.77 miles to a point at latitude 
37[deg]19[min]47[sec], longitude 116[deg]11[min]10[sec];
Thence southerly approximately 5.27 miles to a point at latitude 
37[deg]15[min]12.043[sec], longitude 116[deg]11[min]10[sec];
Thence easterly approximately 14.21 miles to a point at latitude 
37[deg]15[min]07.268[sec], longitude 115[deg]55[min]42.268[sec];
Thence southerly approximately 39.52 miles to a point at latitude 
36[deg]40[min]43.752[sec], longitude 115[deg]55[min]37.687[sec];
Thence westerly approximately 2.87 miles to a point at latitude 
36[deg]40[min]40.227[sec], longitude 115[deg]58[min]43.956[sec];
Thence southerly approximately 5.23 miles to a point at latitude 
36[deg]36[min]07.317[sec], longitude 115[deg]58[min]41.227[sec];
Thence southwesterly along a perimeter distance approximately 5.82 miles 
to a point at latitude 36[deg]34[min]39.754[sec], longitude 
116[deg]04[min]11.167[sec];
Thence northerly approximately 3.20 miles to a point at latitude 
36[deg]37[min]26.804[sec], longitude 116[deg]04[min]11.355[sec];
Thence northwesterly approximately 5.16 miles to a point at latitude 
36[deg]40[min]28.854[sec], longitude 116[deg]08[min]17.749[sec];
Thence westerly approximately 8.63 miles to a point at latitude 
36[deg]40[min]23.246[sec], longitude 116[deg]17[min]37.466[sec];
Thence southerly approximately 0.19 mile to a point at latitude 
36[deg]40[min]13.330[sec], longitude 116[deg]17[min]37.461[sec];
Thence westerly approximately 8.49 miles to a point at latitude 
36[deg]40[min]13.666[sec], longitude 116[deg]26[min]47.915[sec];
Thence northerly approximately 32.87 miles to a point at latitude 
37[deg]08[min]50[sec], longitude 116[deg]26[min]44.125[sec];
Thence northwesterly approximately 15.37 miles to a point at latitude 
37[deg]20[min]45[sec], longitude 116[deg]34[min]20[sec], the point of 
beginning herein.

[41 FR 56788, Dec. 30. 1978, as amended at 44 FR 37939, June 29, 1979]



PART 862_RESTRICTIONS ON AIRCRAFT LANDING AND AIR DELIVERY AT DEPARTMENT OF ENERGY NUCLEAR SITES--Table of Contents



Sec.
862.1 Purpose.
862.2 Scope.
862.3 Definitions.

[[Page 633]]

862.4 Prohibitions and penalties.
862.5 Procedures for removal of downed aircraft.
862.6 Voluntary minimum altitude.
862.7 Designation of sites.

    Authority: 42 U.S.C. 2201(b), 2201(i) and 2278(a).

    Source: 52 FR 29838, Aug. 12, 1987, unless otherwise noted.



Sec. 862.1  Purpose.

    The purpose of this part is to set forth Department of Energy, 
hereinafter ``DOE'', security policy regarding aircraft and air delivery 
on nuclear sites under the jurisdiction of DOE pursuant to the Atomic 
Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.).



Sec. 862.2  Scope.

    (a) This part applies to all persons or aircraft entering or 
otherwise within or above areas within the boundaries of lands or waters 
subject to the jursidiction, administration, or in the custody of the 
DOE at sites designated by DOE.
    (b) This part is not applicable to:
    (1) Aircraft operating pursuant to official business of the Federal 
Government;
    (2) Aircraft over-flying or in the process of landing pursuant to 
official business of a state or local law enforcement authority with 
prior notification to DOE; or
    (3) Aircraft in the process of landing on a DOE site due to 
circumstances beyond the control of the operator and with prior 
notification to DOE, if possible.
    (c) Aircraft in paragraphs (b)(2) and (b)(3) of this section are 
within the scope of this part upon landing at a DOE designated site.



Sec. 862.3  Definitions.

    (a) Air delivery. Delivering or retrieving a person or object by 
airborne means, including but not limited to, aircraft.
    (b) Aircraft. A manned a unmanned device or any portion thereof, 
that is commonly used or intended to be used for flight in the air, 
including powerless flight. Such devices include but are not limited to 
any parachute, hovercraft, helicopter, glider, airplane or lighter than 
air vehicle.
    (c) Boundary. A delineation on a map of Federal interest in land or 
water utilized by DOE pursuant to the Atomic Energy Act of 1954, as 
amended:
    (1) Authorized by Congress, or
    (2) Published pursuant to law in the Federal Register, or
    (3) Filed or recorded with a State or political subdivision in 
accordance with applicable law.
    (d) Designated site. An area of land or water identified in 
accordance with Sec. 862.7 of this part.
    (e) Downed aircraft. An aircraft that is on a designated site due to 
emergency landing or for any other reason.
    (f) Manager of Operations. The manager of a DOE field office, the 
Manager of the Pittsburgh Naval Reactors Office, the Manager of the 
Schnectady Naval Reactors Office and, for designated sites administered 
directly by DOE Headquarters, the Chief Health, Safety and Security 
Officer.

[52 FR 29838, Aug. 12, 1987, as amended at 71 FR 68734, Nov. 28, 2006]



Sec. 862.4  Prohibitions and penalties.

    (a) The following activities are prohibited by his part:
    (1) Operation or use of aircraft on lands or waters of designated 
sites.
    (2) Air delivery to or from designated sites.
    (3) Removal or movement of downed aircraft, or participation in the 
removal or movement of downed aircraft, from or on a designated site 
unless prior authorization is obtained pursuant to Sec. 862.5 of this 
part.
    (4) Failure to remove a downed aircraft from a designated site in 
accordance with an order issued by the cognizant DOE Manager of 
Operations under Sec. 862.5 of this part.
    (5) Violation of Federal Aviation Administration regulations 
regarding minimum altitudes and prohibited flight maneuvers over a 
designated site.
    (b) A person willfully engaging in activities prohibited by this 
part may be subject to the imposition of criminal penalties set forth in 
sections 223 and 229 of the Atomic Energy Act, as amended (42 U.S.C. 
2273 and 2278(a)).

[[Page 634]]



Sec. 862.5  Procedures for removal of downed aircraft.

    (a) An aircraft on or brought on to a designated site, except as 
provided in Sec. 862.2 (b)(1), shall not be moved within or removed 
from such areas except as provided for in this section. All such 
aircraft are subject to full inspection by DOE security personnel upon 
landing upon order of the Manager of Operations or his designee. Any 
attempt to depart or remove the aircraft from a designated site without 
clearance obtained pursuant to this section, may be assumed to be 
indicative of hostile intent by security forces at such sites.
    (b)(1) The cognizant DOE Manager of Operations for a designated site 
may, on his own initiative, issue a written order to the owner or 
operator of a downed aircraft to require the removal of that aircraft 
from the site within 20 days of this notice. Such an order shall 
specify:
    (i) The date upon which removal operations must be completed;
    (ii) The times and means of access to and from the downed aircraft 
to be removed;
    (iii) The manner of removal; and
    (iv) An estimate of the cost of removal to DOE for which the owner 
or operator will be held liable if removal is accomplished by DOE.
    (2) The owner or operator of the downed aircraft may file a written 
petition, supported by affidavits, to the cognizant Manager of 
Operations requesting that the order be modified or set aside. The 
petition may be granted by the Manager of Operations for good cause 
shown, upon a finding that it is clearly consistent with the national 
security, public safety, and federal property interests. Such petition 
must be filed at least 10 days prior to the date upon which removal is 
to be initiated, as specified in the order. The written decision of the 
Manager of Operations shall be a final agency action.
    (c)(1) The owner of a downed aircraft may petition the cognizant 
Manager of Operations of permission to move or remove the downed 
aircraft from or within a designated site. The petition must provide 
assurances that the owner will fully compensate DOE for all costs 
incurred or damages experienced as a result of landing or removal 
through a contact for services. The Manager of Operations may, for good 
cause shown, waive part or all of the compensation which might otherwise 
be due DOE.
    (2) The Manager of Operations may deny such petition in whole or 
part and prohibit removal of a downed aircraft upon finding that:
    (i) The removal of a downed aircraft would create an unacceptable 
safety or security risk;
    (ii) The removal of a downed aircraft would result in excessive 
resource loss of property damage or an unacceptable disruption of 
federal activities;
    (iii) The removal of downed aircraft is impracticable or impossible;
    (iv) The owner has failed to provide adequate assurances that all 
costs incurred or damages experienced by DOE due to landing or removal 
of aircraft will be fully paid immediately upon removal by the owner 
under a contract for services;
    (v) An inspection of the aircraft has not been conducted by DOE 
security personnel.
    (3) In the event that such petition is granted in whole or part, the 
cognizant Manager of Operations may issue an order, as set forth in 
(b)(1) (i) through (iv) of this section. In the event that a petition is 
denied in whole or part, the Manager of Operations shall issue a written 
decision which shall set forth the reasons for such denial.
    (d) Failure to comply with an order issued by the Manager of 
Operations pursuant to this section is basis for DOE to consider the 
downed aircraft to be abandoned property. DOE may take whatever measures 
it deems necessary when it determines that downed aircraft is abandoned 
property.
    (e) Notwithstanding paragraphs (b) and (c) of this section, the 
Manager of Operations may move or remove a downed aircraft from such an 
area upon oral or written notification to the owner or operator of such 
aircraft upon a finding that national security or operational 
requirements necessitate expedited movement or removal. The owner or 
operator may be held jointly and separately liable for all expenses 
incurred by DOE in the movement or removal of such aircraft. Such 
expenses shall be deemed to be incurred through an implied contract at 
law for services.

[[Page 635]]



Sec. 862.6  Voluntary minimum altitude.

    In addition to complying with all applicable FAA prohibitions or 
restrictions, aircraft are requested to maintain a minimum altitude of 
2,000 feet above the terrain of a designated site. Applicable FAA 
prohibitions or restrictions take precedence over this voluntary minimum 
altitude.



Sec. 862.7  Designation of sites.

    (a) DOE shall designate sites covered by this part as deemed 
necessary, consistent with the national security and public safety, 
through notice in the Federal Register.
    (b) This part shall be effective as to any facility, installation, 
or real property on publication in the Federal Register of the notice 
designating the site.
    (c) Upon designation of a site, the cognizant Manager of Operations 
may inform the public of such designation through press release or 
posting of notice at airfields in the vicinity of the designated site.



PART 871_AIR TRANSPORTATION OF PLUTONIUM--Table of Contents



Sec.
871.1 National security exemption.
871.2 Public health and safety exemption.
871.3 Records.
871.4 Limitation on redelegation of authority.

    Authority: Pub. L. 94-187, 88 Stat. 1077, 1078 (42 U.S.C. 2391 et 
seq.); Energy Reorganization Act, Pub. L. 93-438, 88 Stat. 1233 (42 
U.S.C. 5801 et seq.); secs. 2, 3, 91, 123, and 161 of the Atomic Energy 
Act of 1954, as amended.

    Source: 42 FR 48332, Sept. 23, 1977, unless otherwise noted.



Sec. 871.1  National security exemption.

    (a) The following DOE air shipments of plutonium are considered as 
being made for the purposes of national security within the meaning of 
section 502(2) of Public Law 94-187:
    (1) Shipments made in support of the development, production, 
testing, sampling, maintenance, repair, modification, or retirement of 
atomic weapons or devices;
    (2) Shipments made pursuant to international agreements for 
cooperation for mutual defense purposes; and
    (3) Shipments necessary to respond to an emergency situation 
involving a possible threat to the national security.
    (b) The Deputy Administrator for Defense Programs may authorize air 
shipments falling within paragraph (a)(1) of this section, on a case-by-
case basis: Provided, That the Deputy Administrator for Defense Programs 
determines that such shipment is required to be made by aircraft either 
because:
    (1) The delay resulting from using ground transportation methods 
would have serious adverse impact upon a national security requirement;
    (2) Safeguards or safety considerations dictate the use of air 
transportation;
    (3) The nature of the item to be shipped necessitates the use of air 
transportation in order to avoid possible damage which may be expected 
from other available transportation environments; or
    (4) The nature of the item being shipped necessitates rapid shipment 
by air in order to preserve the chemical, physical, or isotopic 
properties of the item.

The Deputy Administrator for Defense Programs may also authorize air 
shipments falling within paragraph (a)(2) of this section in all cases 
since the inherent time delays of surface transportation for such 
shipments are considered unacceptable. The Deputy Administrator for 
Defense Programs may also authorize air shipments falling within 
paragraph (a)(3) of this section in cases where failure to make 
shipments by air could jeopardize the national security of the United 
States.

[42 FR 48332, Sept. 23, 1977, as amended at 71 FR 68734, Nov. 28, 2006]



Sec. 871.2  Public health and safety exemption.

    The Deputy Administrator for Defense Programs may authorize, on a 
case-by-case basis, DOE air shipments of plutonium where the Deputy 
Administrator determines that rapid shipment by air is required to 
respond to

[[Page 636]]

an emergency situation involving possible loss of life, serious personal 
injuries, considerable property damage, or other significant threat to 
the public health and safety.

[42 FR 48332, Sept. 23, 1977, as amended at 71 FR 68734, Nov. 28, 2006]



Sec. 871.3  Records.

    Determinations made by the Deputy Administrator for Defense Programs 
pursuant to these rules shall be matters of record. Such authorizations 
shall be reported to the Administrator of the National Nuclear Security 
Administration within twenty-four hours after authorization is granted.

[42 FR 48332, Sept. 23, 1977, as amended at 71 FR 68734, Nov. 28, 2006]



Sec. 871.4  Limitation on redelegation of authority.

    The authority delegated in this part may not be redelegated without 
the prior approval of the Administrator of the National Nuclear Security 
Administration.

[42 FR 48332, Sept. 23, 1977, as amended at 71 FR 68734, Nov. 28, 2006]



PART 900_COORDINATION OF FEDERAL AUTHORIZATIONS FOR ELECTRIC TRANSMISSION FACILITIES--Table of Contents



Sec.
900.1 Purpose.
900.2 Applicability.
900.3 Definitions.
900.4 Pre-application mechanism.
900.5 Request for coordination.
900.6 Coordination of permitting and related environmental reviews.

    Authority: 16 U.S.C. 824p(h).

    Source: 73 FR 54459, Sept. 19, 2008, unless otherwise noted.



Sec. 900.1  Purpose.

    This part provides a process for the timely coordination of Federal 
authorizations for proposed transmission facilities pursuant to section 
216(h) of the Federal Power Act (FPA). The regulations provide for the 
compilation of a single environmental review document in order to 
coordinate all permitting and environmental reviews required to be 
issued under Federal law. They also provide an opportunity for non-
Federal entities to coordinate their own separate non-Federal permitting 
and environmental reviews with that of the permitting entities.



Sec. 900.2  Applicability.

    (a) DOE accepts requests for coordination of Federal authorizations 
under this part only for facilities that are used for the transmission 
of electric energy in interstate commerce for the sale of electric 
energy at wholesale.
    (b) DOE does not accept requests for coordination under this part of 
Federal authorizations for electric transmission facilities located 
within the Electric Reliability Council of Texas interconnection.
    (c) DOE does not accept requests for coordination under this part 
from persons that have submitted an application to the Federal Energy 
Regulatory Commission (FERC) for issuance of a permit for construction 
or modification of a transmission facility under 18 CFR 50.6 or have 
initiated pre-filing procedures under 18 CFR 50.5.
    (d) DOE, in exercising its responsibilities under this part, will 
consult regularly with FERC, electric reliability organizations, and 
transmission organizations approved by FERC.



Sec. 900.3  Definitions.

    As used in this part:
    Applicant means a person or entity who is seeking a Federal 
authorization.
    Director means the Director of Permitting and Siting in the Office 
of Electricity Delivery and Energy Reliability within DOE.
    DOE means the U.S. Department of Energy.
    Federal authorization means any authorization required under Federal 
law to site a transmission facility, including permits, special use 
authorizations, certifications, opinions, or other approvals. This term 
includes authorizations issued by Federal and non-Federal entities that 
are responsible for issuing authorizations under Federal law for a 
transmission facility.
    FERC means the Federal Energy Regulatory Commission.
    FPA means the Federal Power Act (16 U.S.C. 791-828c).

[[Page 637]]

    Indian tribe has the same meaning as provided in 25 U.S.C. 450b(e).
    NEPA means the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.)
    Non-federal entity means Indian tribes, multistate entities, and 
State agencies.
    Permitting entity means any Federal or non-Federal entity that is 
responsible for issuing Federal authorizations.
    Request for coordination means a request to DOE for coordination of 
Federal authorizations under this part.
    Requester means an applicant that is seeking DOE coordination of 
Federal authorizations under this part.
    Single Environmental Review Document means the total material that 
the permitting entities develop--with the lead agency for preparing the 
NEPA document being primarily responsible--and that DOE shall assemble, 
along with any other material considered necessary and made available by 
DOE, in order to fulfill Federal obligations for preparing NEPA 
compliance documents and all other analyses required to comply with all 
environmental, cultural and historic preservation statutes and 
regulations under Federal law. This information shall be available to 
the applicant, all permitting entities, DOE, and all Indian tribes, 
multistate entities, and State agencies that have their own separate 
non-Federal permitting and environmental reviews.



Sec. 900.4  Pre-Application mechanism.

    (a) An applicant, or prospective applicant, for a Federal 
authorization seeking information from a permitting entity pursuant to 
16 U.S.C. 824p(h)(4)(C) must request information pursuant to the terms 
specified in this section with a permitting entity, and notify the 
Director of the request to the permitting entity.
    (b) Any request for information filed under this section shall 
specify in sufficient detail the information sought from the permitting 
entity and shall contain sufficient information for the permitting 
entity to provide the requested information pursuant to 16 U.S.C. 
824p(h)(4)(C).
    (c) Within 60 days of receipt of such a request for information, a 
permitting entity shall provide, to the extent permissible under 
existing law, information concerning the request to the applicant, or 
prospective applicant, and the Director.



Sec. 900.5  Request for coordination.

    (a) A requester shall file a request for coordination with the 
Director.
    (b) The request shall contain:
    (1) The exact legal name of the requester; its principal place of 
business; whether the requester is an individual, partnership, 
corporation, or other entity; the State laws under which the requester 
is organized or authorized; and the name, title, and mailing address of 
the person or persons to whom communications concerning the request for 
coordination are to be addressed;
    (2) A concise general description of the proposed transmission 
facility sufficient to explain its scope and purpose, including:
    (i) The voltage and type of current (alternating or direct);
    (ii) The length of the transmission line;
    (iii) The design and height of the support structures;
    (iv) The proposed route (including the beginning and ending nodes of 
the transmission project, and a brief geographical description of the 
proposed route);
    (v) A map of the proposed route (if available);
    (vi) Any ancillary facilities associated with the proposed route;
    (vii) The proposed dates for the beginning and completion of 
construction and the commencement of service;
    (viii) Whether the applicant for a Federal authorization of the 
proposed transmission facility has submitted an interconnection request 
with a transmission organization or electric reliability organization 
approved by FERC; and
    (ix) The anticipated length of time the proposed transmission 
facility will be in service;
    (3) A list of all permitting entities from which Federal 
authorizations pertaining to the proposed transmission

[[Page 638]]

facility are needed, including the docket numbers of pending 
applications with permitting entities;
    (4) A list of non-Federal entities that have their own separate non-
Federal permitting and environmental reviews pertaining to the proposed 
transmission facility, including the docket numbers of relevant 
applications;
    (5) A signed statement to the Director that the requester has served 
a copy of the request for coordination to all permitting entities, and 
all non-Federal entities that have their own separate non-Federal 
permitting and environmental reviews; and
    (6) A statement by the requester certifying that it has informed the 
non-Federal entities that have their own separate non-Federal permitting 
and environmental reviews pertaining to the proposed transmission 
facility that they may coordinate their permitting and environmental 
reviews with DOE and the permitting entities pursuant to section 16 
U.S.C. 824p(h)(4)(A). The statement should list the specific persons 
served and other pertinent contact information at all permitting 
entities and all non-Federal entities.
    (c) The written request for coordination may be filed by mail or 
hand delivery with the Director at 1000 Independence Avenue, SW., 
Washington, DC 20585, or electronically in MS Word or PDF formats at 
[email protected]. Electronic filing is DOE's preferred method. If 
filing by hand or mail, DOE requests that an electronic copy be filed as 
well.
    (d) Upon receipt, DOE will post and make publicly available at 
http://www.oe.energy.gov/fed--transmission.htm each request for 
coordination and any subsequent correspondence and material filed with 
DOE in connection with the request, except for information exempt from 
disclosure under the Freedom of Information Act.



Sec. 900.6  Coordination of permitting and related environmental reviews.

    (a)(1) Upon receipt of a request for coordination, DOE, as the 
coordinator of all applicable Federal authorizations and related 
environmental reviews, and the permitting entities shall jointly 
determine the appropriate level of coordination required, and, where 
applicable, the appropriate permitting entity to be the lead agency for 
preparing NEPA compliance documents, including all documents required to 
support a final agency decision, and all other analyses used as the 
basis for all decisions on a proposed transmission facility under 
Federal law. Designation of the lead agency for preparing NEPA documents 
shall be in compliance with regulations issued by the Council on 
Environmental Quality at 40 CFR 1500 et seq.
    (2) Non-Federal entities that have their own separate non-Federal 
permitting and environmental reviews may elect to participate in the 
coordination process under paragraph (a)(2) of this section.
    (b)(1) DOE as the agency coordinating federal authorizations shall 
establish, maintain, and utilize, to the extent practicable and in 
compliance with Federal law, a single location to store and display 
(electronically if practicable) all of the information assembled in 
order to fulfill Federal obligations for preparing NEPA compliance 
documents and all other analyses required to comply with all 
environmental and cultural statutes and regulations under Federal law. 
This information shall be available to the applicant, all permitting 
entities, DOE, and all Indian tribes, multistate entities, and State 
agencies that have their own separate non-Federal permitting and 
environmental reviews.
    (2) DOE shall establish and maintain, to the extent practicable and 
in compliance with Federal law, a single location to store and display 
the information utilized by the permitting entities as the basis for 
their decisions on the proposed project under Federal law, including all 
environmental, cultural protection and natural resource protection 
statutes and regulations.
    (3) In coordinating the preparation of a single environmental review 
document, DOE will rely upon the permitting entities, as appropriate, to 
ensure compliance with all applicable requirements of Federal law.
    (4) The single environmental review document shall be made available 
to all permitting entities for making

[[Page 639]]

their agency decisions in order to ensure that each permitting entity's 
environmental review is in compliance with the statutory mandates and 
regulatory requirements applicable to action by that permitting entity.



PART 903_POWER AND TRANSMISSION RATES--Table of Contents



Subpart A_Procedures for Public Participation in Power and Transmission 
     Rate Adjustments and Extensions for the Alaska, Southeastern, 
          Southwestern, and Western Area Power Administrations

Sec.
903.1 Purpose and scope; application.
903.2 Definitions.
903.11 Advance announcement of rate adjustment.
903.13 Notice of proposed rates.
903.14 Consultation and comment period.
903.15 Public information forums.
903.16 Public comment forums.
903.17 Informal public meetings for minor rate adjustments.
903.18 Revision of proposed rates.
903.21 Completion of rate development; provisional rates.
903.22 Final rate approval.
903.23 Rate extensions.

    Authority: Secs. 301(b), 302(a), and 644 of Department of Energy 
Organization Act, Pub. L. 95-91 (42 U.S.C. 7101 et seq.); sec. 5 of the 
Flood Control Act of 1944 (16 U.S.C. 825s); the Reclamation Act of 1902 
(43 U.S.C. 372 et seq.), as amended and supplemented by subsequent 
enactments, particularly sec. 9(c) of the Reclamation Project Act of 
1939 (43 U.S.C. 485h(c)); and the Acts specifically applicable to 
individual projects or power systems.

    Source: 50 FR 37837, Sept. 18, 1985, unless otherwise noted.



Subpart A_Procedures for Public Participation in Power and Transmission 
     Rate Adjustments and Extensions for the Alaska, Southeastern, 
          Southwestern, and Western Area Power Administrations



Sec. 903.1  Purpose and scope; application.

    (a) Except as otherwise provided herein, these regulations establish 
procedures for the development of power and transmission rates by the 
Administrators of the Alaska, Southeastern, Southwestern, and Western 
Area Power Administrations; for the providing of opportunities for 
interested members of the public to participate in the development of 
such rates; for the confirmation, approval, and placement in effect on 
an interim basis by the Deputy Secretary of the Department of Energy of 
such rates; and for the submission of such rates to the Federal Energy 
Regulatory Commission with or without prior interim approval. These 
regulations supplement Delegation Order No. 0204-108 of the Secretary of 
Energy, which was published in the Federal Register and became effective 
on December 14, 1983 (48 FR 55664), with respect to the activities of 
the Deputy Secretary and the Administrators.
    (b) These procedures shall apply to all power and transmission rate 
adjustment proceedings for the Power Marketing Administrations (PMAs) 
which are commenced after these regulations become effective or were in 
process on the effective date of these regulations, but for which the 
FERC had not issued any substantive orders on or before December 14, 
1983. These procedures supersede ``Procedures for Public Participation 
in Power and Transmission Rate Adjustments and Extensions for the 
Alaska, Southeastern, Southwestern, and Western Area Power 
Administrations'' published in 45 FR 86983 (December 31, 1980) and 
amended at 46 FR 6864 (January 22, 1981) and 46 FR 25427 (May 7, 1981).
    (c) Except to the extent deemed appropriate by the Administrator in 
accordance with applicable law, these procedures do not apply to rates 
for short term sales of capacity, energy, or transmission service.

[50 FR 37837, Sept. 18, 1985; 50 FR 48075, Nov. 21, 1985]



Sec. 903.2  Definitions.

    As used herein--
    (a) Administrator means the Administrator of the PMA whose rate is 
involved in the rate adjustment, or anyone acting in such capacity.
    (b) Department means the Department of Energy, including the PMAs 
but excluding the Federal Energy Regulatory Commission.

[[Page 640]]

    (c) Deputy Secretary means the Deputy Secretary of the Department of 
Energy, or anyone acting in such capacity.
    (d) FERC means the Federal Energy Regulatory Commission.
    (e) Major rate adjustment means a rate adjustment other than a minor 
rate adjustment.
    (f) Minor rate adjustment means a rate adjustment which (1) will 
produce less than 1 percent change in the annual revenues of the power 
system or (2) is for a power system which has either annual sales 
normally less than 100 million kilowatt hours or an installed capacity 
of less than 20,000 kilowatts.
    (g) Notice means the statement which informs customers and the 
general public of Proposed Rates or proposed rate extensions, 
opportunities for consultation and comment, and public forums. The 
Notice shall be by and effective on the date of publication in the 
Federal Register. Whenever a time period is provided, the date of 
publication in the Federal Register shall determine the commencement of 
the time period, unless otherwise provided in the Notice. The Notice 
shall include the name, address, and telephone number of the person to 
contact if participation or further information is sought.
    (h) Power Marketing Administration or PMA means the Alaska Power 
Administration, Southeastern Power Administration, Southwestern Power 
Administration, or Western Area Power Administration.
    (i) Power system means a powerplant or a group of powerplants and 
related facilities, including transmission facilities, or a transmission 
system, that the PMA treats as one unit for the purposes of establishing 
rates and demonstrating repayment.
    (j) Proposed Rate means a rate revision or a rate for a new service 
which is under consideration by the Department on which public comment 
is invited.
    (k) Provisional Rate means a rate which has been confirmed, 
approved, and placed in effect on an interim basis by the Deputy 
Secretary.
    (l) Rate means the monetary charge or the formula for computing such 
a charge for any electric service provided by the PMA, including but not 
limited to charges for capacity (or demand), energy, or transmission 
service; however, it does not include leasing fees, service facility 
charges, or other types of facility use charges. A rate may be set forth 
in a rate schedule or in a contract.
    (m) Rate adjustment means a change in an existing rate or rates, or 
the establishment of a rate or rates for a new service. It does not 
include a change in rate schedule provisions or in contract terms, other 
than changes in the price per unit of service, nor does it include 
changes in the monetary charge pursuant to a formula stated in a rate 
schedule or a contract.
    (n) Rate schedule means a document identified as a ``rate 
schedule,'' ``schedule of rates,'' or ``schedule rate'' which designates 
the rate or rates applicable to a class of service specified therein and 
may contain other terms and conditions relating to the service.
    (o) Short term sales means sales that last for no longer than one 
year.
    (p) Substitute Rate means a rate which has been developed in place 
of the rate that was disapproved by the FERC.

[50 FR 37837, Sept. 18, 1985; 50 FR 48075, Nov. 21, 1985]



Sec. 903.11  Advance announcement of rate adjustment.

    The Administrator may announce that the development of rates for a 
new service or revised rates for an existing service is under 
consideration. The announcement shall contain pertinent information 
relevant to the rate adjustment. The announcement may be through direct 
contact with customers, at public meetings, by press release, by 
newspaper advertisement, and/or by Federal Register publication. Written 
comments relevant to rate policy and design and to the rate adjustment 
process may be submitted by interested parties in response to the 
announcement. Any comments received shall be considered in the 
development of Proposed Rates.



Sec. 903.13  Notice of proposed rates.

    (a) The Administrator shall give Notice that Proposed Rates have 
been prepared and are under consideration. The Notice shall include:
    (1) The Proposed Rates;

[[Page 641]]

    (2) An explanation of the need for and derivation of the Proposed 
Rates;
    (3) The locations at which data, studies, reports, or other 
documents used in developing the Proposed Rates are available for 
inspection and/or copying;
    (4) The dates, times, and locations of any initially scheduled 
public forums; and
    (5) Address to which written comments relative to the Proposed Rates 
and requests to be informed of FERC actions concerning the rates may be 
submitted.
    (b) Upon request, customers of the power system and other interested 
persons will be provided with copies of the principal documents used in 
developing the Proposed Rates.



Sec. 903.14  Consultation and comment period.

    All interested persons will have the opportunity to consult with and 
obtain information from the PMA, to examine backup data, and to make 
suggestions for modification of the Proposed Rates for a period ending 
(a) 90 days in the case of major rate adjustments, or 30 days in the 
case of minor rate adjustments, after the Notice of Proposed Rates is 
published in the Federal Register, except that such periods may be 
shortened for good cause shown; (b) 15 days after any answer which may 
be provided pursuant to Sec. 903.15(b) hereof; (c) 15 days after the 
close of the last public forum; or (d) such other time as the 
Administrator may designate; whichever is later. At anytime during this 
period, interested persons may submit written comments to the PMA 
regarding the Proposed Rates. The Administrator may also provide 
additional time for the submission of written rebuttal comments. All 
written comments shall be available at a designated location for 
inspection, and copies also will be furnished on request for which the 
Administrator may assess a fee. Prior to the action described in Sec. 
903.21, the Administrator may, by appropriate announcement postpone any 
procedural date or make other procedural changes for good cause shown at 
the request of any party or on the Administrator's own motion. The 
Administrator shall maintain, and distribute on request, a list of 
interested persons.



Sec. 903.15  Public information forums.

    (a) One or more public information forums shall be held for major 
rate adjustments, except as otherwise provided in paragraph (c) of this 
section, and may be held for minor adjustments, to explain, and to 
answer questions concerning, the Proposed Rates and the basis of and 
justification for proposing such rates. The number, dates, and locations 
of such forums will be determined by the Administrator in accordance 
with the anticipated or demonstrated interest in the Proposed Rates. 
Notice shall be given in advance of such forums. A public information 
forum may be combined with a public comment forum held in accordance 
with Sec. 903.16.
    (b) The Administrator shall appoint a forum chairperson. Questions 
raised at the forum concerning the Proposed Rates and the studies shall 
be answered by PMA representatives at the forum, at a subsequent forum, 
or in writing at least 15 days before the end of the consultation and 
comment period. However, questions that involve voluminous data 
contained in the PMA records may be answered by providing an opportunity 
for consultation and for a review of the records at the PMA offices. As 
a minimum, the proceedings of the forum held at the principal location 
shall be transcribed. Copies of all documents introduced, and of 
questions and written answers shall be available at a designated 
location for inspection and copies will be furnished by the 
Administrator on request, for which a fee may be assessed. Copies of the 
transcript may be obtained from the transcribing service.
    (c) No public information forum need be held for major rate 
adjustments if, after the Administrator has given Notice of a scheduled 
forum, no person indicates in writing by a prescribed date an intent to 
appear at such public forum.



Sec. 903.16  Public comment forums.

    (a) One or more public comment forums shall be held for major rate 
adjustments, except as otherwise provided in paragraph (c) of this 
section,

[[Page 642]]

and may be held for minor rate adjustments, to provide interested 
persons an opportunity for oral presentation of views, data, and 
arguments regarding the Proposed Rates. The number, dates, and locations 
of such forums will be determined by the Administrator in accordance 
with the anticipated or demonstrated interest in the Proposed Rates. 
Notice shall be given at least 30 days in advance of the first public 
comment forum at each location and shall include the purpose, date, 
time, place, and other information relative to the forum, as well as the 
locations where pertinent documents are available for examination and/or 
copying.
    (b) The Administrator shall designate a forum chairperson. At the 
forum, PMA representatives may question those persons making oral 
statements and comments. The chairperson shall have discretion to 
establish the sequence of, and the time limits for, oral presentations 
and to determine if the comments are relevant and noncumulative. Forum 
proceedings shall be transcribed. Copies of all documents introduced 
shall be available at a designated location for inspection, and copies 
shall be furnished on request for which the Administrator may assess a 
fee. Copies of the transcript may be obtained from the transcribing 
service.
    (c) No public comment forum need be held for major rate adjustments 
if, after the Administrator has given notice of a scheduled forum, no 
person indicates in writing by a prescribed date an intent to appear at 
such public forum.



Sec. 903.17  Informal public meetings for minor rate adjustments.

    In lieu of public information or comment forums in conjunction with 
a minor rate adjustment, informal public meetings may be held if deemed 
appropriate by the Administrator. Such informal meetings will not 
require a Notice or a transcription.



Sec. 903.18  Revision of proposed rates.

    During or after the consultation and comment period and review of 
the oral and written comments on the Proposed Rates, the Administrator 
may revise the Proposed Rates. If the Administrator determines that 
further public comment should be invited, the Administrator shall afford 
interested persons an appropriate period to submit further written 
comments to the PMA regarding the revised Proposed Rates. The 
Administrator may convene one or more additional public information and/
or public comment forums. The Administrator shall give Notice of any 
such additional forums.



Sec. 903.21  Completion of rate development; provisional rates.

    (a) Following completion of the consultation and comment period and 
review of any oral and written comments on the Proposed Rates, the 
Administrator may: (1) Withdraw the proposal; (2) develop rates which in 
the Administrator's and the Deputy Secretary's judgment should be 
confirmed, approved, and placed into effect on an interim basis 
(Provisional Rates); or (3) develop rates which in the Administrator's 
judgment should be confirmed, approved, and placed into effect by the 
FERC on a final basis without being placed into effect on an interim 
basis. A statement shall be prepared and made available to the public 
setting forth the principal factors on which the Deputy Secretary's or 
the Administrator's decision was based. The statement shall include an 
explanation responding to the major comments, criticisms, and 
alternatives offered during the comment period. The Administrator shall 
certify that the rates are consistent with applicable law and that they 
are the lowest possible rates to customers consistent with sound 
business principles. The rates shall be submitted promptly to the FERC 
for confirmation and approval on a final basis.
    (b) The Deputy Secretary shall set the effective date for 
Provisional Rates. The effective date shall be at least 30 days after 
the Deputy Secretary's decision except that the effective date may be 
sooner when appropriate to meet a contract deadline, to avoid financial 
difficulties, to provide a rate for a new service, or to make a minor 
rate adjustment.
    (c) The effective date may be adjusted by the Administrator to 
coincide with the beginning of the next billing period following the 
effective

[[Page 643]]

date set by the Deputy Secretary for the Provisional Rates.
    (d) Provisional Rates shall remain in effect on an interim basis 
until: (1) They are confirmed and approved on a final basis by the FERC; 
(2) they are disapproved and the rates last previously confirmed and 
approved on a final basis become effective; (3) they are disapproved and 
higher Substitute Rates are confirmed and approved on a final basis and 
placed in effect by the FERC; (4) they are disapproved and lower 
Substitute Rates are confirmed and approved on a final basis by the 
FERC; or (5) they are superseded by other Provisional Rates placed in 
effect by the Deputy Secretary, whichever occurs first.



Sec. 903.22  Final rate approval.

    (a) Any rate submitted to the FERC for confirmation and approval on 
a final basis shall be accompanied with such supporting data, studies, 
and documents as the FERC may require, and also with the transcripts of 
forums, written answers to questions, written comments, the 
Administrator's certification, and the statement of principal factors 
leading to the decision. The FERC shall also be furnished a listing of 
those customers and other participants in the rate proceeding who have 
requested they be informed of FERC action concerning the rates.
    (b) If the FERC confirms and approves Provisional Rates on a final 
basis, such confirmation and approval shall be effective as of the date 
such rates were placed in effect by the Deputy Secretary, as such date 
may have been adjusted by the Administrator. If the FERC confirms and 
approves on a final basis rates submitted by the Administrator without 
interim approval, such confirmation and approval shall be effective on a 
date set by the FERC.
    (c) If the FERC disapproves Provisional Rates or other submitted 
rates, the Administrator shall develop Substitute Rates which take into 
consideration the reasons given by the FERC for its disapproval. If, in 
the Administrator's judgment, public comment should be invited upon 
proposed Substitute Rates, the Administrator may provide for a public 
consultation and comment period before submitting the Substitute Rates. 
Whether or not such public consultation and comment periods are 
provided, the Administrator will, upon request, provide customers of the 
power system and other interested persons with copies of the principal 
documents used in the development of the Substitute Rates. Within 120 
days of the date of FERC disapproval of submitted rates, including 
Substitute Rates, or such additional time periods as the FERC may 
provide, the Administrator will submit the Substitute Rates to the FERC. 
A statement explaining the Administrator's decision shall accompany the 
submission.
    (d) A Provisional Rate that is disapproved by the FERC shall remain 
in effect until higher or lower rates are confirmed and approved by the 
FERC on a final basis or are superseded by other rates placed into 
effect by the Deputy Secretary on an interim basis: Provided, That if 
the Administrator does not file a Substitute Rate within 120 days of the 
disapproval or such greater time as the FERC may provide, and if the 
rate has been disapproved because the FERC determined that it would 
result in total revenues in excess of those required by law, the rate 
last previously confirmed and approved on a final basis will become 
effective on a date and for a period determined by the FERC and revenues 
collected in excess of such rate during such period will be refunded in 
accordance with paragraph (g) of this section.
    (e) If a Substitute Rate confirmed and approved on a final basis by 
the FERC is higher than the provisional rate which was disapproved, the 
Substitute Rate shall become effective on a subsequent date set by the 
FERC, unless a subsequent Provisional Rate even higher than the 
Substitute Rate has been put into effect. FERC confirmation and approval 
of the higher Substitute Rate shall constitute final confirmation and 
approval of the lower disapproved Provisional Rate during the interim 
period that it was in effect.
    (f) If a Substitute Rate confirmed and approved by the FERC on a 
final basis is lower than the disapproved provisional rate, such lower 
rate shall be effective as of the date the higher disapproved rate was 
placed in effect.

[[Page 644]]

    (g) Any overpayment shall be refunded with interest unless the FERC 
determines that the administrative cost of a refund would exceed the 
amount to be refunded, in which case no refund will be required. The 
interest rate applicable to any refund will be determined by the FERC.
    (h) A rate confirmed and approved by the FERC on a final basis shall 
remain in effect for such period or periods as the FERC may provide or 
until a different rate is confirmed, approved and placed in effect on an 
interim or final basis: Provided, That the Deputy Secretary may extend a 
rate on an interim basis beyond the period specified by the FERC.



Sec. 903.23  Rate extensions.

    (a) The following regulations shall apply to the extension of rates 
which were previously confirmed and approved by the FERC or the Federal 
Power Commission, or established by the Secretary of the Interior, and 
for which no adjustment is comtemplated:
    (1) The Administrator shall give Notice of the proposed extension at 
least 30 days before the expiration of the prior confirmation and 
approval, except that such period may be shortened for good cause shown.
    (2) The Administrator may allow for consultation and comment, as 
provided in these procedures, for such period as the Administrator may 
provide. One or more public information and comment forums may be held, 
as provided in these procedures, at such times and locations and with 
such advance Notice as the Administrator may provide.
    (3) Following notice of the proposed extension and the conclusion of 
any consultation and comment period, the Deputy Secretary may extend the 
rates on an interim basis.
    (b) Provisional Rates and other existing rates may be extended on a 
temporary basis by the Deputy Secretary without advance notice or 
comment pending further action pursuant to these regulations or by the 
FERC. The Deputy Secretary shall publish notice in the Federal Register 
of such extension and shall promptly advise the FERC of the extension.



PART 904_GENERAL REGULATIONS FOR THE CHARGES FOR THE SALE OF POWER FROM THE BOULDER CANYON PROJECT--Table of Contents



                        Subpart A_Power Marketing

Sec.
904.1 Purpose.
904.2 Scope.
904.3 Definitions.
904.4 Marketing responsibilities.
904.5 Revenue requirements.
904.6 Charge for capacity and firm energy.
904.7 Base charge.
904.8 Lower basin development fund contribution charge.
904.9 Excess capacity.
904.10 Excess energy.
904.11 Lay off of energy.
904.12 Payments to contractors.
904.13 Disputes.
904.14 Future regulations.

    Authority: Reclamation Act of 1902 (32 Stat. 388); Boulder Canyon 
Project Act of 1928 (43 U.S.C. 617 et seq.); Boulder Canyon Project 
Adjustment Act of 1940 (43 U.S.C. 618 et seq.); Department of Energy 
Organization Act (42 U.S.C. 7101 et seq.); Colorado River Storage 
Project Act of 1956 (43 U.S.C. 620 et seq.); Colorado River Basin 
Project Act of 1968 (43 U.S.C. 1501 et seq.); and Hoover Power Plant Act 
of 1984 (98 Stat. 1333 (43 U.S.C. 619 et seq.)).

    Source: 51 FR 43154, Nov. 28, 1986, unless otherwise noted.



                        Subpart A_Power Marketing



Sec. 904.1  Purpose.

    (a) The Secretary of Energy, acting by and through the Administrator 
of the Western Area Power Administration (Administrator), is authorized 
and directed to promulgate charges for the sale of power generated at 
the Boulder Canyon Project powerplant, and also to promulgate such 
general regulations as the Secretary finds necessary and appropriate in 
accordance with the power marketing authorities in the Reclamation Act 
of 1902 (32 Stat. 388) and all acts amendatory thereof and supplementary 
thereto, and the Department of Energy Organization Act (42 U.S.C. 7101 
et seq.).
    (b) In accordance with the Boulder Canyon Project Act of 1928 (43 
U.S.C. 617 et seq.), as amended and supplemented (Project Act); the 
Boulder Canyon Project Adjustment Act of 1940 (43

[[Page 645]]

U.S.C. 618 et seq.), as amended and supplemented (Adjustment Act); the 
Department of Energy Organization Act (42 U.S.C. 7101 et seq.); and the 
Hoover Power Plant Act of 1984 (98 Stat. 1333 (43 U.S.C. 619 et seq.)) 
(Hoover Power Plant Act); the Western Area Power Administration 
(Western) promulgates these General Regulations for the Charges for the 
Sale of Power From the Boulder Canyon Project (General Regulations) 
defining the methodology to be used in the computation of the charges 
for the sale of power from the Boulder Canyon Project.



Sec. 904.2  Scope.

    These General Regulations are effective June 1, 1987, and shall 
apply as the basis for computation of all charges applicable to any sale 
of power from the Boulder Canyon Project after May 31, 1987. ``General 
Regulations for Power Generation, Operation, Maintenance, and 
Replacement at the Boulder Canyon Project, Arizona/Nevada'' are the 
subject of a separate rulemaking of the Department of the Interior under 
43 CFR part 431. The ``General Regulations for Generation and Sale of 
Power in Accordance with the Boulder Canyon Project Adjustment Act'' 
(1941 General Regulations) dated May 20, 1941, and the ``General 
Regulations for Lease of Power'' dated April 25, 1930, terminate May 31, 
1987.



Sec. 904.3  Definitions.

    The following terms wherever used herein shall have the following 
meanings:
    (a) Billing Period shall mean the service period beginning on the 
first day and extending through the last day of any calendar month.
    (b) Boulder City Area Projects shall mean the Boulder Canyon 
Project, the Parker-Davis Project, and the United States entitlement in 
the Navajo Generating Station (a feature of the Central Arizona 
Project).
    (c) Capacity shall mean the aggregate of contingent capacity 
specified in section 105(a)(1)(A) and the contingent capacity specified 
in section 105(A)(1)(B) of the Hoover Power Plant Act (43 U.S.C. 619).
    (d) Central Arizona Project shall mean those works as described in 
section 1521(a) of the Colorado River Basin Project Act of 1968 (43 
U.S.C. 1501 et seq.), as amended.
    (e) Colorado River Dam Fund or Fund shall mean that special fund 
established by section 2 of the Project Act and which is to be used only 
for the purposes specified in the Project Act, the Adjustment Act, the 
Colorado River Basin Project Act of 1968, and the Hoover Power Plant 
Act.
    (f) Contract shall mean any contract for the sale of Boulder Canyon 
Project capacity and energy for delivery after May 31, 1987, between 
Western and any contractor.
    (g) Contractor shall mean the entities entering into contracts with 
Western for electric service pursuant to the Hoover Power Plant Act.
    (h) Excess Capacity shall mean capacity which is in excess of the 
lesser of: (1) Capacity that Hoover Powerplant is capable of generating 
with all units in service at a net effective head of 498 feet, or (2) 
1,951,000 kW.
    (i) Excess Energy shall mean energy obligated from the Project 
pursuant to section 105(a)(1)(C) of the Hoover Power Plant Act (43 
U.S.C. 619).
    (j) Firm Energy shall mean energy obligated from the Project 
pursuant to section 105(a)(1)(A) and section 105(a)(1)(B) of the Hoover 
Power Plant Act (43 U.S.C. 619).
    (k) Overruns shall mean the use of capacity or energy, without the 
approval of Western, in amounts greater than Western's contract delivery 
obligation in effect for each type of service provided for in the 
Contract.
    (l) Project or Boulder Canyon Project shall mean all works 
authorized by the Project Act, the Hoover Power Plant Act, and any 
future additions authorized by Congress, to be constructed and owned by 
the United States, but exclusive of the main canal and appurtenances 
authorized by the Project Act, now known as the All-American Canal.
    (m) Replacements shall mean such work, materials, equipment, or 
facilities as determined by the United States to be necessary to keep 
the Project in good operating condition, but shall not include (except 
where used in conjunction with the word

[[Page 646]]

``emergency'' or the phrase ``however necessitated'') work, materials, 
equipment, or facilities made necessary by any act of God, or of the 
public enemy, or by any major catastrophe.
    (n) Uprating Program shall mean the program authorized by section 
101(a) of the Hoover Power Plant Act (43 U.S.C. 619(a)) for increasing 
the capacity of existing generating equipment and appurtenances at the 
Hoover Powerplant, as generally described in the report of the 
Department of the Interior, Bureau of Reclamation, entitled ``Hoover 
Powerplant Uprating, Special Report,'' issued in May 1980, as 
supplemented in the report entitled, ``January 1985 Supplement (revised 
September 1985) to Hoover Powerplant Uprating, Special Report-May 
1980.''



Sec. 904.4  Marketing responsibilities.

    (a) Capacity and energy available from the Project will be marketed 
by Western under terms of the Conformed General Consolidated Power 
Marketing Criteria or Regulations for Boulder City Area Projects 
(Conformed Criteria) published in the Federal Register (49 FR 50582) on 
December 28, 1984. Western shall dispose of capacity and energy from the 
Project in accordance with section 105(a)(1) of the Hoover Power Plant 
Act (43 U.S.C. 619(a)(1)), these General Regulations, and the Contracts 
between the Contractors and Western.
    (b) Procedures for the scheduling and delivery of capacity and 
energy shall be provided for in the Contracts between the Contractors 
and Western.



Sec. 904.5  Revenue requirements.

    (a) Western shall collect all electric service revenues from the 
Project in accordance with applicable statutes and regulations and 
deposit such revenues into the Colorado River Dam Fund. All receipts 
from the Project shall be available for payment of the costs and 
financial obligations associated with the Project. The Secretary of the 
Interior is responsible for the administration of the Colorado River Dam 
Fund.
    (b) The electric service revenue of the Project shall be collected 
through a charge, computed to be sufficient, together with other net 
revenues from the Project, to recover the following costs and financial 
obligations associated with the Project over the appropriate repayment 
periods set out in paragraph (c) of this section:
    (1) Annual costs of operation and maintenance;
    (2) Annual interest on unpaid investments in accordance with 
appropriate statutory authorities;
    (3) Annual repayment of funds, and all reasonable costs incurred in 
obtaining such funds, advanced by non-Federal Contractors to the 
Secretary of the Interior for the Uprating Program;
    (4) The annual payment of $300,000 to each of the States of Arizona 
and Nevada provided for in section 618(c) of the Adjustment Act and 
section 1543(c)(2) of the Colorado River Basin Project Act (43 U.S.C. 
1501 et seq.) (Basin Act), as amended or supplemented;
    (5) Capital costs of investments and Replacements, including amounts 
readvanced from the United States Treasury (Treasury);
    (6) Repayment to the Treasury of the advances to the Colorado River 
Dam Fund for the Project made prior to May 31, 1987, for which payment 
was deferred because of a deficiency in firm energy generation due to a 
shortage of available water, as provided for in article 14(a) of the 
1941 General Regulations and section 8 of the Boulder City Act of 1958 
(72 Stat. 1726), as shown on the books of accounts of Reclamation as of 
May 31, 1987;
    (7) Repayment to the Treasury of the first $25,000,000 of advances 
made to the Colorado River Dam Fund deemed to be allocated to flood 
control by section 617a(b) of the Project Act as provided by section 
618f of the Adjustment Act; and
    (8) Any other financial obligations of the Project imposed in 
accordance with law.
    (c) The Project repayment period shall extend to the final year 
allowed under applicable cost recovery criteria. The revenue for the 
costs and financial obligations set out in paragraph (b) of this section 
shall be collected over the following repayment periods:
    (1) The repayment period for advances made to the Colorado River Dam 
Fund from funds advanced to the

[[Page 647]]

Secretary of the Interior by non-Federal entities for the Uprating 
Program and associated work shall be the period commencing with the 
first day of the month following completion of each segment of the 
Uprating Program, or June 1, 1987, whichever is later, and ending 
September 30, 2017;
    (2) The repayment period for the payments to the Treasury of the 
advances to the Colorado River Dam Fund for the Project which were 
payable prior to May 31, 1987, but which were deferred pursuant to 
article 14(a) of the 1941 General Regulations and section 8 of the 
Boulder City Act of 1958, shall be the power contract period beginning 
June 1, 1987, and ending September 30, 2017. Such repayment period is 
based on a 50-year repayment period beginning June 1, 1937, adjusted for 
the periods the initial payments were deferred;
    (3) The repayment period for the payment to the Treasury of the 
first $25,000,000 of advances made to the Colorado River Dam Fund deemed 
to be allocated to flood control by section 617a(b) of the Project Act 
and deferred by section 618(f) of the Adjustment Act shall be the 50-
year period beginning June 1, 1987;
    (4) The repayment period for advances to the Colorado River Dam Fund 
for the Project made on or after June 1, 1937, and prior to June 1, 
1987, shall be the 50-year period beginning June 1 immediately following 
the year of operation in which the funds were advanced;
    (5) The repayment period for investments, other than for the visitor 
facilities authorized by section 101(a) of the Hoover Power Plant Act 
(43 U.S.C. 619(a)), made from Federal appropriations on or after June 1, 
1987, shall be a 50-year period beginning with the first day of the 
fiscal year following the fiscal year the investment is placed in 
service; and
    (6) The repayment period for the visitor facilities authorized by 
section 101(a) of the Hoover Power Plant Act (43 U.S.C. 619(a)) shall be 
the 50-year period beginning June 1, 1987, or when substantially 
completed, as determined by the Secretary of the Interior, if later.
    (d) Annual costs for operation and maintenance and payments to 
States as set out in paragraph (b) of this section shall be collected as 
long as revenues accrue from the operation of the Project.
    (e) Surplus revenues will also be collected for transfer from the 
Colorado River Dam Fund for contribution to the Lower Colorado River 
Basin Development Fund pursuant to section 1543(c)(2) of the Basin Act 
as amended by the Hoover Power Plant Act to provide revenue for the 
purposes of sections 1543(f) and 1543(g) of the Basin Act.
    (f) All annual costs will be calculated based on a Federal fiscal 
year. To accommodate the transition from the pre-1987 operating year of 
June 1 to May 31 to a fiscal year, there will be a 4-month transition 
period beginning June 1, 1987, and ending September 30, 1987.
    (g) If integrated operation of the Boulder Canyon Project with other 
Boulder City Area Projects and other Federal projects on the Colorado 
River, as provided in Sec. 904.9 of these General Regulations, confers 
a direct power benefit upon such other Boulder City Area Projects and 
such other Federal projects, or if a direct power benefit is conferred 
by other Boulder City Area Projects or other Federal projects on the 
Colorado River upon the Boulder Canyon Project, Western shall equitably 
apportion such benefits and appropriate charges among the Boulder Canyon 
Project, other Boulder City Area Projects, and other Federal projects on 
the Colorado River.



Sec. 904.6  Charge for capacity and firm energy.

    The charge for Capacity and Firm Energy from the Project shall be 
composed of two separate charges; a charge to provide for the basic 
revenue requirements, as identified in paragraphs (b), (c), and (d) of 
Sec. 904.5 of these General Regulations (Base Charge), and a charge to 
provide the surplus revenue for the Lower Colorado River Basin 
Development Fund contribution, as identified in paragraph (e) of Sec. 
904.5 of these General Regulations (Lower Basin Development Fund 
Contribution Charge).

[[Page 648]]



Sec. 904.7  Base charge.

    (a) The Base Charge shall be developed by the Administrator and 
promulgated in accordance with appropriate DOE regulations. The Base 
Charge shall be composed of a capacity component and an energy 
component.
    (b) The capacity component of the Base Charge shall be a dollar per 
kilowattmonth amount determined by (1) multiplying the estimated average 
annual revenue requirement developed pursuant to paragraphs (b), (c), 
and (d) of Sec. 904.5 of these General Regulations by 50 percent, and 
(2) dividing the results of that multiplication by the estimated average 
annual kW rating of the Project, and (3) dividing the quotient by 12. 
The total estimated kW rating will be based on the powerplant output 
capability with all units in service at 498 feet of net effective head 
or 1,951,000 kW, whichever is less. The capacity component of the Base 
Charge shall be applied each billing period to each kW of rated output 
to which each Contractor is entitled by Contract. Adjustments to the 
application of the capacity component shall be made during outages which 
cause significant reductions in capacity as provided by the Contract.
    (c) The energy component of the Base Charge shall be a mills per kWh 
amount determined by (1) multiplying the estimated average annual 
revenue requirements developed pursuant to paragraphs (b), (c), and (d) 
of Sec. 904.5 of these General Regulations by 50 percent and (2) 
dividing the results of that multiplication by the average annual kWh 
estimated to be available from the Project. The energy component of the 
Base Charge shall be applied to each kWh made available to each 
Contractor, as provided for by Contract, except for the energy purchased 
by Western, at the request of a Contractor, to meet that Contractor's 
deficiency in Firm Energy pursuant to section 105(a)(2) of the Hoover 
Power Plant Act (43 U.S.C. 619(a)(2)) and section F of the Conformed 
Criteria, and that Contractor's Uprating Program credit carry forward, 
as provided by Contract.
    (d) Application of the Base Charge to capacity and energy overruns 
will be provided for by Contract. The capacity component and the energy 
component of the Base Charge shall be applied each billing period for 
each Contractor.
    (e) The Base Charge shall be reviewed annually. The Base Charge 
shall be adjusted either upward or downward, when necessary and 
administratively feasible, to assure sufficient revenues to effect 
payment of all costs and financial obligations associated with the 
Project pursuant to paragraphs (b), (c), and (d) of Sec. 904.5 of these 
General Regulations. The Administrator shall provide all Contractors an 
opportunity to comment on any proposed adjustment to the Base Charge 
pursuant to the DOE's power rate adjustment procedures then in effect.



Sec. 904.8  Lower basin development fund contribution charge.

    (a) The Lower Basin Development Fund Contribution Charge will be 
developed by the Administrator of Western on the basis that the 
equivalent of 4\1/2\ mills or 2\1/2\ mills per kWh, as appropriate, 
required to be included in the rates charged to purchasers pursuant to 
section 1543(c)(2) of the Basin Act, as amended by the Hoover Power 
Plant Act, shall be collected from the energy sales of the Project.
    (b) The Lower Basin Development Fund Contribution Charge shall be 
applied to each kWh made available to each Contractor, as provided for 
by Contract, except for the energy purchased by Western at the request 
of a Contractor to meet:
    (1) That Contractor's deficiency in Firm Energy, pursuant to section 
105(a)(2) of the Hoover Power Plant Act (43 U.S.C. 619(a)(2)) and 
section F of the Conformed Criteria; and
    (2) That Contractor's Uprating Program credit carry forward as 
provided by Contract. A 4\1/2\ mills per kWh charge shall be applied to 
each kWh made available to an Arizona Contractor, and a 2\1/2\ mills per 
kWh charge shall be applied to each kWh made available to a California 
or Nevada Contractor; provided, that after the repayment period of the 
Central Arizona Project, a 2\1/2\ mills per kWh charge shall be applied 
to each kWh made available to the Arizona, California, and Nevada 
Contractors. The Lower Basin Development Fund Contribution

[[Page 649]]

Charge shall be applied to energy overruns. The Lower Basin Development 
Fund Contribution Charge shall be applied each billing period for each 
Contractor.



Sec. 904.9  Excess capacity.

    (a) If the Uprating Program results in Excess Capacity, Western 
shall be entitled to such Excess Capacity to integrate the operation of 
the Boulder City Area Projects and other Federal Projects on the 
Colorado River. Specific criteria for the use of Excess Capacity by 
Western will be provided by Contract. All Excess Capacity not required 
by Western for the purposes specified by Contract will be available to 
all Contractors at no additional cost on a pro rata basis based on the 
ratio of each Contractor's Capacity allocation to the total Capacity 
allocation.
    (b) Credits for benefits resulting from project integration shall be 
determined by Western and such benefits shall be apportioned in 
accordance with paragraph (9) of Sec. 904.5 of these General 
Regulations.



Sec. 904.10  Excess energy.

    (a) If excess Energy is determined by the United States to be 
available, it shall be made available to the Contractors, in accordance 
with the priority entitlement of section 105(a)(1)(C) of the Hoover 
Power Plant Act (43 U.S.C. 619(a)(1)(c)). After the annual first- and 
second-priority entitlement to excess energy has been obligated for 
delivery, Western will make available one-third of the third-priority 
excess energy to the Arizona Power Authority, one-third to the Colorado 
River Commission of Nevada, and one-third to the California Contractors.
    (b) Western will make available third-priority excess energy to the 
California Contractors based on the following formula:

F=\1/2\ (A/B+C/D) (E); Where:

A=Contractor's allocated Capacity
B=Total California allocated Capacity
C=Contractor's allocated Firm Energy
D=Total California allocated Firm Energy
E=Third-priority Excess Energy available to California
F=Contractor's third-priority Excess Energy

    (c) The charge for all Excess Energy shall be the charge for Boulder 
Canyon Project Firm Energy existing at the time the Excess Energy is 
made available to the Contractor, including the appropriate Lower Basin 
Development Fund Contribution Charge.



Sec. 904.11  Lay off of energy.

    (a) If any Contractor determines that it is temporarily unable to 
utilize Firm Energy or Excess Energy, Western will, at the Contractor's 
request, attempt to lay off the Firm Energy or Excess Energy the 
Contractor declares to be available for lay off, pursuant to the 
provisions for lay off of energy specified in the Contract.
    (b) If Western is unable to lay off such energy, or if the 
Contractor fails to request Western to attempt to lay off the energy, 
the Contractor will be billed for the Firm Energy or Excess Energy that 
was available to the Contractor but could not be delivered to the 
Contractor or sold to another customer.
    (c) In the event that Western must lay off the Firm Energy or Excess 
Energy at a rate lower than the effective Firm Energy rate, the 
Contractor will be billed for the difference between the amount that 
Western would have received at the then existing Firm Energy rate, 
including the appropriate Lower Basin Development Fund Contribution 
Charge, and the amount actually received.



Sec. 904.12  Payments to contractors.

    (a) Funds advanced to the Secretary of the Interior for the Uprating 
Program and costs reasonably incurred by the Contractor in advancing 
such funds, as approved by Western, shall be returned to the Contractor 
advancing the funds during the Contract period through credits on that 
Contractor's power bills. Appropriate credits will be developed and 
applied pursuant to terms and conditions agreed to by contract or 
agreement.
    (b) All other obligations of the United States to return funds to a 
Contractor shall be repaid to such Contractor through credits on power 
bills, with or without interest, pursuant to terms and conditions agreed 
to by contract or agreement.

[[Page 650]]



Sec. 904.13  Disputes.

    (a) All actions by the Secretary of Energy, acting by and through 
the Administrator of Western, shall be binding unless or until reversed 
or modified in accordance with provisions contained herein.
    (b) Any disputes or disagreements as to interpretation or 
performance of the provisions of these General Regulations under the 
responsibility of Western shall first be presented to and decided by the 
Administrator. The Administrator shall be deemed to have denied the 
Contractor's contention or claim if it is not acted upon within ninety 
(90) days of its having been presented.
    (c) The decision of the Administrator shall be final unless, within 
thirty (30) days from the date of such decision, a written request for 
arbitration is received by the Administrator. The Administrator shall 
have ninety (90) days from the date of receipt of a request for 
arbitration either to concur in or deny in writing the request for such 
arbitration. Failure by the Administrator to take any action within the 
ninety (90) day period shall be deemed a denial of the request for 
arbitration. In the event of a denial of a request for arbitration, the 
decision of the Administrator shall become final. Upon a decision 
becoming final, the disputing Contractor's remedy lies with the 
appropriate Federal court. Any claim that a final decision of the 
Administrator violates any right accorded the Contractor under the 
Project Act, the Adjustment Act, or Title I of the Hoover Power Plant 
Act is barred unless suit asserting such claim is filed in a Federal 
court of competent jurisdiction within one (1) year after final refusal 
by the Administrator to correct the action complained of, in accordance 
with section 105(h) of the Hoover Power Plant Act.
    (d) When a timely request for arbitration is received by the 
Administrator and the Administrator concurs in writing, the disputing 
Contractor and the Administrator shall, within thirty (30) days after 
receipt of notice of such concurrence, each name one arbitrator to the 
panel of arbitrators which will decide the dispute. All arbitrators 
shall be skilled and experienced in the field pertaining to the dispute. 
In the event there is more than one disputing Contractor, the disputing 
Contractors shall collectively name one arbitrator to the panel of 
arbitrators. In the event of their failure collectively to name such an 
arbitrator within fifteen (15) days after their first meeting, that 
arbitrator shall be named as provided in the Commercial Arbitration 
Rules of the American Arbitration Association. The two arbitrators thus 
selected shall name a third arbitrator within thirty (30) days of their 
first meeting. In the event of their failure to so name such third 
arbitrator, that arbitrator shall be named as provided in the Commercial 
Arbitration Rules of the American Arbitration Association. The third 
arbitrator shall act as chairperson of the panel. The arbitration shall 
be governed by the Commercial Arbitration Rules of the American 
Arbitration Association. The arbitration shall be limited to the issue 
submitted. The panel of arbitrators shall not rewrite, change, or amend 
these General Regulations or the Contracts of any of the parties to the 
dispute. The panel of arbitrators shall render a final decision in this 
dispute within sixty (60) days after the date of the naming of the third 
arbitrator. A decision of any two of the three arbitrators named to the 
panel shall be final and binding on all parties involved in the dispute.



Sec. 904.14  Future regulations.

    (a) Western may from time to time promulgate such additional or 
amendatory regulations as deemed necessary for the administration of the 
Project in accordance with applicable law; Provided, That no right under 
any Contract shall be impaired or obligation thereunder be extended 
thereby.
    (b) Any modification, extension, or waiver of any provision of these 
General Regulations granted for the benefit of any one or more 
Contractors shall not be denied to any other Contractor.
    (c) Western reserves the right to terminate, modify, or extend these 
regulations, either partially or in their entirety, to the extent 
permitted by law or existing contract.

[[Page 651]]



PART 905_ENERGY PLANNING AND MANAGEMENT PROGRAM--Table of Contents



                      Subpart A_General Provisions

Sec.
905.1 What are the purposes of the Energy Planning and Management 
          Program?
905.2 What are the key definitions of this part?

                 Subpart B_Integrated Resource Planning

905.10 Who must comply with the integrated resource planning and 
          reporting regulations in this subpart?
905.11 What must an IRP include?
905.12 How must IRPs be submitted?
905.13 When must IRPs be submitted?
905.14 Does Western require annual IRP progress reports?
905.15 What are the requirements for the small customer plan 
          alternative?
905.16 What are the requirements for the minimum investment report 
          alternative?
905.17 What are the requirements for the energy efficiency and/or 
          renewable energy report (EE/RE report) alternative?
905.18 What are the criteria for Western's approval of submittals?
905.19 How are plans and reports reviewed and approved?
905.20 When are customers in noncompliance with the regulations in this 
          subpart, and how does Western ensure compliance?
905.21 What is the administrative appeal process?
905.22 How does Western periodically evaluate customer actions?
905.23 What are the opportunities for using the Freedom of Information 
          Act to request plan and report data?
905.24 Will Western conduct reviews of this program?

                  Subpart C_Power Marketing Initiative

905.30 Purpose and applicability.
905.31 Term.
905.32 Resource extensions and resource pool size.
905.33 Extension formula.
905.34 Adjustment provisions.
905.35 New customer eligibility.
905.36 Marketing criteria.
905.37 Process.

                        Subpart D_Energy Services

905.40 Technical assistance.

    Authority: 42 U.S.C. 7152, 7191; 42 U.S.C. 7275-7276c.

    Source: 60 FR 54174, Oct. 20, 1995, unless otherwise noted.



                      Subpart A_General Provisions

    Source: 65 FR 16795, Mar. 30, 2000, unless otherwise noted.



Sec. 905.1  What are the purposes of the Energy Planning and Management Program?

    The purposes of the Energy Planning and Management Program (EPAMP) 
are to meet the objectives of Section 114 of the Energy Policy Act of 
1992 (EPAct) and to extend long-term firm power resource commitments 
while supporting customer integrated resource planning (IRP); demand-
side management (DSM), including energy efficiency, conservation, and 
load management; and the use of renewable energy. Subpart B, Integrated 
Resource Planning, allows customers of the Western Area Power 
Administration (Western) to meet the objectives of section 114 of EPAct 
through integrated resource planning or by other means, such as 
attaining a minimum level of investment in energy efficiency and/or 
renewable energy, collecting a charge to support defined public 
benefits, or complying with a mandated energy efficiency and/or 
renewable energy reporting requirement.



Sec. 905.2  What are the key definitions of this part?

    Administrator means Western's Administrator.
    Customer means any entity that purchases firm capacity, with or 
without energy, from Western under a long-term firm power contract. The 
term also includes a member-based association (MBA) and its distribution 
or user members that receive direct benefit from Western's power, 
regardless of which holds the contract with Western.
    Energy efficiency and/or renewable energy (EE/RE) report means the 
report documenting energy efficiency and/or renewable energy activities 
imposed by a State, Tribal, or the Federal Government upon a State, 
Tribal, or Federal end-use customer within its jurisdiction.
    Integrated resource planning means a planning process for new energy 
resources that evaluates the full range of alternatives, including new 
generating

[[Page 652]]

capacity, power purchases, energy conservation and efficiency, 
cogeneration and district heating and cooling applications, and 
renewable energy resources, to provide adequate and reliable service to 
a customer's electric consumers.
    Integrated resource planning cooperative (IRP cooperative) means a 
group of Western's customers and/or their distribution or user members 
with geographic, resource supply, or other similarities that have joined 
together, with Western's approval, to complete an IRP.
    Member-based association (MBA) means:
    (1) An entity composed of member utilities or user members, or
    (2) An entity that acts as an agent for, or subcontracts with, but 
does not assume power supply responsibility for its principals or 
subcontractors, who are its members.
    Minimum investment report means the report documenting a mandatory 
minimum level of financial or resource investment in demand-side 
management (DSM) initiatives, including energy efficiency and load 
management, and/or renewable energy activities, such as investment of a 
set minimum percentage of the utility's gross revenues in renewable 
energy, which is imposed by State, Tribal, or Federal law upon a 
customer under its jurisdiction. For the purposes of this part, the 
minimum investment report includes reports about public benefits 
charges, as well.
    Public benefits charge means a mandatory financial charge imposed by 
State, Tribal, or Federal law upon a customer under its jurisdiction to 
support one or more of the following: energy efficiency, conservation, 
or demand-side management; renewable energy; efficiency or alternative 
energy-related research and development; low-income energy assistance; 
and/or other similar programs defined by applicable State, Tribal, or 
Federal law. This term is also known as a public goods or system benefit 
charge in the utility industry.
    Region means a Western regional office or management center, and the 
geographic territory served by that regional office or management 
center: the Desert Southwest Customer Service Region, the Rocky Mountain 
Customer Service Region, the Sierra Nevada Customer Service Region, the 
Upper Great Plains Customer Service Region, or the Colorado River 
Storage Project Management Center.
    Renewable energy means any source of electricity that is self-
renewing, including plant-based biomass, waste-based biomass, 
geothermal, hydropower, ocean thermal, solar (active and passive), and 
wind.
    Small customer means a utility customer with total annual sales and 
usage of 25 gigawatthours (GWh) or less, as averaged over the previous 5 
years, which is not a member of a joint-action agency or generation and 
transmission cooperative with power supply responsibility; or any end-
use customer.
    Western means the Western Area Power Administration.



                 Subpart B_Integrated Resource Planning

    Source: 65 FR 16796, Mar. 30, 2000, unless otherwise noted.



Sec. 905.10  Who must comply with the integrated resource planning and reporting regulations in this subpart?

    (a) Integrated resource plans (IRP) and alternatives. Each Western 
customer must address its power resource needs in an IRP prepared and 
submitted to Western as described in this subpart. Alternatively, 
Western customers may submit a small customer plan, minimum investment 
report or EE/RE report as provided in this subpart.
    (b) Rural Utility Service and state utility commission reports. For 
customers subject to IRP filings or other electrical resource use 
reports from the Rural Utilities Service or a state utility commission, 
nothing in this part requires a customer to take any action inconsistent 
with those requirements.



Sec. 905.11  What must an IRP include?

    (a) General. Integrated resource planning is a planning process for 
new energy resources that evaluates the full range of alternatives, 
including new generating capacity, power purchases, energy conservation 
and efficiency, cogeneration and district heating and

[[Page 653]]

cooling applications, and renewable energy resources, to provide 
adequate and reliable service to a customer's electric consumers. An IRP 
supports customer-developed goals and schedules. The plan must take into 
account necessary features for system operation, such as diversity, 
reliability, dispatchability, and other risk factors; must take into 
account the ability to verify energy savings achieved through energy 
efficiency and the projected durability of such savings measured over 
time; and must treat demand and supply resources on a consistent and 
integrated basis.
    (b) IRP criteria. IRPs must consider electrical energy resource 
needs and may consider, at the customer's option, water, natural gas, 
and other energy resources. Each IRP submitted to Western must include:
    (1) Identification of resource options. Identification and 
comparison of resource options is an assessment and comparison of 
existing and future supply-and demand-side resource options available to 
a customer based upon its size, type, resource needs, geographic area, 
and competitive situation. Resource options evaluated by the specific 
customer must be identified. The options evaluated should relate to the 
resource situation unique to each Western customer as determined by 
profile data (such as service area, geographical characteristics, 
customer mix, historical loads, projected growth, existing system data, 
rates, and financial information) and load forecasts. Specific details 
of the customer's resource comparison need not be provided in the IRP 
itself. They must, however, be made available to Western upon request.
    (i) Supply-side options include, but are not limited to, purchased 
power contracts and conventional and renewable generation options.
    (ii) Demand-side options alter the customer's use pattern to provide 
for an improved combination of energy services to the customer and the 
ultimate consumer.
    (iii) Considerations that may be used to develop potential options 
include cost, market potential, consumer preferences, environmental 
impacts, demand or energy impacts, implementation issues, revenue 
impacts, and commercial availability.
    (iv) The IRP discussion of resource options must describe the 
options chosen by the customer, clearly demonstrating that decisions 
were based on a reasonable analysis of the options. The IRP may strike a 
balance among the applicable resource evaluation factors.
    (2) Action plan. IRPs must include an action plan describing 
specific actions the customer will take to implement its IRP.
    (i) The IRP must state the time period that the action plan covers, 
and the action plan must be updated and resubmitted to Western when this 
time period expires. The customer may submit a revised action plan with 
the annual IRP progress report discussed in Sec. 905.14.
    (ii) For those customers not experiencing or anticipating load 
growth, the action plan requirement for the IRP may be satisfied by a 
discussion of current actions and procedures in place to periodically 
reevaluate the possible future need for new resources. The action plan 
must include a summary of:
    (A) Actions the customer expects to take in accomplishing the goals 
identified in the IRP;
    (B) Milestones to evaluate accomplishment of those actions during 
implementation; and
    (C) Estimated energy and capacity benefits for each action planned.
    (3) Environmental effects. To the extent practical, the customer 
must minimize adverse environmental effects of new resource acquisitions 
and document these efforts in the IRP. Customers are neither precluded 
from nor required to include a quantitative analysis of environmental 
externalities as part of the IRP process. IRPs must include a 
qualitative analysis of environmental effects in summary format.
    (4) Public participation. The customer must provide ample 
opportunity for full public participation in preparing and developing an 
IRP (or any IRP revision or amendment). The IRP must include a brief 
description of public involvement activities, including how the customer 
gathered information from the public, identified public concerns, shared 
information with the

[[Page 654]]

public, and responded to public comments. Customers must make additional 
documentation identifying or supporting the full public process 
available to Western upon request.
    (i) As part of the public participation process for an MBA, the 
governing body of an MBA must approve the IRP in accordance with the 
MBA's by-laws, confirming that all requirements have been met. To 
indicate approval in the case of an individual IRP submitted by an 
entity with a board of directors or city council, a responsible official 
must sign the IRP submitted to Western or the customer must document 
passage of an approval resolution by the appropriate governing body 
included or referred to in the IRP.
    (ii) For Western customers that do not purchase electricity for 
resale, such as some State, Tribal, and Federal agencies, the customer 
can satisfy the public participation requirement by having a top 
management official with resource acquisition responsibility review and 
concur on the IRP. The customer must note this concurrence in the IRP.
    (5) Load forecasting. An IRP must include a statement that the 
customer conducted load forecasting. Load forecasting should include 
data that reflects the size, type, resource conditions, and demographic 
nature of the customer using an accepted load forecasting method, 
including but not limited to the time series, end-use, and econometric 
methods. The customer must make the load forecasting data available to 
Western upon request.
    (6) Measurement strategies. The IRP must include a brief description 
of measurement strategies for options identified in the IRP to determine 
whether the IRP's objectives are being met. These validation methods 
must include identification of the baseline from which a customer will 
measure the benefits of its IRP implementation. A reasonable balance may 
be struck between the cost of data collection and the benefits resulting 
from obtaining exact information. Customers must make performance 
validation and evaluation data available to Western upon request.
    (c) IRP criteria for certain customers not qualifying for ``small 
customer'' status. Customers with limited economic, managerial, and 
resource capability and total annual sales and usage of 25 gigawatthours 
(GWh) or less who are members of joint-action agencies and generation 
and transmission cooperatives with power supply responsibility are 
eligible for the criteria specified in paragraphs (c)(1) and (c)(2) of 
this section.
    (1) Each IRP submitted by a customer under paragraph (c) of this 
section must:
    (i) Consider all reasonable opportunities to meet future energy 
service requirements using DSM techniques, renewable energy resources, 
and other programs; and
    (ii) Minimize, to the extent practical, adverse environmental 
effects.
    (2) Each IRP submitted by a customer under paragraph (c) of this 
section must include, in summary form:
    (i) Customer name, address, phone number, email and Website if 
applicable, and contact person;
    (ii) Customer type;
    (iii) Current energy and demand profiles, and data on total annual 
energy sales and usage for the past 5 years, which Western will use to 
verify that customers qualify for these criteria;
    (iv) Future energy services projections;
    (v) How items in paragraphs (c)(1)(i) and (c)(1)(ii) of this section 
were considered; and
    (vi) Actions to be implemented over the customer's planning 
timeframe.

[65 FR 16795, Mar. 30, 2000, as amended at 73 FR 35062, June 20, 2008]



Sec. 905.12  How must IRPs be submitted?

    (a) Number of IRPs submitted. Except as provided in paragraph (c) of 
this section, one IRP is required per customer, regardless of the number 
of long-term firm power contracts between the customer and Western.
    (b) Method of submitting IRPs. Customers must submit IRPs to Western 
under one of the following options:
    (1) Customers may submit IRPs individually.
    (2) MBAs may submit IRPs for each of their members or submit one IRP 
on behalf of all or some of their members. An IRP submitted by an MBA 
must

[[Page 655]]

specify the responsibilities and participation levels of individual 
members and the MBA. Any member of an MBA may submit an individual IRP 
to Western instead of being included in an MBA IRP.
    (3) Customers may submit IRPs as regional/IRP cooperatives when 
previously approved by Western. Western encourages customers to prepare 
``regional'' IRPs. Regional IRPs are voluntary and participants need not 
be members of an MBA or a Western customer. Regional/IRP cooperatives 
may also submit small customer plans, minimum investment reports, and 
EE/RE reports on behalf of eligible IRP cooperative members.
    (c) Alternatives to submitting individual IRPs. Customers with 
Western approval to submit small customer plans, minimum investment or 
EE/RE reports may substitute the applicable plan or report instead of an 
IRP. Each customer that intends to seek approval for IRP cooperative, 
small customer, minimum investment report or EE/RE report status must 
provide advance written notification to Western. A new customer must 
provide this notification to the Western Regional Manager of the Region 
in which the customer is located within 30 days from the time it becomes 
a customer. Any customer may resubmit an IRP or notify Western of its 
plan to change its compliance method at any time so long as there is no 
period of noncompliance.

[65 FR 16795, Mar. 30, 2000, as amended at 73 FR 35062, June 20, 2008]



Sec. 905.13  When must IRPs be submitted?

    (a) Submitting the initial IRP. Except as provided in paragraph (c) 
of this section, customers that have not previously had an IRP approved 
by Western must submit the initial IRP to the appropriate Regional 
Manager no later than 1 year after May 1, 2000, or after becoming a 
customer, whichever is later.
    (b) Updates and amendments to IRPs. Customers must submit updated 
IRPs to the appropriate Regional Manager every 5 years after Western's 
approval of the initial IRP. Customers that complied with Western's IRP 
regulations in effect before May 1, 2000 must maintain their submission 
and resubmission schedules previously in effect. Customers may submit 
amendments and revisions to IRPs at any time.
    (c) IRP cooperatives. Customers with geographic, resource supply, 
and other similarities may join together and request, in writing, 
Western's approval to become an IRP cooperative. Western will respond to 
IRP cooperative status requests within 30 days of receiving a request. 
If Western disapproves a request for IRP cooperative status, the 
requesting participants must maintain their currently applicable 
integrated resource or small customer plans, or submit the initial IRPs 
no later than 1 year after the date of the disapproval letter. Western's 
approval of IRP cooperative status will not be based on any potential 
participant's contractual status with Western. Each IRP cooperative must 
submit an IRP for its participants within 18 months after Western 
approves IRP cooperative status.



Sec. 905.14  Does Western require annual IRP progress reports?

    Yes, customers must submit IRP progress reports each year within 30 
days of the anniversary date of the approval of the currently applicable 
IRP. The reports must describe the customer's accomplishments achieved 
under the action plan, including projected goals and implementation 
schedules, and energy and capacity benefits and renewable energy 
developments achieved as compared to those anticipated. Western prefers 
measured values, but will accept reasonable estimates if measurement is 
infeasible or not cost-effective. Instead of a separate progress report, 
the customer may use any other annual report that the customer submits 
to Western or another entity, at the customer's discretion, if that 
report contains all required data for the previous full year and is 
submitted within 30 days of the approval anniversary date of the 
currently applicable IRP. With Western's approval, customers may submit 
reports outside of the 30-day anniversary date window.

[[Page 656]]



Sec. 905.15  What are the requirements for the small customer plan alternative?

    (a) Requesting small customer status. Small customers may submit a 
request to prepare a small customer plan instead of an IRP. Requests for 
small customer status from electric utilities must include data on total 
annual energy sales and usage for the 5 years prior to the request. 
Western will average this data to determine overall annual energy sales 
and usage so that uncontrollable events, such as extreme weather, do not 
distort levelized energy sales and usage. Requests from end-use 
customers must only document that the customer does not purchase 
electricity for resale. Western will respond to small customer status 
requests within 30 days of receiving the request. If Western disapproves 
a request, the customer must maintain its currently applicable IRP, or 
submit the initial IRP no later than 1 year after the date of the 
disapproval letter. Alternatively, the customer may submit a request for 
minimum investment report or EE/RE report status, as appropriate.
    (b) Small customer plan contents. Small customer plans must:
    (1) Consider all reasonable opportunities to meet future energy 
service requirements using demand-side management techniques, renewable 
energy resources, and other programs that provide retail consumers with 
electricity at reasonable cost;
    (2) Minimize, to the extent practical, adverse environmental 
effects; and
    (3) Present in summary form the following information:
    (i) Customer name, address, phone number, email and Website if 
applicable, and contact person;
    (ii) Type of customer;
    (iii) Current energy and demand profiles and data on total annual 
energy sales and usage for the previous 5 years for utility customers, 
or current energy and demand use for end-use customers;
    (iv) Future energy services projections;
    (v) How items in paragraphs (b)(1) and (b)(2) of this section were 
considered; and
    (vi) Actions to be implemented over the customer's planning 
timeframe.
    (c) When to submit small customer plans. Small customers must submit 
the first small customer plan to the appropriate Western Regional 
Manager within 1 year after Western approves the request for small 
customer status. Small customers must submit, in writing, a small 
customer plan every 5 years.
    (d) Maintaining small customer status. (1) Every year on the 
anniversary of Western's approval of the plan, small customers must 
submit a letter to Western verifying that either their annual energy 
sales and usage is 25 GWh or less averaged over the previous 5 years, or 
they continue to be end-use customers. The letter must also identify 
their achievements against targeted action plans, as well as the revised 
summary of actions if the previous summary of actions has expired.
    (2) Western will use the letter for overall program evaluation and 
comparison with the customer's plan, and for verification of continued 
small customer status. Customers may submit annual update letters 
outside of the anniversary date if previously agreed to by Western so 
long as the letter contains all required data for the previous full 
year.
    (e) Losing eligibility for small customer status. (1) A customer 
ceases to be a small customer if it:
    (i) Is a utility customer and exceeds total annual energy sales and 
usage of 25 GWh, as averaged over the previous 5 years; or
    (ii) Is no longer an end-use customer.
    (2) Western will work with a customer that loses small customer 
status to develop an appropriate schedule for submitting an IRP or other 
report required under this subpart.



Sec. 905.16  What are the requirements for the minimum investment report alternative?

    (a) Request to submit the minimum investment report. Customers may 
submit a request to prepare a minimum investment report instead of an 
IRP. Minimum investment reports may be submitted by MBAs on behalf of 
the MBA

[[Page 657]]

or its members, and by IRP cooperatives on behalf of its participants. 
Requests to submit minimum investment reports must include data on:
    (1) The source of the minimum investment requirement (number, title, 
date, and jurisdiction of law);
    (2) The initial, annual, and other reporting requirement(s) of the 
mandate, if any; and
    (3) The mandated minimum level of investment or public benefits 
charge for DSM and/or renewable energy.
    (b) Minimum investment requirement. The minimum investment must be 
either:
    (1) A mandatory set percentage of customer gross revenues or other 
specific minimum investment in DSM and/or renewable energy mandated by a 
State, Tribal, or Federal Government with jurisdictional authority; or
    (2) A required public benefits charge, including charges to be 
collected for and spent on DSM; renewable energy; efficiency and 
alternative energy-related research and development; low-income energy 
assistance; and any other applicable public benefits category, mandated 
by a State, Tribal, or Federal Government with jurisdictional authority. 
Participation in a public benefits program requires either a mandatory 
set percentage of customer gross revenues or other specific charges to 
be applied toward the programs as determined by the applicable State, 
Tribal, or Federal authority. The revenues from the public benefits 
charge may be expended directly by the customer, or by another entity on 
behalf of the customer as determined by the applicable State, Tribal, or 
Federal authority.
    (c) Multi-state entities. For those customers with service 
territories lying in more than one State or Tribal jurisdiction, and 
where at least one of the States or Tribal jurisdictions has a mandated 
minimum investment requirement, to meet this alternative customers must 
use the highest requirement from the State or Tribe within the 
customer's service territory and additionally apply it to all members in 
those States or Tribal jurisdictions in which there is no requirement. 
Alternatively, if each State or Tribe has a requirement, customers may 
satisfy Western's requirement by reporting on compliance with each 
applicable minimum investment requirement. Western will work with multi-
state entities to ensure the most effective, and least burdensome, 
compliance mechanism.
    (d) Western's response to minimum investment report requests. 
Western will respond to requests to accept minimum investment reports 
within 30 days of receiving the request. If Western disapproves a 
request to allow use of the minimum investment report, the customer must 
maintain its currently applicable IRP or small customer plan, or submit 
its initial IRP no later than 1 year after the date of the disapproval 
letter. Alternatively, the customer may submit a request for small 
customer plan or EE/RE report status, as appropriate.
    (e) Minimum investment report contents. Reports documenting 
compliance with a minimum level of investment in DSM and/or renewable 
energy must include:
    (1) Customer name, address, phone number, email and Website if 
applicable, and contact person;
    (2) Authority or requirement to undertake a minimum investment, 
including the source of the minimum investment requirement (number, 
title, date, and jurisdiction of law or regulation); and
    (3) A description of the minimum investment, including:
    (i) Minimum percentage or other minimum requirement for DSM and/or 
renewable energy, including any charges to be collected for and spent on 
DSM, renewable energy, efficiency or alternative energy-related research 
and development, low-income energy assistance, and any other applicable 
public benefits categories;
    (ii) Actual or estimated energy and/or capacity savings resulting 
from minimum investments in DSM, if known;
    (iii) Actual or estimated energy and/or capacity resulting from 
minimum investments in renewable energy, if known; and
    (iv) A description of the DSM and/or renewable energy activities to 
be undertaken over the next 2 years as a result of the requirement for 
minimum investment, if known.

[[Page 658]]

    (f) Minimum investment report approval. Western will approve the 
minimum investment report when it meets the requirements in paragraph 
(e) of this section.
    (g) When to submit the minimum investment report. The customer must 
submit the first minimum investment report to the appropriate Western 
Regional Manager within 1 year after Western approves the request to 
accept the minimum investment report. Customers choosing this option 
must maintain IRP or small customer plan compliance with Western's IRP 
regulations in effect before May 1, 2000, including submitting annual 
progress reports or update letters, until submitting the first minimum 
investment report, to ensure there is no gap in complying with section 
114 of EPAct. Customers must submit, in writing, a minimum investment 
report every 5 years.
    (h) Maintaining minimum investment reports. (1) Every year on the 
anniversary of Western's approval of the first minimum investment 
report, customers choosing this option must submit a letter to Western 
verifying that they remain in compliance with the minimum investment 
requirement. The letter must also contain summary information 
identifying annual energy and capacity savings associated with minimum 
investments in DSM, if known, and energy and capacity associated with 
minimum investments in renewable energy, if known. The letter must also 
include a revised description of customer DSM and/or renewable energy 
activities if the description from the minimum investment report has 
changed or expired.
    (2) Western will use the letter for overall program evaluation and 
to ensure customers remain in compliance. Customers may submit letters 
outside of the anniversary date if previously agreed to by Western, and 
if the letter contains all required data for the previous full year. 
Instead of a separate letter, a customer choosing this option may submit 
the State, Tribal, or Federal required annual report documenting the 
minimum investment and associated DSM and/or renewable energy savings 
and/or use, if known.
    (i) Loss of eligibility to submit the minimum investment report. (1) 
A customer ceases to be eligible to submit a minimum investment report 
if:
    (i) A State, Tribal, or Federal mandate no longer applies to the 
customer, or
    (ii) The customer does not comply with the minimum level of 
investment in applicable State, Tribal, or Federal law.
    (2) Western will work with a customer no longer eligible to submit a 
minimum investment report to develop an appropriate schedule to submit 
an IRP or other plan or report required under this subpart.



Sec. 905.17  What are the requirements for the energy efficiency and/or renewable energy report (EE/RE report) alternative?

    (a) Requests to submit an EE/RE report. End-use customers may submit 
a request to prepare an EE/RE report instead of an IRP. Requests to 
submit EE/RE reports must include data on:
    (1) The source of the EE/RE reporting requirement (number, title, 
date, and jurisdiction of law or regulation);
    (2) The initial, annual, and other reporting requirement(s) of the 
report; and
    (3) A summary outline of the EE/RE report's required data or 
components, including any requirements for documenting customer energy 
efficiency and renewable energy activities.
    (b) EE/RE report requirement. The EE/RE report is based on a mandate 
by a State, Tribal, or Federal Government to implement energy efficiency 
and/or renewable energy activities within a specified timeframe, for 
which there is also an associated reporting requirement. The EE/RE 
report may include only electrical resource use and energy efficiency 
and/or renewable energy activities, or may additionally include other 
resource information, such as water and natural gas data. At a minimum, 
the EE/RE report must annually document energy efficiency and/or 
renewable energy activities undertaken by the end-use customer.
    (c) Western's response to EE/RE report requests. Western will 
respond to requests to accept EE/RE reports within 30 days of receiving 
the request. If Western disapproves a request to allow use of the EE/RE 
report, the customer

[[Page 659]]

must maintain its currently applicable IRP or small customer plan, or 
submit its initial IRP no later than 1 year after the date of the 
disapproval letter. Alternatively, the customer may submit a request for 
small customer plan or minimum investment report, as appropriate, within 
30 days after the date of the disapproval letter.
    (d) EE/RE report contents. EE/RE reports must include:
    (1) Customer name, address, phone number, email and Website if 
applicable, and contact person;
    (2) Authority or requirement to complete the EE/RE report, including 
the source of the requirement (number, title, date, and jurisdiction of 
law); and
    (3) A description of the customer's required energy efficiency and/
or renewable energy activities, including:
    (i) Level of investment or expenditure in energy efficiency and/or 
renewable energy, and quantifiable energy savings or use goals, if 
defined by the EE/RE reporting requirement;
    (ii) Annual actual or estimated energy and/or capacity savings, if 
any, associated with energy efficiency and resulting from the EE/RE 
reporting requirement;
    (iii) Actual or estimated energy and/or capacity, if any, associated 
with renewable energy and resulting from the EE/RE reporting 
requirement;
    (iv) A description of the energy efficiency and/or renewable energy 
activities to be undertaken over the next 2 years as a result of the EE/
RE reporting requirement.
    (e) EE/RE report approval. Western will approve the EE/RE report 
when the report meets the requirements in paragraph (d) of this section.
    (f) When to submit the EE/RE report. The customer must submit the 
first EE/RE report to the appropriate Western Regional Manager within 1 
year after Western approves the request to accept the EE/RE report. 
Customers choosing this option must maintain IRP or small customer plan 
compliance with Western's IRP regulations in effect before May 1, 2000, 
including submitting annual progress reports or update letters, until 
submitting the first EE/RE report to ensure there is no gap in complying 
with section 114 of EPAct. Customers must submit, in writing, an EE/RE 
report every 5 years.
    (g) Maintaining EE/RE reports. (1) Every year on the anniversary of 
Western's approval of the first EE/RE report, customers choosing this 
option must submit an annual EE/RE letter to Western. The letter must 
contain summary information identifying customer annual energy and 
capacity savings associated with energy efficiency, if any, and annual 
customer energy and capacity associated with renewable energy, if any. 
The letter must also verify that the customer remains in compliance with 
the EE/RE reporting requirement. Additionally, the letter must include a 
revised description of customer DSM and/or renewable energy activities 
if the description from the EE/RE report has changed or expired. If this 
information is contained in an EE/RE report sent to another authority, 
the customer may submit that report instead of a separate letter.
    (2) Customers may submit annual EE/RE letters outside of the 
anniversary date if previously agreed to by Western if the letter 
contains all required data for the previous full year.
    (h) Loss of eligibility to submit the EE/RE report. (1) A customer 
ceases to be eligible to submit a EE/RE report if:
    (i) The EE/RE reporting requirement no longer applies to the 
customer, or
    (ii) The customer does not comply with the EE/RE reporting 
requirements in applicable State, Tribal, or Federal law.
    (2) Western will work with a customer no longer eligible to submit 
an EE/RE report to develop an appropriate schedule to submit a small 
customer plan or other plan or report required under this subpart.



Sec. 905.18  What are the criteria for Western's approval of submittals?

    (a) Approval criteria. Western will approve all plans and reports 
based upon:
    (1) Whether the plan or report satisfactorily addresses the criteria 
in the regulations in this subpart; and
    (2) The reasonableness of the plan or report given the size, type, 
resource needs, geographic area, and competitive situation of the 
customer.

[[Page 660]]

    (b) Review of resource choices. Western will review resource choices 
using section 114 of EPAct and this subpart. Western will disapprove 
plans and reports if Western deems that they do not meet the 
reasonableness criteria in paragraph (a)(2) of this section or the 
provisions of section 114 of EPAct.
    (c) Accepting plans and reports under other initiatives. If a 
customer or group of customers implements integrated resource planning 
under a program responding to other Federal, Tribal, or State 
initiatives, Western will accept and approve the plan or report as long 
as it substantially complies with the requirements of this subpart.
    (d) Water-based plans and reports. In evaluating a plan or report, 
Western will consider water planning, efficiency improvements, and 
conservation in the same manner it considers energy planning and 
efficiencies. Customers that provide water utility services and 
customers that service irrigation load as part of their overall load may 
include water conservation activities in their plans or reports. To the 
extent practical, customers should convert reported water savings to 
energy values.



Sec. 905.19  How are plans and reports reviewed and approved?

    Western will review all plans and reports submitted under this 
subpart and notify the submitting entity of the plan's or report's 
acceptability within 120 days after receiving it. If a plan or report 
submittal is insufficient, Western will provide a notice of deficiencies 
to the entity that submitted the plan or report. Western, working 
together with the entity, will determine the time allowable for 
resubmitting the plan or report. However, the time allowed for 
resubmittal will not be greater than 9 months after the disapproval 
date, unless otherwise provided by applicable contract language.



Sec. 905.20  When are customers in noncompliance with the regulations in this subpart, and how does Western ensure compliance?

    (a) Good faith effort to comply. If it appears that a customer's 
activities may be inconsistent with the applicable IRP, small customer 
plan, minimum investment report or EE/RE report, Western will notify the 
customer and offer the customer 30 days to provide evidence of its good 
faith effort to comply. If the customer does not correct the specified 
deficiency or submit such evidence, or if Western finds, after receiving 
information from the customer, that a good faith effort has not been 
made, Western will impose a penalty.
    (b) Penalties for noncompliance. Western will impose a penalty on 
long-term firm power customers for failing to submit or resubmit an 
acceptable IRP and action plan, small customer plan, minimum investment 
report or EE/RE report as required by this subpart. Western will also 
impose a penalty when the customer's activities are not consistent with 
the applicable plan or report unless Western finds that a good faith 
effort has been made to comply with the approved plan or report.
    (c) Written notification of penalty. Western will provide written 
notice of a penalty to the customer, and to the MBA or IRP cooperative 
when applicable. The notice will specify the reasons for the penalty.
    (d) Penalty options. (1) Beginning with the first full billing 
period following the notice specified in paragraph (c) of this section, 
Western will impose a surcharge of 10 percent of the monthly power 
charges until the deficiency specified in the notice is cured, or until 
12 months pass. However, Western will not immediately impose a penalty 
if the customer or its MBA or IRP cooperative requests reconsideration 
by filing a written appeal under Sec. 905.21.
    (2) The surcharge increases to 20 percent for the second 12 months 
and to 30 percent per year thereafter until the deficiency is cured.
    (3) After the first 12 months of the surcharge and instead of 
imposing any further surcharge, Western may impose a penalty that would 
reduce the resource delivered under a customer's long-term firm power 
contract(s) by 10 percent. Western may impose this resource reduction 
either:
    (i) When it appears to be more effective to ensure customer 
compliance, or
    (ii) When such reduction may be more cost-effective for Western.
    (4) The penalty provisions in existing contracts will continue to be 
in effect

[[Page 661]]

and administered and enforced according to applicable contract 
provisions.
    (e) Assessing and ceasing penalties. Western will assess the 
surcharge on the total charges for all power obtained by a customer from 
Western and will not be limited to surcharges on only firm power sales. 
When a customer resolves the deficiencies, Western will cease imposing 
the penalty, beginning with the first full billing period after 
compliance is achieved.
    (f) Penalties on MBAs and IRP cooperatives. In situations involving 
a plan or report submitted by an MBA on behalf of its members where a 
single member does not comply, Western will impose a penalty upon the 
MBA on a pro rata basis in proportion to that member's share of the 
total MBA's power received from Western. In situations involving 
noncompliance by a participant of an IRP cooperative, Western will 
impose any applicable penalty directly upon that participant if it has a 
firm power contract with Western. If the IRP cooperative participant 
does not have a firm power contract with Western, then Western will 
impose a penalty upon the participant's MBA on a pro rata basis in 
proportion to that participant's share of the total MBA's power received 
from Western.



Sec. 905.21  What is the administrative appeal process?

    (a) Filing written appeals with Western. If a customer disagrees 
with Western's decision on the acceptability of its IRP, small customer 
plan, minimum investment report or EE/RE report submittal, its 
compliance with an approved plan or report, or any other compliance 
issue, the customer may request reconsideration by filing a written 
appeal with the appropriate Regional Manager. Customers may submit 
appeals any time such disagreements occur and should be specific as to 
the nature of the issue, the reasons for the disagreement, and any other 
pertinent facts the customer believes should be brought to Western's 
attention. The Regional Manager will respond within 45 days of receiving 
the appeal. If resolution is not achieved at the Regional Office level, 
the customer may appeal to the Administrator, who will respond within 30 
days of receiving the appeal.
    (b) Alternative dispute resolution. Upon request, Western will agree 
to use mutually agreeable alternative dispute resolution procedures, to 
the extent allowed by law, to resolve issues or disputes relating to 
compliance with the regulations in this subpart.
    (c) Penalties during appeal. Western will not impose a penalty while 
an appeal process is pending. However, if the appeal is unsuccessful for 
the customer, Western will impose the penalty retroactively from the 
date the penalty would have been assessed if an appeal had not been 
filed.
    (d) Meeting other requirements during appeal process. A written 
appeal or use of alternative dispute resolution procedures does not 
suspend other reporting and compliance requirements.



Sec. 905.22  How does Western periodically evaluate customer actions?

    (a) Periodic review of customer actions. Western will periodically 
evaluate customer actions to determine whether they are consistent with 
the approved IRP or minimum investment report. Small customer plans and 
EE/RE reports are not subject to this periodic review.
    (b) Reviewing representative samples of plans and reports. Western 
will periodically review a representative sample of IRPs and minimum 
investment reports, and the customer's implementation of the applicable 
plan or report from each of Western's Regions. The samples will reflect 
the diverse characteristics and circumstances of the customers that 
purchase power from Western. These reviews will be in addition to, and 
separate and apart from, the review of initial and updated IRPs and 
minimum investment reports to ensure compliance with this subpart.
    (c) Scope of periodic reviews. Periodic reviews may consist of any 
combination of review of the customer's annual IRP progress reports, 
minimum investment letters, telephone interviews, or on-site visits. 
Western will document these periodic reviews and may report on the 
results of the reviews in Western's annual report.

[[Page 662]]



Sec. 905.23  What are the opportunities for using the Freedom of Information Act to request plan and report data?

    IRPs, small customer plans, minimum investment reports and EE/RE 
reports and associated data submitted to Western are subject to the 
Freedom of Information Act (FOIA) and may be made available to the 
public upon request. IRPs must be posted on a customer's publicly 
available Web site or on Western's Web site. Customers posting their 
IRPs on their own Web site must notify Western of this decision when 
they submit their IRP. A hotlink on Western's Web site to IRPs posted on 
customer Web sites gives interested parties ready access to those IRPs. 
Western will post on its Web site the IRPs of customers that do not post 
on their own Web sites. Prior to posting, Western will provide the 
customer the opportunity to submit its views on whether information 
contained in the IRP is exempt from the FOIA's mandatory public 
disclosure requirements. Customers may request confidential treatment of 
all or part of a submitted document consistent with FOIA exemptions. 
Western will determine whether particular information is exempt from 
public access. Western will not disclose to the public information it 
has determined to be exempt, recognizing that certain competition-
related customer information may be proprietary.

[73 FR 35062, June 20, 2008]



Sec. 905.24  Will Western conduct reviews of this program?

    Yes, Western may periodically initiate a public process to review 
the regulations in this subpart to determine whether they should be 
revised to reflect changes in technology, needs, or other developments.



                  Subpart C_Power Marketing Initiative



Sec. 905.30  Purpose and applicability.

    (a) The Power Marketing Initiative (PMI) provides a framework for 
marketing Western's long-term firm hydroelectric resources. For covered 
projects, Western will make a major portion of the resources currently 
under contract available to existing long-term firm power customers for 
a period of time beyond the expiration date of their current contracts.
    (b) The Western projects covered by this subpart are the Pick-Sloan 
Missouri Basin Program--Eastern Division and the Loveland Area Projects 
(LAP). The PMI applies to covered projects to the extent it is 
consistent with other contractual and legal rights, and subject to any 
applicable project-specific environmental requirements.



Sec. 905.31  Term.

    Western will extend resource commitments for 20 years from the date 
existing contracts expire to existing customers with long-term firm 
power contracts from projects identified in section 905.30(b).



Sec. 905.32  Resource extensions and resource pool size.

    (a) Western will extend a project-specific percentage of the 
marketable resource, determined to be available at the time future 
resource extensions begin, to existing customers with long-term firm 
power contracts. The remaining unextended power will be used to 
establish project-specific resource pools. An initial level of 96 
percent of the marketable resource will be extended for the Pick-Sloan 
Missouri Basin Program--Eastern Division and the Loveland Area Projects.
    (b) At two 5-year intervals after the effective date of the 
extension to existing customers, Western shall create a project-specific 
resource pool increment of up to an additional 1 percent of the long-
term marketable resource under contract at the time. The size of the 
additional resource pool increment shall be determined by Western based 
on consideration of the actual fair-share needs of eligible new 
customers and other appropriate purposes.
    (c) The initial pool percentages shall be applied to the marketable 
resource determined to be available at the time future resource 
extensions begin. Subsequent percentages shall be applied to the 
resource under contract at the time.
    (d) The additional resource pool increments shall be established by 
pro rata withdrawals, on 2 years' notice,

[[Page 663]]

from then-existing customers. Withdrawals could be mitigated or delayed 
if good water conditions exist.
    (e) Once the extensions for existing customers and allocations to 
new customers from the resource pool have been made, additional power 
resources may become available for various reasons. Any additional 
available resources will be used as follows:
    (1) If power is reserved for new customers but not allocated, or 
resources are offered but not placed under contract, this power will be 
offered on a pro rata basis to customers that contributed to the 
resource pool through application of the extension formula in Sec. 
905.33.
    (2) If power resources become available as a result of the 
enhancement of existing generation, project-use load efficiency 
upgrades, the development of new resources, or resources turned back to 
Western, Western may elect to use this power to reduce the need to 
acquire firming resources, retain the power for operational flexibility, 
sell these resources on a short-term basis, or allocate the power.
    (3) If resources become available due to imposition of penalties 
pursuant to Sec. 905.17, Western may make such resources available 
within the marketing area to existing customers that are in compliance 
with subpart B, subject to withdrawal.



Sec. 905.33  Extension formula.

    (a) The amount of power to be extended to an existing customer shall 
be determined according to this formula:
    Customer Contract Rate of Delivery (CROD) today/total project CROD 
under contract today x project-specific percentage x marketable resource 
determined to be available at the time future resource extensions begin 
= CROD extended.
    (b) Where contract rates of delivery vary by season, the formula 
shall be used on a seasonal basis to determine the extended power 
resource. A similar pro rata approach shall be used for energy 
extensions.
    (c) Determination of the amount of resource available after existing 
contracts expire, if significantly different from existing resource 
commitments, shall take place only after an appropriate public process.
    (d) The formula set forth in paragraph (a) of this section also 
should be used to determine the amounts of firm power subject to 
withdrawal at 5-year intervals after the effective date of the extension 
to existing customers, except that the percentage used would be up to 1 
percent for each of the two withdrawal opportunities, and the formula 
would use the customer CROD, project CROD and the resource under 
contract at the time.



Sec. 905.34  Adjustment provisions.

    Western reserves the right to adjust marketable resources committed 
to all customers with long-term firm power contracts only as required to 
respond to changes in hydrology and river operations, except as 
otherwise expressly provided in these regulations. Under contracts that 
extend resources under this PMI, existing customers shall be given at 
least 5 years' notice before adjustments are made. New customers may 
receive less notice. The earliest that any notice under this section 
shall become effective is the date that existing contractual commitments 
expire. Any adjustment shall only take place after an appropriate public 
process. Withdrawals to serve project use and other purposes provided 
for by contract shall continue to take place based on existing contract/
marketing criteria principles.



Sec. 905.35  New customer eligibility.

    (a) Allocations to new customers from the project-specific resource 
pools established under Sec. 905.32 shall be determined through 
separate public processes in each project's marketing area. New 
customers receiving an allocation must execute a long-term firm power 
contract to receive the allocated power and are required to comply with 
the IRP requirements in this part. Contracts with new customers shall 
expire on the same date as firm power contracts with all other customers 
of a project.
    (b) To be eligible for an allocation, a potential new customer must 
be a preference entity, as defined in Reclamation law, within the 
currently established marketing area for a project.

[[Page 664]]

    (c) Entities that desire to purchase power from Western for resale 
to consumers, including municipalities, cooperatives, public utility 
districts and public power districts, must have utility status. Native 
American tribes are not subject to this requirement. Utility status 
means that the entity has responsibility to meet load growth, has a 
distribution system, and is ready, willing, and able to purchase power 
from Western on a wholesale basis for resale to retail consumers. To be 
eligible to apply for power available from a project's initial resource 
pool, those entities that desire to purchase Western power for resale to 
consumers must have attained utility status by December 31, 1996, for 
the Pick-Sloan Missouri Basin Program--Eastern Division, and by 
September 30, 2000, for the Loveland Area Projects. To be eligible to 
apply for power from subsequent resource pool increments, these entities 
must have attained utility status no later than 3 years prior to 
availability of the incremental addition to the resource pool. Deadlines 
for attaining utility status for other projects will be established at a 
later date.



Sec. 905.36  Marketing criteria.

    Western shall retain applicable provisions of existing marketing 
criteria for projects where resource commitments are extended beyond the 
current expiration date of long-term firm power sales contracts. Western 
must retain important marketing plan provisions such as classes of 
service, marketing area, and points of delivery, to the extent that 
these provisions are consistent with the PMI. The PMI, eligibility and 
allocation criteria for potential new customers, retained or amended 
provisions of existing marketing criteria, the project-specific resource 
definition, and the size of a project-specific resource pool shall 
constitute the future marketing plan for each project.



Sec. 905.37  Process.

    Modified contractual language shall be required to place resource 
extensions under contract. Resource extensions and allocations to new 
customers from the initial resource pool will take effect when existing 
contracts expire. These dates are December 31, 2000, for the Pick-Sloan 
Missouri Basin Program--Eastern Division and September 30, 2004, for the 
Loveland Area Projects. For the Pick-Sloan Missouri Basin Program--
Eastern Division, Western will offer contracts to existing customers for 
resource extensions no sooner than the effective date of the final 
regulations. For the Loveland Area Projects, existing contracts provide 
for potential adjustments to marketable resources in 1999. No contracts 
will be offered to existing customers for post-2004 Loveland Area 
Projects resources until the analysis of potential resource adjustments 
in 1999 has been completed and any adjustments are implemented. Existing 
power sales contracts require that this analysis be completed by 1996.



                        Subpart D_Energy Services



Sec. 905.40  Technical assistance.

    Western shall establish a program that provides technical assistance 
to customers to conduct integrated resource planning, implement 
applicable IRPs and small customer plans, and otherwise comply with the 
requirements of these regulations.



PART 950_STANDBY SUPPORT FOR CERTAIN NUCLEAR PLANT DELAYS--Table of Contents



                      Subpart A_General Provisions

Sec.
950.1 Purpose.
950.2 Scope and applicability.
950.3 Definitions.

               Subpart B_Standby Support Contract Process

950.10 Conditional agreement.
950.11 Terms and conditions of the Conditional Agreement.
950.12 Standby Support Contract Conditions.
950.13 Standby Support Contract: General provisions.
950.14 Standby Support Contract: Covered events, exclusions, covered 
          delay and covered cost provisions.

                 Subpart C_Claims Administration Process

950.20 General provisions.
950.21 Notification of covered event.
950.22 Covered event determination.

[[Page 665]]

950.23 Claims process for payment of covered costs.
950.24 Claims determination for covered costs.
950.25 Calculation of covered costs.
950.26 Adjustments to claim for payment of covered costs.
950.27 Conditions for payment of covered costs.
950.28 Payment of covered costs.

                  Subpart D_Dispute Resolution Process

950.30 General.
950.31 Covered event dispute resolution.
950.32 Final determination on covered events.
950.33 Covered costs dispute resolution.
950.34 Final claim determination.
950.35 Payment of final claim determination.
950.36 Other contract matters in dispute.
950.37 Final agreement or final decision.

         Subpart E_Audit and Investigations and Other Provisions

950.40 General.
950.41 Monitoring/Auditing.
950.42 Disclosure.

    Authority: 42 U.S.C. 2201, 42 U.S.C. 7101 et seq., and 42 U.S.C. 
16014

    Source: 71 FR 46325, Aug. 11, 2006, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 950.1  Purpose.

    The purpose of this part is to facilitate the construction and full 
power operation of new advanced nuclear facilities by providing risk 
insurance for certain delays attributed to the Nuclear Regulatory 
Commission regulatory process or to litigation.



Sec. 950.2  Scope and applicability.

    This part sets forth the policies and procedures for the award and 
administration of Standby Support Contracts between the Department and 
sponsors of new advanced nuclear facilities.



Sec. 950.3  Definitions.

    For the purposes of this part:
    Act means the Energy Policy Act of 2005.
    Advanced nuclear facility means any nuclear facility the reactor 
design for which is approved after December 31, 1993, by the Nuclear 
Regulatory Commission (and such design or a substantially similar design 
of comparable capacity was not approved on or before that date).
    Available indemnification means $500 million with respect to the 
initial two reactors and $250 million with respect to the subsequent 
four reactors.
    Claims administrator means the official in the Department of Energy 
responsible for the administration of the Standby Support Contracts, 
including the responsibility to approve or disapprove claims submitted 
by a sponsor for payment of covered costs under the Standby Support 
Contract.
    Combined license means a combined construction and operating license 
(COL) for an advanced nuclear facility issued by the Commission.
    Commencement of construction means the point in time when a sponsor 
initiates the pouring of safety-related concrete for the reactor 
building.
    Commission means the Nuclear Regulatory Commission (NRC).
    Conditional Agreement means a contractual agreement between the 
Department and a sponsor under which the Department will execute a 
Standby Support Contract with the sponsor if and only if the sponsor is 
one of the first six sponsors to satisfy the conditions precedent to 
execution of a Standby Support Contract, and if funding and other 
applicable contractual, statutory and regulatory requirements are 
satisfied.
    Construction means the construction activities related to the 
advanced nuclear facility encompassed in the time period after 
commencement of construction and before the initiation of fuel load for 
the advanced nuclear facility.
    Covered cost means:
    (1) Principal or interest on any debt obligation financing an 
advanced nuclear facility (but excluding charges due to a borrower's 
failure to meet a debt obligation unrelated to the delay); and
    (2) Incremental costs that are incurred as a result of covered 
delay.
    Covered delay means a delay in the attainment of full power 
operation of an advanced nuclear facility caused by a covered event, as 
defined by this section.

[[Page 666]]

    Covered event means an event that may result in a covered delay due 
to:
    (1) The failure of the Commission to comply with schedules for 
review and approval of inspections, tests, analyses and acceptance 
criteria established under the combined license;
    (2) The conduct of pre-operational hearings by the Commission for 
the advanced nuclear facility; or
    (3) Litigation that delays the commencement of full power operations 
of the advanced nuclear facility.
    Department means the United States Department of Energy.
    Full power operation means the point at which the sponsor first 
synchronizes the advanced nuclear facility to the electrical grid.
    Grant account means the account established by the Secretary that 
receives appropriations or non-Federal funds in an amount sufficient to 
cover the amount of incremental costs for which indemnification is 
available under a Standby Support Contract.
    Incremental costs means the incremental difference between:
    (1) The fair market price of power purchased to meet the contractual 
supply agreements that would have been met by the advanced nuclear 
facility but for a covered delay; and
    (2) The contractual price of power from the advanced nuclear 
facility subject to the delay.
    Initial two reactors means the first two reactors covered by Standby 
Support Contracts that receive a combined license and commence 
construction.
    Litigation means adjudication in Federal, State, local or tribal 
courts, including appeals of Commission decisions related to the 
combined license process to such courts, but excluding administrative 
litigation that occurs at the Commission related to the combined license 
process.
    Loan cost means the net present value of the estimated cash flows 
of:
    (1) Payments by the government to cover defaults and delinquencies, 
interest subsidies, or other payments; and
    (2) Payments to the government including origination and other fees, 
penalties and recoveries, as outlined under the Federal Credit Reform 
Act of 1990.
    Pre-operational hearing means any Commission hearing that is 
provided for in 10 CFR part 52, after issuance of the combined license.
    Program account means the account established by the Secretary that 
receives appropriations or loan guarantee fees in an amount sufficient 
to cover the loan costs.
    Program administrator means the Department official authorized by 
the Secretary to represent the Department in the administration and 
management of the Standby Support Program, including negotiating with 
and entering into a Conditional Agreement or a Standby Support Contract 
with a sponsor.
    Related party means the sponsor's parent company, a subsidiary of 
the sponsor, or a subsidiary of the parent company of the sponsor.
    Secretary means the Secretary of Energy or a designee.
    Sponsor means a person whose application for a combined license for 
an advanced nuclear facility has been docketed by the Commission.
    Standby Support Contract means the contract that, when entered into 
by a sponsor and the Program Administrator pursuant to section 638 of 
the Energy Policy Act of 2005 after satisfaction of the conditions in 
Sec. 950.12 and any other applicable contractual, statutory and 
regulatory requirements, establishes the obligation of the Department to 
compensate covered costs in the event of a covered delay subject to the 
terms and conditions specified in the Standby Support Contract.
    Standby Support Program means the program established by section 638 
of the Act as administered by the Department of Energy.
    Subsequent four reactors means the next four reactors covered by 
Standby Support Contracts, after the initial two reactors, which receive 
a combined license and commence construction.
    System-level construction schedule means an electronic critical path 
method schedule identifying the dates and durations of plant systems 
installation (but excluding details of components or parts 
installation), sequences and interrelationships, and milestone dates 
from commencement of construction through full power operation, using 
software acceptable to the Department.

[[Page 667]]



               Subpart B_Standby Support Contract Process



Sec. 950.10  Conditional agreement.

    (a) Purpose. The Department and a sponsor may enter into a 
Conditional Agreement. The Department will enter into a Standby Support 
Contract with the first six sponsors to satisfy the specified conditions 
precedent for a Standby Support Contract if and only if all funding and 
other contractual, statutory and regulatory requirements have been 
satisfied.
    (b) Eligibility. A sponsor is eligible to enter into a Conditional 
Agreement with the Program Administrator after the sponsor has submitted 
to the Department the following information but before the sponsor 
receives approval of the combined license application from the 
Commission:
    (1) An electronic copy of the combined license application docketed 
by the Commission pursuant to 10 CFR part 52, and if applicable, an 
electronic copy of the design certification or early site permit, or 
environmental report referenced or included with the sponsor's combined 
license application;
    (2) A summary schedule identifying the projected dates of 
construction, testing, and full power operation;
    (3) A detailed business plan that includes intended financing for 
the project including the credit structure and all sources and uses of 
funds for the project, the most recent private credit rating or other 
similar credit analysis for project related covered financing, and the 
projected cash flows for all debt obligations of the advanced nuclear 
facility which would be covered under the Standby Support Contract;
    (4) The sponsor's estimate of the amount and timing of the Standby 
Support payments for debt service under covered delays; and
    (5) The estimated dollar amount to be allocated to the sponsor's 
covered costs for principal or interest on the debt obligation of the 
advanced nuclear facility and for incremental costs, including whether 
these amounts would be different if the advanced nuclear facility is one 
of the initial two reactors or one of the subsequent four reactors.
    (c) The Program Administrator shall enter into a Conditional 
Agreement with a sponsor upon a determination by the Department that the 
sponsor is eligible for a Conditional Agreement, the information 
provided by the sponsor under paragraph (b) of this section is accurate 
and complete, and the Conditional Agreement is consistent with 
applicable laws and regulations.

    Effective Date Note: At 71 FR 46325, Aug. 11, 2006, Sec. 950.10 was 
revised, effective Sept. 11, 2006. Paragraph (b) of this text contains 
information collection and recordkeeping requirements and will not 
become effective until approval has been given by the Office of 
Management and Budget.



Sec. 950.11  Terms and conditions of the Conditional Agreement.

    (a) General. Each Conditional Agreement shall include a provision 
specifying that the Program Administrator and the sponsor will enter 
into a Standby Support Contract provided that the sponsor is one of the 
first six sponsors to fulfill the conditions precedent specified in 
Sec. 950.12, subject to certain funding requirements and limitations 
specified in Sec. 950.12 and any other applicable contractual, 
statutory and regulatory requirements.
    (b) Allocation of Coverage. Each Conditional Agreement shall include 
a provision specifying the amount of coverage to be allocated under the 
Standby Support Contract to cover principal or interest costs and to 
cover incremental costs, including a provision on whether the allocation 
shall be different if the advanced nuclear facility is one of the 
initial two reactors or one of the subsequent four reactors, subject to 
paragraphs (c) and (d) of this section. A sponsor may elect to allocate 
100 percent of the coverage to either the Program Account or the Grant 
Account.
    (c) Funding. Each Conditional Agreement shall contain a provision 
that the Program Account or Grant Account shall be funded in advance of 
execution of the Standby Support Contract and in the following manner, 
subject to the conditions of paragraphs (d) and (e) of this section. 
Under no circumstances will the amount of the coverage for payments of 
principal or interest under a Standby Support Contract exceed 80

[[Page 668]]

percent of the total of the financing guaranteed under that Contract.
    (1) The Program Account shall receive funds appropriated to the 
Department, loan guarantee fees, or a combination of appropriated funds 
and loan guarantee fees that are in an amount equal to the loan costs 
associated with the amount of principal or interest covered by the 
available indemnification. Loan costs may not be paid from the proceeds 
of debt guaranteed or funded by the Federal government. The parties 
shall specify in the Conditional Agreement the anticipated amount or 
anticipated percentage of the total funding in the Program Account to be 
contributed by appropriated funds to the Department, by the sponsor, by 
a non-federal source, or by a combination of these funding sources. 
Covered costs paid through the Program Account are backed by the full 
faith and credit of the United States.
    (2) The Grant Account shall receive funds appropriated to the 
Department, funds from a sponsor, funds from a non-Federal source, or a 
combination of appropriated funds and funds from the sponsor or other 
non-Federal source, in an amount equal to the incremental costs. The 
parties shall specify in the Conditional Agreement the anticipated 
amount or anticipated percentage of the total funding in the Grant 
Account to be contributed by appropriated funds to the Department, by 
the sponsor, by a non-Federal source, or by a combination of these 
funding sources.
    (d) Reconciliation. Each Conditional Agreement shall include a 
provision that the sponsor shall provide no later than ninety (90) days 
prior to execution of a Standby Support Contract sufficient information 
for the Program Administrator to recalculate the loan costs and the 
incremental costs associated with the advanced nuclear facility, taking 
into account whether the sponsor's advanced nuclear facility is one of 
the initial two reactors or the subsequent four reactors.
    (e) Limitations. Each Conditional Agreement shall contain a 
provision that limits the Department's contribution of Federal funding 
to the Program Account or the Grant Account to only those amounts, if 
any, that are appropriated to the Department in advance of the Standby 
Support Contract for the purpose of funding the Program Account or Grant 
Account. In the event the amount of appropriated funds to the Department 
for deposit in the Program Account or Grant Account is not sufficient to 
result in an amount equal to the full amount of the loan costs or 
incremental costs resulting from the allocation of coverage under the 
Conditional Agreement pursuant to 950.11(b), the sponsor shall no later 
than sixty (60) days prior to execution of the Standby Support Contract:
    (1) Notify the Department that it shall not execute a Standby 
Support Contract; or
    (2) Notify the Department that it shall provide the anticipated 
contributions to the Program Account or Grant Account as specified in 
the Conditional Agreement pursuant to 950.11(c)(1). The sponsor shall 
have the option to provide additional funds to the Program Account or 
Grant Account up to the amount equal to the full amount of loan costs or 
incremental costs. In the event the sponsor does not provide sufficient 
additional funds to fund the Program Account or the Grant Account in an 
amount equal to the full amount of loan costs or incremental costs, then 
the amounts of coverage available under the Standby Support Contract 
shall be reduced to reflect the amounts deposited in the Program Account 
or Grant Account. If the sponsor elects less than the full amount of 
coverage available under the law, then the sponsor shall not have 
recourse against, and the Department is not liable for, any claims for 
an amount of covered costs in excess of that reduced amount of coverage 
or the amount deposited in the Grant Account upon execution of the 
Standby Support Contract, notwithstanding any other provision of law.
    (f) Termination of Conditional Agreements. Each Conditional 
Agreement shall include a provision that the Conditional Agreement 
remains in effect until such time as:
    (1) The sponsor enters into a Standby Support Contract with the 
Program Administrator;
    (2) The sponsor has commenced construction on an advanced nuclear 
facility and has not entered into a Standby

[[Page 669]]

Support Contract with the Program Administrator within thirty (30) days 
after commencement of construction;
    (3) The sponsor notifies the Program Administrator in writing that 
it wishes to terminate the Conditional Agreement, thereby extinguishing 
any rights or obligations it may have under the Conditional Agreement;
    (4) The Program Administrator has entered into Standby Support 
Contracts that cover three different reactor designs, and the 
Conditional Agreement is for an advanced nuclear facility of a different 
reactor design than those covered under existing Standby Support 
Contracts; or
    (5) The Program Administrator has entered into six Standby Support 
Contracts.



Sec. 950.12  Standby Support Contract Conditions.

    (a) Conditions Precedent. If Program Administrator has not entered 
into six Standby Support Contracts, the Program Administrator shall 
enter into a Standby Support Contract with the sponsor, consistent with 
applicable statutes and regulations and subject to the conditions set 
forth in paragraphs (b) and (c) of this section, upon a determination by 
the Department that all the conditions precedent to a Standby Support 
Contract have been fulfilled, including that the sponsor has:
    (1) A Conditional Agreement with the Department, consistent with 
this subpart;
    (2) A combined license issued by the Commission;
    (3) Documentation that it possesses all Federal, State, or local 
permits required by law to commence construction;
    (4) Documentation that it has commenced construction of the advanced 
nuclear facility;
    (5) Documented coverage of insurance required for the project by the 
Commission and lenders;
    (6) Paid any required fees into the Program Account and the Grant 
Account, as set forth in the Conditional Agreement and paragraph (b) of 
this section;
    (7) Provided to the Program Administrator, no later than ninety (90) 
days prior to execution of the contract, the sponsor's detailed schedule 
for completing the inspections, tests, analyses and acceptance criteria 
in the combined license and informing the Commission that the acceptance 
criteria have been met; and the sponsor's proposed schedule for review 
of such inspections, tests, analyses and acceptance criteria by the 
Commission, consistent with Sec. 950.14(a) of this part and which the 
Department will evaluate and approve; and
    (8) Provided to the Program Administrator, no later than ninety (90) 
days prior to execution of the contract, a detailed systems-level 
construction schedule that includes a schedule identifying projected 
dates of construction, testing and full power operation of the advanced 
nuclear facility.
    (9) Provided to the Program Administrator, no later than ninety (90) 
days prior to the execution of the contract, a detailed and up-to-date 
plan of financing for the project including the credit structure and all 
sources and uses of funds for the project, and the projected cash flows 
for all debt obligations of the advanced nuclear facility.
    (b) Funding. No later than thirty (30) days prior to execution of 
the contract, and consistent with section 638(b)(2)(C), funds in amounts 
determined pursuant to Sec. 950.11(e) have been made available and 
shall be deposited in the Program Account or the Grant Account 
respectively.
    (c) Limitations. The Department shall not enter into a Standby 
Support Contract, if:
    (1) Program Account. The contract provides coverage of principal or 
interest costs for which the loan costs exceed the amount of funds 
deposited in the Program Account; or
    (2) Grant Account. The contract provides coverage of incremental 
costs that exceed the amount of funds deposited in the Grant Account.
    (d) Cancellation by Abandonment. (1) If the Program Administrator 
cancels a Standby Support Contract for abandonment pursuant to 
950.13(f)(1), the Program Administrator may re-execute a Standby Support 
Contract with a sponsor other than a sponsor or that sponsor's assignee 
with whom the Department had a cancelled contract, provided that such 
replacement Standby

[[Page 670]]

Support Contract is executed in accordance with the terms and conditions 
set forth in this part, and shall be deemed to be one of the subsequent 
four reactors under this part.
    (2) Not more than two Standby Support Contracts may be re-executed 
in situations involving abandonment and cancellation by the Program 
Administrator.

    Effective Date Note: At 71 FR 46325, Aug. 11, 2006, Sec. 950.12 was 
revised, effective Sept. 11, 2006. Paragraph (a) of this text contains 
information collection and recordkeeping requirements and will not 
become effective until approval has been given by the Office of 
Management and Budget.



Sec. 950.13  Standby Support Contract: General provisions.

    (a) Purpose. Each Standby Support Contract shall include a provision 
setting forth an agreement between the parties in which the Department 
shall provide compensation for covered costs incurred by a sponsor for 
covered events that result in a covered delay of full power operation of 
an advanced nuclear facility.
    (b) Covered facility. Each Standby Support Contract shall include a 
provision of coverage only for an advanced nuclear facility which is not 
a federal entity. Each Standby Support Contract shall also include a 
provision to specify the advanced nuclear facility to be covered, along 
with the reactor design, and the location of the advanced nuclear 
facility.
    (c) Sponsor contribution. Each Standby Support Contract shall 
include a provision to specify the amount that a sponsor has contributed 
to funding each type of account.
    (d) Maximum compensation. Each Standby Support Contract shall 
include a provision to specify that the Program Administrator shall not 
pay compensation under the contract:
    (1) In an aggregate amount that exceeds the amount of coverage up to 
$500 million each for the initial two reactors or up to $250 million 
each for the subsequent four reactors;
    (2) In an amount for principal or interest costs for which the loan 
costs exceed the amount deposited in the Program Account; and
    (3) In an amount for incremental costs that exceed the amount 
deposited in the Grant Account.
    (e) Term. Each Standby Support Contract shall include a provision to 
specify the date at which the contract commences as well as the term of 
the contract. The contract shall enter into force on the date it has 
been signed by both the sponsor and the Program Administrator. Subject 
to the cancellation provisions set forth in paragraph (f) of this 
section, the contract shall terminate when all claims have been paid up 
to the full amounts to be covered under the Standby Support Contract, or 
all disputes involving claims under the contract have been resolved in 
accordance with subpart D of this part.
    (f) Cancellation provisions. Each Standby Support Contract shall 
provide for cancellation in the following circumstances:
    (1) If the sponsor abandons construction, and the abandonment is not 
caused by a covered event or force majeure, the Program Administrator 
may cancel the Standby Support Contract by giving written notice thereof 
to the sponsor and the parties have no further rights or obligations 
under the contract.
    (2) If the sponsor does not require continuing coverage under the 
contract, the sponsor may cancel the Standby Support Contract by giving 
written notice thereof to the Program Administrator and the parties have 
no further rights or obligations under the contract.
    (3) For such other cause as agreed to by the parties.
    (g) Termination by sponsor. Each Standby Support Contract shall 
include a provision that prohibits a sponsor or any related party from 
executing another Standby Support Contract, if the sponsor elects to 
terminate its original existing Standby Support Contract, unless the 
sponsor has cancelled or terminated construction of the reactor covered 
by its original existing Standby Support Contract.
    (h) Assignment. Each Standby Support Contract shall include a 
provision on assignment of a sponsor's rights and obligations under the 
contract and assignment of payment of covered costs.

[[Page 671]]

The Program Administrator shall permit the assignment of payment of 
covered costs with prior written notice to the Department. The Program 
Administrator shall permit assignment of rights and obligations under 
the contract with the Department's prior approval. The sponsor may not 
assign its rights and obligations under the contract without the prior 
written approval of the Program Administrator and any attempt to do so 
is null and void.
    (i) Claims administration. Each Standby Support Contract shall 
include a provision to specify a mechanism for administering claims 
pursuant to the procedures set forth in subpart C of this part.
    (j) Dispute resolution. Consistent with the Administrative Dispute 
Resolution Act, each Standby Support Contract shall include a provision 
to specify a mechanism for resolving disputes pursuant to the procedures 
set forth in subpart D of this part.
    (k) Re-estimation. Consistent with the Federal Credit Reform Act 
(FCRA) of 1990, the sponsor shall provide all needed documentation as 
required in Sec. 950.12 to allow the Department to annually re-estimate 
the loan cost needed in the financing account as that term is used in 2 
U.S.C. 661a(7) and funded by the Program Account. ``The sponsor is 
neither responsible for any increase in loan costs, nor entitled to 
recoup fees for any decrease in loan costs, resulting from the re-
estimation conducted pursuant to FCRA.



Sec. 950.14  Standby Support Contract: Covered events, exclusions, covered delay and covered cost provisions.

    (a) Covered events. Subject to the exclusions set forth in paragraph 
(b) of this section, each Standby Support Contract shall include a 
provision setting forth the type of events that are covered events under 
the contract. The type of events shall include:
    (1) The Commission's failure to review the sponsor's inspections, 
tests, analyses and acceptance criteria in accordance with the 
Commission's rules, guidance, audit procedures, or formal opinions, in 
the case where the Commission has in place any rules, guidance, audit 
procedures or formal opinions setting schedules for its review of 
inspections, tests, analyses, and acceptance criteria under a combined 
license or the sponsor's combined license;
    (2) The Commission's failure to review the sponsor's inspections, 
tests, analyses, and acceptance criteria on the schedule for such review 
proposed by the sponsor, subject to the Department's review and approval 
of such schedule, including review of any informal guidance or opinion 
of the Commission that has been provided to the sponsor or the 
Department, in the case where the Commission has not provided any rules, 
guidance, audit procedures or formal Commission opinions setting 
schedules for review of inspections, tests, analyses and acceptance 
criteria under a combined license, or under the sponsor's combined 
license;
    (3) The conduct of pre-operational Commission hearings, that are 
provided for in 10 CFR part 52, after issuance of the combined license; 
and
    (4) Litigation in State, Federal, local, or tribal courts, including 
appeals of Commission decisions related to an application for a combined 
license to such courts., and excluding administrative litigation that 
occurs at the Commission related to the combined license.
    (b) Exclusions. Each Standby Support Contract shall include a 
provision setting forth the exclusions from covered costs under the 
contract, and for which any associated delay in the attainment of full 
power operations is not a covered delay. The exclusions are:
    (1) The failure of the sponsor to take any action required by law, 
regulation, or ordinance, including but not limited to the following 
types of events:
    (i) The sponsor's failure to comply with environmental laws or 
regulations such as those related to pollution abatement or human health 
and the environment;
    (ii) The sponsor's re-performance of any inspections, tests, 
analyses or re-demonstration that acceptance criteria have been met due 
to Commission non-acceptance of the sponsor's submitted results of 
inspections, tests, analyses, and demonstration of acceptance criteria;

[[Page 672]]

    (iii) Delays attributable to the sponsor's actions to redress any 
deficiencies in inspections, tests, analyses or acceptance criteria as a 
result of a Commission disapproval of fuel loading; or
    (2) Events within the control of the sponsor, including but not 
limited to delays attributable to the following types of events:
    (i) Project planning and construction problems;
    (ii) Labor-management disputes;
    (iii) The sponsor's failure to perform inspections, tests, analyses 
and to demonstrate acceptance criteria are met or failure to inform the 
Commission of the successful completion of inspections, tests, analyses 
and demonstration of meeting acceptance criteria in accordance with its 
schedule; or
    (iv) The lack of adequate funding for construction and testing of 
the advanced nuclear facility.
    (3) Normal business risks, including but not limited to the 
following types of events:
    (i) Delays attributable to force majeure events such as a strike or 
the failure of power or other utility services supplied to the location, 
or natural events such as severe weather, earthquake, landslide, 
mudslide, volcanic eruption, other earth movement, or flood;
    (ii) Government action meaning the seizure or destruction of 
property by order of governmental authority;
    (iii) War or military action;
    (iv) Acts or decisions, including the failure to act or decide, of 
any government body (excluding those acts or decisions or failure to act 
or decide by the Commission that are covered events);
    (v) Supplier or subcontractor delays in performance;
    (vi) Litigation, whether initiated by the sponsor or another party, 
that is not a covered event under paragraph (a) of this section; or
    (vii) Failure to timely obtain regulatory permits or approvals that 
are not covered events under paragraph (a) of this section.
    (c) Covered delay. Each Standby Support Contract shall include a 
provision for the payment of covered costs, in accordance with the 
procedures in subpart C of this part for the payment of covered costs, 
if a covered event(s) is determined to be the cause of delay in 
attainment of full power operation, provided that:
    (1) Under Standby Support Contracts for the subsequent four 
reactors, covered delay may occur only after the initial 180-day period 
of delay, and
    (2) The sponsor has used due diligence to mitigate, shorten, and 
end, the covered delay and associated costs covered by the Standby 
Support Contract.
    (d) Covered costs. Each Standby Support Contract shall include a 
provision to specify the type of costs for which the Department shall 
provide payment to a sponsor for covered delay in accordance with the 
procedures set forth in subparts C and D of this part. The types of 
costs shall be limited to either or both, dependent upon the terms of 
the contract:
    (1) The principal or interest on which the loan costs for the 
Program Account was calculated; and
    (2) The incremental costs on which funding for the Grant Account was 
calculated.
    (e) ITAAC Schedule. Each Standby Support Contract shall provide for 
adjustments to the ITAAC review schedule when the parties deem 
necessary, in the case where the Commission has not provided any rules, 
guidance, audit procedures or formal Commission opinions setting 
schedules for review of inspections, tests, analyses and acceptance 
criteria under a combined license, upon review and approval by the 
Department and the sponsor. Adjustments to the ITAAC review schedule 
must be in writing, expressly approved by the Department and the 
sponsor, and remain in effective for determining covered events unless 
and until a subsequently issued ITAAC review schedule is approved by the 
parties.



                 Subpart C_Claims Administration Process



Sec. 950.20  General provisions.

    The parties shall include provisions in the Standby Support Contract 
to specify the procedures and conditions set forth in this subpart for 
the submission of claims and the payment of

[[Page 673]]

covered costs under the Standby Support Contract. A sponsor is required 
to establish that there is a covered event, a covered delay and a 
covered cost; the Department is required to establish an exclusion in 
accordance with Sec. 950.14(b).



Sec. 950.21  Notification of covered event.

    (a) A sponsor shall submit in writing to the Claims Administrator a 
notification that a covered event has occurred that has delayed the 
schedule for construction or testing and that may cause covered delay. 
The sponsor shall submit the notification to the Claims Administrator no 
later than thirty (30) days of the end of the covered event and contain 
the following information:
    (1) A description and explanation of the covered event, including 
supporting documentation of the event;
    (2) The duration of the delay in the schedule for construction, 
testing and full power operation, and the schedule for inspections, 
tests, analyses and acceptance criteria, if applicable;
    (3) The sponsor's projection of the duration of covered delay;
    (4) A revised schedule for construction, testing and full power 
operation, including the dates of system level construction or testing 
that had been conducted prior to the event; and
    (5) A revised inspections, tests, analyses, and acceptance criteria 
schedule, if applicable, including the dates of Commission review of 
inspections, tests, analyses, and acceptance criteria that had been 
conducted prior to the event.
    (b) An authorized representative of the sponsor shall sign the 
notification of a covered event, certify the notification is made in 
good faith and the covered event is not an exclusion as specified in 
Sec. 950.14(b), and represent that the supporting information is 
accurate and complete to the sponsor's knowledge and belief.



Sec. 950.22   Covered event determination.

    (a) Completeness review. Upon notification of a covered event from 
the sponsor, the Claims Administrator shall review the notification for 
completeness within thirty (30) days of receipt. If the notification is 
not complete, the Claims Administrator shall return the notification 
within thirty (30) days of receipt and specify the incomplete 
information for submission by the sponsor to the Claims Administrator in 
time for a determination by the Claims Administrator in accordance with 
paragraph (c) of this section.
    (b) Covered Event Determination. The Claims Administrator shall 
review the notification and supporting information to determine whether 
there is agreement by the Claims Administrator with the sponsor's 
representation of the event as a covered event (Covered Event 
Determination) based on a review of the contract conditions for covered 
events and exclusions.
    (1) If the Claims Administrator believes the event is an exclusion 
as set forth in Sec. 950.14(b), the Claims Administrator shall request 
within 30 days of receipt of the notification of a covered event 
information in the sponsor's possession that is relevant to the 
exclusion. The sponsor shall provide the requested information to the 
Administrator within 20 days of receipt of the Administrator's request.
    (2) The sponsor's failure to provide the requested information in a 
complete or timely manner constitutes a basis for the Claims 
Administrator to disagree with the sponsor's covered event notification 
as provided in paragraph (c) of this section, and to deny a claim for 
covered costs related to the exclusion as provided in Sec. 950.24 of 
this part.
    (c) Timing. The Claims Administrator shall notify the sponsor within 
sixty (60) days of receipt of the notification whether the Administrator 
agrees with the sponsor's representation, disagrees with the 
representation, requires further information, or is an exclusion. If the 
sponsor disagrees with the Covered Event Determination, the parties 
shall resolve the dispute in accordance with the procedures set forth in 
subpart D of this part.



Sec. 950.23  Claims process for payment of covered costs.

    (a) General. No more than 120 days of when a sponsor was scheduled 
to attain full power operation and expects it will incur covered costs, 
the sponsor may make a claim upon the Department for the payment of its 
covered costs under the Standby Support Contract. The

[[Page 674]]

sponsor shall file a Certification of Covered Costs and thereafter such 
Supplementary Certifications of Covered Costs as may be necessary to 
receive payment under the Standby Support Contract for covered costs.
    (b) Certification of Covered Costs. The Certification of Covered 
Costs shall include the following:
    (1) A Claim Report, including the information specified in paragraph 
(c) of this section;
    (2) A certification by the sponsor that:
    (i) The covered costs listed on the Claim Report filed pursuant to 
this section are losses to be incurred by the sponsor;
    (ii) The claims for the covered costs were processed in accordance 
with appropriate business practices and the procedures specified in this 
subpart; and
    (iii) The sponsor has used due diligence to mitigate, shorten, and 
end, the covered delay and associated costs covered by the Standby 
Support Contract.
    (c) Claim Report. For purposes of this part, a ``Claim Report'' is a 
report of information about a sponsor's underlying claims that, in the 
aggregate, constitute the sponsor's covered costs. The Claim Report 
shall include, but is not limited to:
    (1) Detailed information substantiating the duration of the covered 
delay;
    (2) Detailed information about the covered costs associated with 
covered delay, including as applicable:
    (i) The amount of payment for principal or interest during the 
covered delay, including the relevant dates of payment, amounts of 
payment and any other information deemed relevant by the Department, and 
the name of the holder of the debt, if the debt obligation is held by a 
Federal agency; or
    (ii) The underlying payment during the covered delay related to the 
incremental cost of purchasing power to meet contractual agreements, 
including any documentation deemed relevant by the Department to 
calculate the fair market price of power.
    (d) Supplementary Certification of Covered Cost. If the total amount 
of the covered costs due to a sponsor under the Standby Support Contract 
has not been determined at the time the Certification of Covered Costs 
has been filed, the sponsor shall file monthly, or on a schedule 
otherwise determined by the Claims Administrator, Supplementary 
Certifications of Covered Costs updating the amount of the covered costs 
owed to the sponsor. Supplementary Certifications of Covered Costs shall 
include a Claim Report and a certification as described in this section.
    (e) Supplementary information. In addition to the information 
required in paragraphs (b) and (c) of this section, the Claims 
Administrator may request such additional supporting documentation as 
required to ascertain the allowable covered costs sustained by a 
sponsor.

    Effective Date Note: At 71 FR 46325, Aug. 11, 2006, Sec. 950.23 was 
revised, effective Sept. 11, 2006. This text contains information 
collection and recordkeeping requirements and will not become effective 
until approval has been given by the Office of Management and Budget.



Sec. 950.24  Claims determination for covered costs.

    (a) No later than thirty (30) days from the sponsor's submission of 
a Certification of Covered Costs, the Claims Administrator shall issue a 
Claim Determination identifying those claimed costs deemed to be 
allowable based on an evaluation of:
    (1) The duration of covered delay, taking into account contributory 
or concurrent delays resulting from exclusions from coverage as 
established by the Claims Administrator in accordance with Sec. 950.22;
    (2) The covered costs associated with covered delay, including an 
assessment of the sponsor's due diligence in mitigating or ending 
covered costs, as set forth in Sec. 950.23;
    (3) Any adjustments to the covered costs, as set forth in Sec. 
950.26; and
    (4) Other information as necessary and appropriate.
    (b) The Claim Determination shall state the Claims Administrator's 
determination that the claim shall be paid in full, paid in an adjusted 
amount as deemed allowable by the Claims Administrator, or rejected in 
full.

[[Page 675]]

    (c) Should the Claims Administrator conclude that the sponsor has 
not supplied the required information in the Certification of Covered 
Costs or any supporting documentation sufficient to allow reasonable 
verification of the duration of the covered delay or covered costs, the 
Claims Administrator shall so inform the sponsor and specify the nature 
of additional documentation requested, in time for the sponsor to supply 
supplemental documentation and for the Claims Administrator to issue the 
Claim Determination.
    (d) Should the Claims Administrator find that any claimed covered 
costs are not allowable or otherwise should be considered excluded costs 
under the Standby Support Contract, the Claims Administrator shall 
identify such costs and state the reason(s) for that decision in 
writing. A determination by the Claims Administrator that an event is an 
exclusion or that the sponsor has not provided complete or timely 
information relevant to the exclusion as specified in Sec. 950.22 shall 
provide a basis for the Claims Administrator to find covered costs are 
not allowable. If the parties cannot agree on the covered costs, they 
shall resolve the dispute in accordance with the requirements in subpart 
D of this part.



Sec. 950.25  Calculation of covered costs.

    (a) The Claims Administrator shall calculate the allowable amount of 
the covered costs claimed in the Certification of Covered Costs as 
follows:
    (1) Costs covered through Program Account. The principal or interest 
on any debt obligation financing the advanced nuclear facility for the 
duration of covered delay to the extent the debt obligation was included 
in the calculation of the loan cost; and
    (2) Costs covered by Grant Account. The incremental costs calculated 
for the duration of the covered delay. In calculating the incremental 
cost of power, the Claims Administrator shall consider:
    (i) Fair Market Price. The fair market price may be determined by 
the lower of the two options: The actual cost of the short-term supply 
contract for replacement power, purchased by the sponsor, during the 
period of delay, or for each day of replacement power by its day-ahead 
weighted average index price in $/MWh at the hub geographically nearest 
to the advanced nuclear facility as posted on the previous day by the 
Intercontinental Exchange (ICE) or an alternate electronic marketplace 
deemed reliable by the Department. The daily MWh assumed to be covered 
is no more than its nameplate capacity multiplied by 24 hours; 
multiplied by the capacity-weighted U.S. average capacity factor in the 
previous calendar year, including in the calculation any and all 
commercial nuclear power units that operated in the United States for 
any part of the previous calendar year; and multiplied by the average of 
the ratios of the net generation to the grid for calculating payments to 
the Nuclear Waste Fund to the nameplate capacity for each nuclear unit 
included. In addition, the Claims Administrator may consider ``fair 
market price'' from other published indices or prices at regional 
trading hubs and bilateral contracts for similar delivered firm power 
products and the costs incurred, including acquisition costs, to move 
the power to the contract-specified point of delivery, as well as the 
provisions of the covered contract regarding replacement power costs for 
delivery default; and
    (ii) Contractual price of power. The contractual price of power 
shall be determined as the daily weighted average price in equivalent $/
MWh under a contractual supply agreement(s) for delivery of firm power 
that the sponsor entered into prior to any covered event. The daily MWh 
assumed to be covered is no more than the advanced nuclear facility's 
nameplate capacity multiplied by 24 hours; multiplied by the capacity-
weighted U.S. average capacity factor in the previous calendar year, 
including in the calculation any and all commercial nuclear power units 
that operated in the United States for any part of the previous calendar 
year; and multiplied by the average of the ratios of the net generation 
to the grid for calculating payments to the Nuclear Waste Fund to the 
nameplate capacity for each nuclear unit included.

[[Page 676]]



Sec. 950.26  Adjustments to claim for payment of covered costs.

    (a) Aggregate amount of covered costs. The sponsor's aggregate 
amount of covered costs shall be reduced by any amounts that are 
determined to be either excluded or not covered.
    (b) Amount of Department share of covered costs. The Department 
share of covered costs shall be adjusted as follows:
    (1) No excess recoveries. The share of covered costs paid by the 
Department to a sponsor shall not be greater than the limitations set 
forth in Sec. 950.27(d).
    (2) Reduction of amount payable. The share of covered costs paid by 
the Department shall be reduced by the appropriate amount consistent 
with the following:
    (i) Excluded claims. The Department shall ensure that no payment 
shall be made for costs resulting from events that are not covered under 
the contract as specified in Sec. 950.14; and
    (ii) Sponsor due diligence. Each sponsor shall ensure and 
demonstrate that it uses due diligence to mitigate, shorten, and to end 
the covered delay and associated costs covered by the Standby Support 
Contract.



Sec. 950.27  Conditions for payment of covered costs.

    (a) General. The Department shall pay the covered costs associated 
with a Standby Support Contract in accordance with the Claim 
Determination issued by the Claims Administrator under Sec. 950.24 or 
the Final Claim Determination under Sec. 950.34, provided that:
    (1) Neither the sponsor's claim for covered costs nor any other 
document submitted to support the underlying claim is fraudulent, 
collusive, made in bad faith, dishonest or otherwise designed to 
circumvent the purposes of the Act and regulations;
    (2) The losses submitted for payment are within the scope of 
coverage issued by the Department under the terms and conditions of the 
Standby Support Contract as specified in subpart B of this part; and
    (3) The procedures specified in this subpart have been followed and 
all conditions for payment have been met.
    (b) Adjustments to Payments. In the event of fraud or 
miscalculation, the Department may subsequently adjust, including an 
adjustment obligating the sponsor to repay any payment made under 
paragraph (a) of this section.
    (c) Suspension of payment for covered costs. If the Department paid 
or is paying covered costs under paragraph (a) of this section, and 
subsequently makes a determination that a sponsor has failed to meet any 
of the requirements for payment specified in paragraph (a) of this 
section for a particular covered cost, the Department may suspend 
payment of covered costs pending investigation and audit of the 
sponsor's covered costs.
    (d) Amount payable. The Department's share of compensation for the 
initial two reactors is 100 percent of the covered costs of covered 
delay but not more than the coverage in the contract or $500 million per 
contract, whichever is less; and for the subsequent four reactors, not 
more than 50 percent of the covered costs of the covered delay but not 
more than the coverage in the contract or $250 million per contract, 
whichever is less. The Department's share of compensation for the 
subsequent four reactors is further limited in that the payment is for 
covered costs of a covered delay that occurs after the initial 180-day 
period of covered delay.



Sec. 950.28  Payment of covered costs.

    (a) General. The Department shall pay to a sponsor covered costs in 
accordance with this subpart and the terms of the Standby Support 
Contract. Payment shall be made in such installments and on such 
conditions as the Department determines appropriate. Any overpayments by 
the Department of the covered costs shall be offset from future payments 
to the sponsor or returned by the sponsor to the Department within 
forty-five (45) days. If there is a dispute, then the Department shall 
pay the undisputed costs and defer payment of the disputed portion upon 
resolution of the dispute in accordance with the procedures in subpart D 
of this part. If the covered costs include principal or interest owed on 
a loan made or guaranteed by a Federal agency, the Department shall 
instead pay that Federal

[[Page 677]]

agency the covered costs, rather than the sponsor.
    (b) Timing of Payment. The sponsor may receive payment of covered 
costs when:
    (1) The Department has approved payment of the covered cost as 
specified in this subpart; and
    (2) The sponsor has incurred and is obligated to pay the costs for 
which payment is requested.
    (c) Payment process. The covered costs shall be paid to the sponsor 
designated on the Certification of Covered Costs required by Sec. 
950.23, or to the sponsor's assignee as permitted by Sec. 950.13(h). A 
sponsor that requests payment of the covered costs must receive payment 
through electronic funds transfer.



                  Subpart D_Dispute Resolution Process



Sec. 950.30  General.

    The parties, i.e., the sponsor and the Department, shall include 
provisions in the Standby Support Contract that specify the procedures 
set forth in this subpart for the resolution of disputes under a Standby 
Support Contract. Sections 950.31 and 950.32 address disputes involving 
covered events; Sec. Sec. 950.33 and 950.34 address disputes involving 
covered costs; and Sec. Sec. 950.36 and 950.37 address disputes 
involving other contract matters.



Sec. 950.31  Covered event dispute resolution.

    (a) If a sponsor disagrees with the Covered Event Determination 
rendered in accordance with Sec. 950.22 and cannot resolve the dispute 
informally with the Claims Administrator, then the disagreement is 
subject to resolution as follows:
    (1) A sponsor shall, within thirty (30) days of receipt of the 
Covered Event Determination, deliver to the Claims Administrator written 
notice of a sponsor's rebuttal which sets forth reasons for its 
disagreement, including any expert opinion obtained by the sponsor.
    (2) After submission of the sponsor's rebuttal to the Claims 
Administrator, the parties shall have fifteen (15) days during which 
time they must informally and in good faith participate in mediation to 
attempt to resolve the disagreement before instituting the process under 
paragraph (b) of this section. If the parties reach agreement through 
mediation, the agreement shall constitute a Final Determination on 
Covered Events.
    (3) The parties shall jointly select the mediator(s). The parties 
shall share equally the cost of the mediation.
    (b) If the parties cannot resolve the disagreement through mediation 
under the timeframe established under paragraph (a)(2) of this section 
and the sponsor elects to continue pursuing the claim, the sponsor shall 
within ten (10) days submit any remaining issues in controversy to the 
Civilian Board of Contract Appeals (Civilian Board) or its successor, 
for resolution by an Administrative Judge of the Civilian Board 
utilizing the Civilian Board's Summary Binding Decision procedure. The 
parties shall abide by the procedures of the Civilian Board for Summary 
Binding Decision. The parties agree that the decision of the Civilian 
Board constitutes a Final Determination on Covered Events.



Sec. 950.32  Final determination on covered events.

    (a) If the parties reach a Final Determination on Covered Events 
through mediation, or Summary Binding Decision as set forth in this 
subpart, the Final Determination on Covered Events is a final settlement 
of the issue, made by the sponsor and the Program Administrator. The 
sponsor, and the Department, may rely on, and neither may challenge, the 
Final Determination on Covered Events in any future Certification of 
Covered Costs related to the covered event that was the subject of that 
Initial Determination.
    (b) The parties agree that no appeal shall be taken or further 
review sought, and that the Final Determination on Covered Events is 
final, conclusive, non-appealable and may not be set aside, except for 
fraud.



Sec. 950.33  Covered costs dispute resolution.

    (a) If a sponsor disagrees with the Claim Determination rendered in 
accordance with Sec. 950.24 and cannot resolve the dispute informally 
with the

[[Page 678]]

Claims Administrator, then the parties agree that any dispute must be 
resolved as follows:
    (1) A sponsor shall, within thirty (30) days of receipt of the Claim 
Determination, deliver to the Claims Administrator in writing notice of 
and reasons for its disagreement (Sponsor's Rebuttal), including any 
expert opinion obtained by the sponsor.
    (2) After submission of the sponsor's rebuttal to the Claims 
Administrator, the parties have fifteen (15) days to informally and in 
good faith participate in mediation to resolve the disagreement before 
instituting the process under paragraph (b) of this section. If the 
parties reach agreement through mediation, the agreement shall 
constitute a Final Claim Determination.
    (3) The parties shall jointly select the mediator(s). The parties 
shall share equally the cost of the mediator(s).
    (b) If the parties cannot resolve the disagreement through mediation 
under the timeframe established under paragraph (a)(2) of this section, 
any remaining issues in controversy shall be submitted by the sponsor 
within ten (10) days to the Civilian Board or its successor, for 
resolution by an Administrative Judge of the Civilian Board utilizing 
the Board's Summary Binding Decision procedure. The parties shall abide 
by the procedures of the Civilian Board for Summary Binding Decision. 
The parties agree that the decision of the Civilian Board shall 
constitute a Final Claim Determination.



Sec. 950.34  Final claim determination.

    (a) If the parties reach a Final Claim Determination through 
mediation, or Summary Binding Decision as set forth in this subpart, the 
Final Claim Determination is a final settlement of the issue, made by 
the sponsor and the Program Administrator.
    (b) The parties agree that no appeal shall be taken or further 
review sought and that the Final Claim Determination is final, 
conclusive, non-appealable, and may not be set aside, except for fraud.



Sec. 950.35  Payment of final claim determination.

    Once a Final Claim Determination is reached by the methods set forth 
in this subpart, the parties intend that such a Final Claim 
Determination shall constitute a final settlement of the claim and the 
sponsor may immediately present to the Department a Final Claim 
Determination for payment.



Sec. 950.36  Other contract matters in dispute.

    (a) If the parties disagree over terms or conditions of the Standby 
Support Contract other than disagreements related to covered events or 
covered costs, then the parties shall engage in informal dispute 
resolution as follows:
    (1) The parties shall engage in good faith efforts to resolve the 
dispute after written notification by one party to the other that there 
is a contract matter in dispute.
    (2) If the parties cannot reach a resolution of the matter in 
disagreement within thirty (30) days of the written notification of the 
matter in dispute, then the parties shall have fifteen (15) days during 
which time they must informally and in good faith participate in 
mediation to attempt to resolve the disagreement before instituting the 
process under paragraph (b) of this section. If the parties reach 
agreement through mediation, the agreement shall constitute a Final 
Agreement on the matter in dispute.
    (3) The parties shall jointly select the mediator(s). The parties 
shall share equally the cost of the mediation.
    (b) If the parties cannot resolve the disagreement through mediation 
under the timeframe established in paragraph (a)(2) of this section and 
either party elects to continue pursuing the disagreement, that party 
shall within ten (10) days submit any remaining issues in controversy to 
the Civilian Board or its successor, for resolution by an Administrative 
Judge of the Civilian Board utilizing the Civilian Board's Summary 
Binding Decision procedure. The parties shall abide by the procedures of 
the Civilian Board for Summary Binding Decision. The parties shall agree 
that the decision of the Civilian Board constitutes a Final Decision on 
the matter in dispute.

[[Page 679]]



Sec. 950.37  Final agreement or final decision.

    (a) If the parties reach a Final Agreement on a contract matter in 
dispute through mediation, or a Final Decision on a contract matter in 
dispute through a Summary Binding Decision as set forth in this subpart, 
the Final Agreement or Final Decision is a final settlement of the 
contract matter in dispute, made by the sponsor and the Program 
Administrator.
    (b) The parties agree that no appeal shall be taken or further 
review sought, and that the Final Agreement or Final Decision is final, 
conclusive, non-appealable and may not be set aside, except for fraud.



         Subpart E_Audit and Investigations and Other Provisions



Sec. 950.40  General.

    The parties shall include a provision in the Standby Support 
Contract that specifies the procedures in this subpart for the 
monitoring, auditing and disclosure of information under a Standby 
Support Contract.



Sec. 950.41  Monitoring/Auditing.

    The Department has the right to audit any and all costs associated 
with the Standby Support Contracts. Auditors who are employees of the 
United States government, who are designated by the Secretary of Energy 
or by the Comptroller General of the United States, shall have access 
to, and the right to examine, at the sponsor's site or elsewhere, any 
pertinent documents and records of a sponsor at reasonable times under 
reasonable circumstances. The Secretary may direct the sponsor to submit 
to an audit by a public accountant or equivalent acceptable to the 
Secretary.



Sec. 950.42  Disclosure.

    Information received from a sponsor by the Department may be 
available to the public subject to the provision of 5 U.S.C. 552, 18 
U.S.C. 1905 and 10 CFR part 1004; provided that:
    (a) Subject to the requirements of law, information such as trade 
secrets, commercial and financial information that a sponsor submits to 
the Department in writing shall not be disclosed without prior notice to 
the sponsor in accordance with Department regulations concerning the 
public disclosure of information. Any submitter asserting that the 
information is privileged or confidential should appropriately identify 
and mark such information.
    (b) Upon a showing satisfactory to the Program Administrator that 
any information or portion thereof obtained under this regulation would, 
if made public, divulge trade secrets or other proprietary information, 
the Department may not disclose such information.



PART 960_GENERAL GUIDELINES FOR THE PRELIMINARY SCREENING OF POTENTIAL SITES FOR A NUCLEAR WASTE REPOSITORY--Table of Contents



                      Subpart A_General Provisions

Sec.
960.1 Applicability.
960.2 Definitions.

                   Subpart B_Implementation Guidelines

960.3 Implementation guidelines.
960.3-1 Siting provisions.
960.3-1-1 Diversity of geohydrologic settings.
960.3-1-2 Diversity of rock types.
960.3-1-3 Regionality.
960.3-1-4 Evidence for siting decisions.
960.3-1-4-1 Site identification as potentially acceptable.
960.3-1-4-2 Site nomination for characterization.
960.3-1-4-3 Site recommendation for characterization.
960.3-1-5 Basis for site evaluations.
960.3-2 Siting process.
960.3-2-1 Site screening for potentially acceptable sites.
960.3-2-2 Nomination of sites as suitable for characterization.
960.3-2-2-1 Evaluation of all potentially acceptable sites.
960.3-2-2-2 Selection of sites within geohydrologic settings.
960.3-2-2-3 Comparative evaluation of all sites proposed for nomination.
960.3-2-2-4 The environmental assessment.
960.3-2-2-5 Formal site nomination.
960.3-2-3 Recommendation of sites for characterization.
960.3-3 Consultation.
960.3-4 Environmental impacts.

[[Page 680]]

                    Subpart C_Postclosure Guidelines

960.4 Postclosure guidelines.
960.4-1 System guideline.
960.4-2 Technical guidelines.
960.4-2-1 Geohydrology.
960.4-2-2 Geochemistry.
960.4-2-3 Rock characteristics.
960.4-2-4 Climatic changes.
960.4-2-5 Erosion.
960.4-2-6 Dissolution.
960.4-2-7 Tectonics.
960.4-2-8 Human interference.
960.4-2-8-1 Natural resources.
960.4-2-8-2 Site ownership and control.

                     Subpart D_Preclosure Guidelines

960.5 Preclosure guidelines.
960.5-1 System guidelines.
960.5-2 Technical guidelines.

                     Preclosure Radiological Safety

960.5-2-1 Population density and distribution.
960.5-2-2 Site ownership and control.
960.5-2-3 Meteorology.
960.5-2-4 Offsite installations and operations.

             Environment, Socioeconomics, and Transportation

960.5-2-5 Environmental quality.
960.5-2-6 Socioeconomic impacts.
960.5-2-7 Transportation.

      Ease and Cost of Siting, Construction, Operation, and Closure

960.5-2-8 Surface characteristics.
960.5-2-9 Rock characteristics.
960.5-2-10 Hydrology.
960.5-2-11 Tectonics.

Appendix I to Part 960--NRC and EPA Requirements for Postclosure 
          Repository Performance
Appendix II to Part 960--NRC and EPA Requirements for Preclosure 
          Repository Performance
Appendix III to Part 960--Application of the System and Technical 
          Guidelines During the Siting Process
Appendix IV to Part 960--Types of Information for the Nomination of 
          Sites as Suitable for Characterization

    Authority: 42 U.S.C. 2011 et seq., 42 U.S.C. 7101 et seq., 42 U.S.C. 
10101 et seq.

    Source: 49 FR 47752, Dec. 6, 1984, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 960.1  Applicability.

    These guidelines were developed in accordance with the requirements 
of Section 112(a) of the Nuclear Waste Policy Act of 1982 for use by the 
Secretary of Energy in evaluating the suitability of sites. The 
guidelines will be used for suitability evaluations and determinations 
made pursuant to Section 112(b). The guidelines set forth in this part 
are intended to complement the requirements set forth in the Act, 10 CFR 
part 60, and 40 CFR part 191. The DOE recognizes NRC jurisdiction for 
the resolution of differences between the guidelines and 10 CFR part 60. 
The guidelines have received the concurrence of the NRC. The DOE 
contemplates revising the guidelines from time to time, as permitted by 
the Act, to take into account revisions made to the above regulations 
and to otherwise update the guidelines as necessary. The DOE will submit 
the revisions to the NRC and obtain its concurrence before issuance.

[49 FR 47752, Dec. 6, 1984, as amended at 66 FR 57334, Nov. 14, 2001]



Sec. 960.2  Definitions.

    As used in this part:
    Accessible environment means the atmosphere, the land surface, 
surface water, oceans, and the portion of the lithosphere that is 
outside the controlled area.
    Act means the Nuclear Waste Policy Act of 1982, as amended.
    Active fault means a fault along which there is recurrent movement, 
which is usually indicated by small, periodic displacements or seismic 
activity.
    Affected area means either the area of socioeconomic impact or the 
area of environmental impact, each of which will vary in size among 
potential repository sites.
    Affected Indian tribe means any Indian tribe (1) within whose 
reservation boundaries a repository for radioactive waste is proposed to 
be located or (2) whose federally defined possessory or usage rights to 
other lands outside the reservation's boundaries arising out of 
congressionally ratified treaties may be substantially and adversely 
affected by the locating of such a facility: Provided, That the 
Secretary of the Interior finds, upon the petition of the appropriate 
governmental officials of the

[[Page 681]]

tribe, that such effects are both substantial and adverse to the tribe.
    Affected State means any State that (1) has been notified by the DOE 
in accordance with Section 116(a) of the Act as containing a potentially 
acceptable site; (2) contains a candidate site for site characterization 
or repository development; or (3) contains a site selected for 
repository development.
    Application means the act of making a finding of compliance or 
noncompliance with the qualifying or disqualifying conditions specified 
in the guidelines of subparts C and D of this part.
    Aquifer means a formation, a group of formations, or a part of a 
formation that contains sufficient saturated permeable material to yield 
significant quantities of water to wells and springs.
    Barrier means any material or structure that prevents or 
substantially delays the movement of water or radionuclides.
    Candidate site means an area, within a geohydrologic setting, that 
is recommended by the Secretary of Energy under section 112 of the Act 
for site characterization, approved by the President under section 112 
of the Act for characterization, or undergoing site characterization 
under section 113 of the Act.
    Closure means final backfilling of the remaining open operational 
areas of the underground facility and boreholes after the termination of 
waste emplacement, culminating in the sealing of shafts.
    Confining unit means a body of impermeable or distinctly less 
permeable material stratigraphically adjacent to one or more aquifers.
    Containment means the confinement of radioactive waste within a 
designated boundary.
    Controlled area means a surface location, to be marked by suitable 
monuments, extending horizontally no more than 10 kilometers in any 
direction from the outer boundary of the underground facility, and the 
underlying subsurface, which area has been committed to use as a 
geologic repository and from which incompatible activities would be 
prohibited before and after permanent closure.
    Cumulative releases of radionuclides means the total number of 
curies of radionuclides entering the accessible environment in any 
10,000-year period, normalized on the basis of radiotoxicity in 
accordance with 40 CFR part 191. The peak cumulative release of 
radionuclides refers to the 10,000-year period during which any such 
release attains its maximum predicted value.
    Decommissioning means the permanent removal from service of surface 
facilities and components neceessary for preclosure operations only, 
after repository closure, in accordance with regulatory requirements and 
environmental policies.
    Determination means a decision by the Secretary that a site is 
suitable for site characterization for the selection of a repository, 
consistent with applications of the guidelines of subparts C and D of 
this part in accordance with the provisions set forth in subpart B of 
this part.
    Disposal means the emplacement in a repository of high-level 
radioactive waste, spent nuclear fuel, or other highly radioactive 
material with no foreseeable intent of recovery, whether or not such 
emplacement permits the recovery of such waste, and the isolation of 
such waste from the accessible environment.
    Disqualifying condition means a condition that, if present at a 
site, would eliminate that site from further consideration.
    Disturbed zone means that portion of the controlled area, excluding 
shafts, whose physical or chemical properties are predicted to change as 
a result of underground facility construction or heat generated by the 
emplaced radioactive waste such that the resultant change of properties 
could have a significant effect on the preformance of the geologic 
repository.
    DOE means the U.S. Department of Energy or its duly authorized 
representatives.
    Effective porosity means the amount of interconnected pore space and 
fracture openings available for the transmission of fluids, expressed as 
the ratio of the volume of interconnected pores and openings to the 
volume of rock.

[[Page 682]]

    Engineered-barrier system means the manmade components of a disposal 
system designed to prevent the release of radionuclides from the 
underground facility or into the geohydrologic setting. Such term 
includes the radioactive-waste form, radioactive-waste canisters, 
materials placed over and around such canisters, any other components of 
the waste package, and barriers used to seal penetrations in and into 
the underground facility.
    Environmental assessment means the document required by section 
112(b)(1)(E) of the Nuclear Waste Policy Act of 1982.
    Environmental impact statement means the document required by 
section 102(2)(C) of the National Environmental Policy Act of 1969. 
Sections 114(a) and 114(f) of the Nuclear Waste Policy Act of 1982 
include certain limitations on the National Environmental Policy Act 
requirements as they apply to the preparation of an environmental impact 
statement for the development of a repository at a characterized site.
    EPA means the U.S. Environmental Protection Agency or its duly 
authorized representatives.
    Evaluation means the act of carefully examining the characteristics 
of a site in relation to the requirements of the qualifying or 
disqualifying conditions specified in the guidelines of subparts C and 
D. Evaluation includes the consideration of favorable and potentially 
adverse conditions.
    Excepted means assumed to be probable or certain on the basis of 
existing evidence and in the absence of significant evidence to the 
contrary.
    Expected repository performance means the manner in which the 
repository is predicted to function, consideration those conditions, 
processes, and events that are likely to prevail or may occur during the 
time period of interest.
    Facility means any structure, system, or system component, including 
engineered barriers, created by the DOE to meet repository-performance 
or functional objectives.
    Fault means a fracture or a zone of fractures along which there has 
been displacement of the side relative to one another parallel to the 
fracture or zone of fractures.
    Faulting means the process of fracturing and displacement that 
produces a fault.
    Favorable condition means a condition that, though not necessary to 
qualify a site, is presumed, if present, to enhance confidence that the 
qualifying condition of a particular guideline can be met.
    Finding means a conclusion that is reached after evaluation.
    Geohydrologic setting means the system of geohydrologic units that 
is located within a given geologic setting.
    Geohydrologic system means the geohydrologic units within a geologic 
setting, including any recharge, discharge, interconnections between 
units, and any natural or man-induced processes or events that could 
affect ground-water flow within or among those units.
    Geohydrologic unit means an aquifer, a confining unit, or a 
combination of aquifers and confining units comprising a framework for a 
reasonably distinct geohydrologic system.
    Geologic repository means a system, requiring licensing by the NRC, 
that is intended to be used, or may be used, for the disposal of 
radioactive waste in excavated geologic media. A geologic repository 
includes (1) the geologic-repository operations area and (2) the portion 
of the geologic setting that provides isolation of the radioactive waste 
and is located within the controlled area.
    Geologic-repository operations area means a radioactive-waste 
facility that is part of the geologic repository, including both surface 
and subsurface areas and facilities where waste-handling activities are 
conducted.
    Geologic setting means the geologic, hydrologic, and geochemical 
systems of the region in which a geologic-repository operations area is 
or may be located.
    Geomorphic processes means geologic processes that are responsible 
for the general configuration of the Earth's surface, including the 
development of present landforms and their relationships to underlying 
structures, and are responsible for the geologic changes recorded by 
these surface features.
    Ground water means all subsurface water as distinct from surface 
water.

[[Page 683]]

    Ground-water flux means the rate of ground-water flow per unit area 
of porous or fractured media measured perpendicular to the direction of 
flow.
    Ground-water sources means aquifers that have been or could be 
economically and technologically developed as sources of water in the 
foreseeable future.
    Ground-water travel time means the time required for a unit volume 
of ground water to travel between two locations. The travel time is the 
length of the flow path divided by the velocity, where velocity is the 
average ground-water flux passing through the cross-sectional area of 
the geologic medium through which flow occurs, perpendicular to the flow 
direction, divided by the effective porosity along the flow path. If 
discrete segments of the flow path have different hydrologic properties, 
the total travel time will be the sum of the travel times for each 
discrete segment.
    Guideline means a statement of policy or procedure that may include, 
when appropriate, qualifying, disqualifying, favorable, or potentially 
adverse conditions as specified in the ``guidelines.''
    Guidelines means part 960 of title 10 of the Code of Federal 
Regulations--General Guidelines for the Recommendation of Sites for 
Nuclear Waste Repositories.
    High-level radioactive waste means (1) the highly radioactive 
material resulting from the reprocessing of spent nuclear fuel, 
including liquid waste produced directly in reprocessing and any solid 
material derived from such liquid waste that contains fission products 
in sufficient concentrations and (2) other highly radioactive material 
that the NRC, consistent with existing law, determines by rule requires 
permanent isolation.
    Highly populated area means any incoporated place (recognized by the 
decennial reports of the U.S. Bureau of the Census) of 2,500 or more 
persons, or any census designated place (as defined and delineated by 
the Bureau) of 2,500 or more persons, unless it can be demonstrated that 
any such place has a lower population density than the mean value for 
the continental United States. Counties or county equivalents, whether 
incorporated or not, are specifically excluded form the definition of 
``place'' as used herein.
    Host rock means the geologic medium in which the waste is emplaced, 
specifically the geologic materials that directly encompass and are in 
close proximity to the underground facility.
    Hydraulic conductivity means the volume of water that will move 
through a medium in a unit of time under a unit hydraulic gradient 
through a unit area measured perpendicular to the direction of flow.
    Hydraulic gradient means a change in the static pressure of ground 
water, expressed in terms of the height of water above a datum, per unit 
of distance in a given direction.
    Hydrologic process means any hydrologic phenomenon that exhibits a 
continuous change in time, whether slow or rapid.
    Hydrologic properties means those properties of a rock that govern 
the entrance of water and the capacity to hold, transmit, and deliver 
water, such as porosity, effective porosity, specific retention, 
permeability, and the directions of maximum and minimum permeabilities.
    Igneous activity means the emplacement (intrusion) of molten rock 
material (magma) into material in the Earth's crust or the expulsion 
(extrusion) of such material onto the Earth's surface or into its 
atmosphere or surface water.
    Isolation means inhibiting the transport of radioactive material so 
that the amounts and concentrations of this material entering the 
accessible environment will be kept within prescribed limits.
    Likely means processing or displaying the qualities, 
characteristics, or attributes that provide a reasonable basis for 
confidence that what is expected indeed exists or will occur.
    Lithosphere means the solid part of the Earth, including any ground 
water contained within it.
    Member of the public means any individual who is not engaged in 
operations involving the management, storage, and disposal of 
radioactive waste. A worker so engaged is a member of the public except 
when on duty at the geologic-repository operations area.

[[Page 684]]

    Mitigation means: (1) Avoiding the impact altogether by not taking a 
certain action or parts of an action; (2) minimizing impacts by limiting 
the degree or magnitude of the action and its implementation; (3) 
rectifying the impact by repairing, rehabilitating, or restoring the 
affected environment; (4) reducing or eliminating the impact over time 
by preservation and maintenance operations during the life of the 
action; or (5) compensating for the impact by replacing or providing 
substitute resources or environments.
    Model means a conceptual description and the associated mathematical 
representation of a system, subsystem, component, or condition that is 
used to predict changes from a baseline state as a function of internal 
and/or external stimuli and as a function of time and space.
    NRC means the U.S. Nuclear Regulatory Commission or its duly 
authorized representatives.
    Perched ground water means unconfined ground water separated from an 
underlying body of ground water by an unsaturated zone. Its water table 
is a perched water table. Perched ground water is held up by a perching 
bed whose permeability is so low that water percolating downward through 
it is not able to bring water in the underlying unsaturated zone above 
atmospheric pressure.
    Performance assessment means any analysis that predicts the behavior 
of a system or system component under a given set of constant and/or 
transient conditions. Performance assessments will include estimates of 
the effects of uncertainties in data and modeling.
    Permanent closure is synonymous with ``closure.''
    Postclosure means the period of time after the closure of the 
geologic repository.
    Potentially acceptable site means any site at which, after geologic 
studies and field mapping but before detailed geologic data gathering, 
the DOE undertakes preliminary drilling and geophysical testing for the 
definition of site location.
    Potentially adverse condition means a condition that is presumed to 
detract from expected system performance, but further evaluation, 
additional data, or the identification of compensating or mitigating 
factors may indicate that its effect on the expected system performance 
is acceptable.
    Preclosure means the period of time before and during the closure of 
the geologic repository.
    Pre-waste-emplacement means before the authorization of repository 
construction by the NRC.
    Qualifying condition means a condition that must be satisfied for a 
site to be considered acceptable with respect to a specific guideline.
    Quaternary Period means the second period of the Cenozoic Era, 
following the Tertiary, beginning 2 to 3 million years ago and extending 
to the present.
    Radioactive waste or ``waste'' means high-level radioactive waste 
and other radioactive materials, including spent nuclear fuel, that are 
received for emplacement in a geologic repository.
    Radioactive-waste facility means a facility subject to the licensing 
and related regulatory authority of the NRC pursuant to Sections 202(3) 
and 202(4) of the Energy Reorganization Act of 1974 (88 Stat. 1244).
    Radionuclide retardation means the process or processes that cause 
the time required for a given radionuclide to move between two locations 
to be greater than the ground-water travel time, because of physical and 
chemical interactions between the radionuclide and the geohydrologic 
unit through which the radionuclide travels.
    Reasonably available technology means technology which exists and 
has been demonstrated or for which the results of any requisite 
development, demonstration, or confirmatory testing efforts before 
application will be available within the required time period.
    Repository is synonymous with ``geologic repository.''
    Repository closure is synonymous with ``closure.''
    Repository construction means all excavation and mining activities 
associated with the construction of shafts, shaft stations, rooms, and 
necessary openings in the underground facility, preparatory to 
radioactive-waste emplacement, as well as the construction of necessary 
surface facilities, but excluding site-characterization activities.

[[Page 685]]

    Repository operation means all of the functions at the site leading 
to and involving radioactive-waste emplacement in the underground 
facility, including receiving, transportation, handling, emplacement, 
and, if necessary, retrieval.
    Repository support facilities means all permanent facilities 
constructed in support of site-characterization activities and 
repository construction, operation, and closure activities, including 
surface structures, utility lines, roads, railroads, and similar 
facilities, but excluding the underground facility.
    Restricted area means any area access to which is controlled by the 
DOE for purposes of protecting individuals from exposure to radiation 
and radioactive materials before repository closure, but not including 
any areas used as residential quarters, although a separate room or 
rooms in a residential building may be set apart as a restricted area.
    Retrieval means the act of intentionally removing radioactive waste 
before repository closure from the underground location at which the 
waste had been previously emplaced for disposal.
    Saturated zone means that part of the Earth's crust beneath the 
water table in which all voids, large and small, are ideally filled with 
water under pressure greater than atmospheric.
    Secretary means the Secretary of Energy.
    Site means a potentially acceptable site or a candidate site, as 
appropriate, until such time as the controlled area has been 
established, at which time the site and the controlled area are the 
same.
    Site characterization means activities, whether in the laboratory or 
in the field, undertaken to establish the geologic conditions and the 
ranges of the parameters of a candidate site relevant to the location of 
a repository, including borings, surface excavations, excavations of 
exploratory shafts, limited subsurface lateral excavations and borings, 
and in situ testing needed to evaluate the suitability of a candidate 
site for the location of a repository, but not including preliminary 
borings and geophysical testing needed to assess whether site 
characterization should be undertaken.
    Siting means the collection of exploration, testing, evaluation, and 
decision-making activities associated with the process of site 
screening, site nomination, site recommendation, and site approval for 
characterization or repository development.
    Source term means the kinds and amounts of radionuclides that make 
up the source of a potential release of radioactivity.
    Spent nuclear fuel means fuel that has been withdrawn from a nuclear 
reactor following irradiation, the constituent elements of which have 
not been separated by reprocessing.
    Surface facilities means repository support facilities within the 
restricted area.
    Surface water means any waters on the surface of the Earth, 
including fresh and salt water, ice, and snow.
    System means the geologic setting at the site, the waste package, 
and the repository, all acting together to contain and isolate the 
waste.
    System performance means the complete behavior of a repository 
system in response to the conditions, processes, and events that may 
affect it.
    Tectonic means of, or pertaining to, the forces involved in, or the 
resulting structures or features of, tectonics.
    Tectonics means the branch of geology dealing with the broad 
architecture of the outer part of the Earth, that is, the regional 
assembling of structural or deformational features and the study of 
their mutual relations, origin, and historical evolution.
    To the extent practicable means the degree to which an intended 
course of action is capable of being effected in a manner that is 
reasonable and feasible within a framework of constraints.
    Underground facility means the underground structure and the rock 
required for support, including mined openings and backfill materials, 
but excluding shafts, boreholes, and their seals.
    Unsaturated zone means the zone between the land surface and the 
water table. Generally, water in this zone is under less than 
atmospheric pressure, and some of the voids may contain air or other 
gases at atmospheric pressure. Beneath flooded areas or in perched

[[Page 686]]

water bodies, the water pressure locally may be greater than 
atmospheric.
    Waste form means the radioactive waste materials and any 
encapsulating or stabilizing matrix.
    Waste package means the waste form and any containers, shielding, 
packing, and other sorbent materials immediately surrounding an 
individual waste container.
    Water table means that surface in a body of ground water at which 
the water pressure is atmospheric.

[49 FR 47752, Dec. 6, 1984, as amended at 66 FR 57334, Nov. 14, 2001]



                   Subpart B_Implementation Guidelines



Sec. 960.3  Implementation guidelines.

    The guidelines of this subpart establish the procedure and basis for 
applying the postclosure and the preclosure guidelines of subparts C and 
D, respectively, to evaluations of the suitability of sites. As may be 
appropriate during the siting process, this procedure requires 
consideration of a variety of geohydrologic settings and rock types, 
regionality, and environmental impacts and consultation with affected 
States, affected Indian tribes, and Federal agencies.

[49 FR 47752, Dec. 6, 1984, as amended at 66 FR 57334, Nov. 14, 2001]



Sec. 960.3-1  Siting provisions.

    The siting provisions establish the framework for the implementation 
of the siting process specified in Sec. 960.3-2. Sections 960.3-1-1 and 
960.3-1-2 require that consideration be given to sites situated in 
different geohydrologic settings and different types of host rock, 
respectively. These diversity guidelines are intended to balance the 
process of site selection by requiring consideration of a variety of 
geologic conditions and media, and thereby enhance confidence in the 
technical suitability of sites selected for the development of 
repositories. As required by the Act, Sec. 960.3-1-3 specifies 
consideration of a regional distribution of repositories after 
recommendation of a site for development of the first repository. 
Section 960.3-1-4 describes the evidence that is required to support 
siting decisions. Section 960.3-1-5 establishes the basis for site 
evaluations against the postclosure and the preclosure guidelines of 
subparts C and D during the various phases of the siting process.



Sec. 960.3-1-1  Diversity of geohydrologic settings.

    Consideration shall be given to a variety of geohydrologic settings 
in which sites for the development of repositories may be located. To 
the extent practicable, sites recommended as candidate sites for 
characterization shall be located in different geohydrologic settings.



Sec. 960.3-1-2  Diversity of rock types.

    Consideration shall be given to a variety of geologic media in which 
sites for the development of repositories may be located. To the extent 
practicable, and with due consideration of candidate sites characterized 
previously or approved for such characterization if the circumstances 
apply, sites recommended as candidate sites for characterization shall 
have different types of host rock.



Sec. 960.3-1-3  Regionality.

    In making site recommendations for repository development after the 
site for the first repository has been recommended, the Secretary shall 
give due consideration to the need for, and the advantages of, a 
regional distribution in the siting of subsequent repositories. Such 
consideration shall take into account the proximity of sites to 
locations at which waste is generated or temporarily stored and at which 
other repositories have been or are being developed.



Sec. 960.3-1-4  Evidence for siting decisions.

    The siting process involves a sequence of four decisions: The 
identification of potentially acceptable sites; the nomination of sites 
as suitable for characterization; the recommendation of sites as 
candidate sites for site characterization; and after the completion

[[Page 687]]

of site characterization and nongeologic data gathering, the 
recommendation of a candidate site for the development of a repository. 
Each of these decisions will be supported by the evidence specified 
below.



Sec. 960.3-1-4-1  Site identification as potentially acceptable.

    The evidence for the identification of a potentially acceptable site 
shall be the types of information specified in appendix IV of this part. 
Such evidence will be relatively general and less detailed than that 
required for the nomination of a site as suitable for characterization. 
Because the gathering of detailed geologic data will not take place 
until after the recommendation of a site for characterization, the 
levels of information may be relatively greater for the evaluation of 
those guidelines in subparts C and D that pertain to surface-
identifiable factors for such site. The sources of information shall 
include the literature in the public domain and the private sector, when 
available, and will be supplemented in some instances by surface 
investigations and conceptual engineering design studies conducted by 
the DOE. Geologic surface investigations may include the mapping of 
identifiable rock masses, fracture and joint characteristics, and fault 
zones. Other surface investigations will consider the aquatic and 
terrestrial ecology; water rights and uses; topography; potential 
offsite hazards; natural resource concentrations; national or State 
protected resources; existing transportation systems; meteorology and 
climatology; population densities, centers, and distributions; and 
general socioeconomic characteristics.



Sec. 960.3-1-4-2  Site nomination for characterization.

    The evidence required to support the nomination of a site as 
suitable for characterization shall include the types of information 
specified in appendix IV of this part and shall be contained or 
referenced in the environmental assessments to be prepared in accordance 
with the requirements of the Act. The source of this information shall 
include the literature and related studies in the public domain and the 
private sector, when available, and various meteorological, 
environmental, socioeconomic, and transportation studies conducted by 
the DOE in the affected area; exploratory boreholes in the region of 
such site, including lithologic logging and hydrologic and geophysical 
testing of such boreholes, laboratory testing of core samples for the 
evaluation of geochemical and engineering rock properties, and chemical 
analyses of water samples from such boreholes; surface investigations, 
including geologic mapping and geophysical surveys, and compilations of 
satellite imagery data; in situ or laboratory testing of similar rock 
types under expected repository conditions; evaluations of natural and 
man-made analogs of the repository and its subsystems, such as 
geothermally active areas, underground excavations, and case histories 
of socioeconomic cycles in areas that have experienced intermittent 
large-scale construction and industrial activities; and extrapolations 
of regional data to estimate site-specific characteristics and 
conditions. The exact types and amounts of information to be collected 
within the above categories, including such details as the specific 
types of hydrologic tests, combinations of geophysical tests, or number 
of exploratory boreholes, are dependent on the site-specific needs for 
the application of the guidelines of subparts C and D, in accordance 
with the provisions of this subpart and the application requirements set 
forth in appendix III of this part. The evidence shall also include 
those technical evaluations that use the information specified above and 
that provide additional bases for evaluating the ability of a site to 
meet the qualifying conditions of the guidelines of subparts C and D. In 
developing the above-mentioned bases for evaluation, as may be 
necessary, assumptions that approximate the characteristics or 
conditions considered to exist at a site, or expected to exist or occur 
in the future, may be used. These assumptions will be realistic but 
conservative enough to underestimate the potential for a site to meet 
the qualifying condition of a guideline; that is, the use of such 
assumptions should not lead to an

[[Page 688]]

exaggeration of the ability of a site to meet the qualifying condition.



Sec. 960.3-1-4-3  Site recommendation for characterization.

    The evidence required to support the recommendation of a site as a 
candidate site for characterization shall consist of the evaluations and 
data contained or referenced in the environmental assessment for such 
site, unless the Secretary certifies that such information, in the 
absence of additional preliminary borings or excavations, will not be 
adequate to satisfy applicable requirements of the Act.



Sec. 960.3-1-5  Basis for site evaluations.

    (a) Evaluations of individual sites and comparisons between and 
among sites shall be based on the postclosure and preclosure guidelines 
specified in subparts C and D of this part, respectively. Except for 
screening for potentially acceptable sites as specified in Sec. 960.3-
2-1, such evaluations shall place primary significance on the 
postclosure guidelines and secondary significance on the preclosure 
guidelines, with each set of guidelines considered collectively for such 
purposes. Both the postclosure and the preclosure guidelines consist of 
a system guideline or guidelines and corresponding groups of technical 
guidelines.
    (b) The postclosure guidelines of subpart C of this part contain 
eight technical guidelines in one group. The preclosure guidelines of 
subpart D of this part contain eleven technical guidelines separated 
into three groups that represent, in decreasing order of importance, 
preclosure radiological safety; environment, socioeconomics, and 
transportation; and ease and cost of siting, construction, operation, 
and closure.
    (c) The relative significance of any technical guideline to its 
corresponding system guideline is site specific. Therefore, for each 
technical guideline, an evaluation of compliance with the qualifying 
condition shall be made in the context of the collection of system 
elements and the evidence related to that guideline, considering on 
balance the favorable conditions and the potentially adverse conditions 
identified at a site. Similarly, for each system guideline, such 
evaluation shall be made in the context of the group of technical 
guidelines and the evidence related to that system guideline.
    (d) For purposes of recommending sites for development as 
repositories, such evidence shall include analyses of expected 
repository performance to assess the likelihood of demonstrating 
compliance with 40 CFR part 191 and 10 CFR part 60, in accordance with 
Sec. 960.4-1. A site shall be disqualified at any time during the 
siting process if the evidence supports a finding by the DOE that a 
disqualifying condition exists or the qualifying condition of any system 
or technical guideline cannot be met.
    (e) Comparisons between and among sites shall be based on the system 
guidelines, to the extent practicable and in accordance with the levels 
of relative significance specified above for the postclosure and the 
preclosure guidelines. Such comparisons are intended to allow 
comparative evaluations of sites in terms of the capabilities of the 
natural barriers for waste isolation and to identify innate deficiencies 
that could jeopardize compliance with such requirements. If the evidence 
for the sites is not adequate to substantiate such comparisons, then the 
comparisons shall be based on the groups of technical guidelines under 
the postclosure and the preclosure guidelines, considering the levels of 
relative significance appropriate to the postclosure and the preclosure 
guidelines and the order of importance appropriate to the subordinate 
groups within the preclosure guidelines. Comparative site evaluations 
shall place primary importance on the natural barriers of the site. In 
such evaluations for the postclosure guidelines of subpart C of this 
part, engineered barriers shall be considered only to the extent 
necessary to obtain realistic source terms for comparative site 
evaluations based on the sensitivity of the natural barriers to such 
realistic engineered barriers. For a better understanding of the 
potential effects of engineered barriers on the overall performance of 
the repository system, these comparative evaluations shall consider a 
range of

[[Page 689]]

levels in the performance of the engineered barriers. That range of 
performance levels shall vary by at least a factor of 10 above and below 
the engineered-barrier performance requirements set forth in 10 CFR 
60.113, and the range considered shall be identical for all sites 
compared. The comparisons shall assume equivalent engineered barrier 
performance for all sites compared and shall be structured so that 
engineered barriers are not relied upon to compensate for deficiencies 
in the geologic media. Furthermore, engineered barriers shall not be 
used to compensate for an inadequate site; mask the innate deficiencies 
of a site; disguise the strengths and weaknesses of a site and the 
overall system; and mask differences between sites when they are 
compared. Releases of different radionuclides shall be combined by the 
methods specified in appendix A of 40 CFR part 191.
    (f) The comparisons specified in paragraph (e) of this section shall 
consist of two comparative evaluations that predict radionuclide 
releases for 100,000 years after repository closure and shall be 
conducted as follows. First, the sites shall be compared by means of 
evaluations that emphasize the performance of the natural barriers at 
the site. Second, the sites shall be compared by means of evaluations 
that emphasize the performance of the total repository system. These 
second evaluations shall consider the expected performance of the 
repository system; be based on the expected performance of waste 
packages and waste forms, in compliance with the requirements of 10 CFR 
60.113, and on the expected hydrological and geochemical conditions at 
each site; and take credit for the expected performance of all other 
engineered components of the repository system. The comparison of 
isolation capability shall be one of the significant considerations in 
the recommendation of sites for the development of repositories. The 
first of the two comparative evaluations specified in the paragraph (e) 
of this section shall take precedence unless the second comparative 
evaluation would lead to substantially different recommendations. In the 
latter case, the two comparative evaluations shall receive comparable 
consideration. Sites with predicted isolation capabilities that differ 
by less than a factor of 10, with similar uncertainties, may be assumed 
to provide equivalent isolation.

[66 FR 57334, Nov. 14, 2001]



Sec. 960.3-2  Siting process.

    The siting process begins with site screening for the identification 
of potentially acceptable sites. This process was completed for purposes 
of the first repository before the enactment of the Act, and the 
identification of such sites was made after enactment in accordance with 
the provisions of section 116(a) of the Act. The screening process for 
the identification of potentially acceptable sites for the second and 
subsequent repositories shall be conducted in accordance with the 
requirements specified in Sec. 960.3-2-1 of this subpart. The 
nomination of any site as suitable for characterization shall follow the 
process specified in Sec. 960.3-2-2, and such nomination shall be 
accompanied by an environmental assessment as specified in section 
112(b)(1)(E) of the Act. The recommendation of sites as candidate sites 
for characterization shall be accomplished in accordance with the 
requirements specified in Sec. 960.3-2-3.

[49 FR 47752, Dec. 6, 1984, as amended at 66 FR 57335, Nov. 14, 2001]



Sec. 960.3-2-1  Site screening for potentially acceptable sites.

    To identify potentially acceptable sites for the development of 
other than the first repository, the process shall begin with site-
screening activities that consider large land masses that contain rock 
formations of suitable depth, thickness, and lateral extent and have 
structural, hydrologic, and tectonic features favorable for waste 
containment and isolation. Within those large land masses, subsequent 
site-screening activities shall focus on successively smaller and 
increasingly more suitable land units. This process shall be developed 
in consultation with the States that contain land units under 
consideration. It shall be implemented in a sequence of steps that first 
applies the applicable disqualifying conditions to eliminate land units 
on the basis of the evidence specified in

[[Page 690]]

Sec. 960.3-1-4-1 and in accordance with the application requirements 
set forth in appendix III of this part. After the disqualifying 
conditions have been applied, the favorable and potentially adverse 
conditions, as identified for each remaining land unit, shall be 
evaluated. The presence of favorable conditions shall favor a given land 
unit, while the presence of potentially adverse conditions shall 
penalize that land unit. Recognizing that favorable conditions and 
potentially adverse conditions for different technical guidelines can 
exist in the same land unit, the DOE shall seek to evaluate the 
composite favorability of each land unit. Land units that, in the 
aggregrate, exhibit potentially adverse conditions shall be deferred in 
favor of land units that exhibit favorable conditions. The siting 
provisions that require diversity of geohydrologic settings and rock 
types and consideration of regionality, as specified in Sec. Sec. 
960.3-1-1, 960.3-1-2, and 960.3-1-3, respectively, may be used to 
discriminate between land units and to establish the range of options in 
site screening. To identify a site as potentially acceptable, the 
evidence shall support a finding that the site is not disqualified in 
accordance with the application requirements set forth in appendix III 
of this part and shall support the decision by the DOE to proceed the 
continued investigation of the site on the basis of the favorable and 
potentially adverse conditions identified to date. In continuation of 
the screening process after such identification and before site 
nomination, the DOE may defer from further consideration land units or 
potentially acceptable sites or portions thereof on the basis of 
additional information or by the application of the siting provisions 
for diversity of geohydrologic settings, diversity of rock types, and 
regionality (Sec. Sec. 960.3-1-1, 960.3-1-2, and 960.3-1-3, 
respectively). The deferral of potentially acceptable sites will be 
described in the environmental assessments that accompany the nomination 
of at least five sites as suitable for characterization. In order to 
identify potentially acceptable sites for the second and subsequent 
repositories, the Secretary shall first identify the State within which 
the site is located in a decision-basis document that describes the 
process and the considerations that led to the identification of such 
site and that has been issued previously in draft for review and comment 
by such State. Second, when such document is final, the Secretary shall 
notify the Governor and the legislature of that State and the tribal 
council of any affected Indian tribe of the potentially acceptable site.



Sec. 960.3-2-2  Nomination of sites as suitable for characterization.

    From the sites identified as potentially acceptable, the Secretary 
shall nominate at least five sites determined suitable for site 
characterization for the selection of each repository site. For the 
second repository, at least three of the sites shall not have been 
nominated previously. Any site nominated as suitable for 
characterization for the first repository, but not recommended as a 
candidate site for characterization, may not be nominated as suitable 
for characterization for the second repository. The nomination of a site 
as suitable for characterization shall be accompanied by an 
environmental assessment as specified in section 112(b)(1)(E) of the 
Act. Such nomination shall be based on evaluations in accordance with 
the guidelines of this part, and the bases and relevant details of those 
evaluations and of the decision processes involved therein shall be 
contained in the environmental assessment for the site in the manner 
specified in this subpart. The evidence required to support such 
evaluations and siting decisions is specified in Sec. 960.3-1-4-2.



Sec. 960.3-2-2-1  Evaluation of all potentially acceptable sites.

    First, in considering sites for nomination, each of the potentially 
acceptable sites shall be evaluated on the basis of the disqualifying 
conditions specified in the technical guidelines of subparts C and D, in 
accordance with the application requirements set forth in appendix III 
of this part. This evaluation shall support a finding by the DOE that 
such sites is not disqualified.

[[Page 691]]



Sec. 960.3-2-2-2  Selection of sites within geohydrologic settings.

    Second, the siting provision requiring diversity of geohydrologic 
settings, as specified in Sec. 960.3-1-1, shall be applied to group all 
potentially acceptable sites according to their geohydrologic settings. 
Third, for those geohydrologic settings that contain more than one 
potentially acceptable site, the preferred site shall be selected on the 
basis of a comparative evaluation of all potentially acceptable sites in 
that setting. This evaluation shall consider the distinguishing 
characteristics displayed by the potentially acceptable sites within the 
setting and the related guidelines from subparts C and D. That is, the 
appropriate guidelines shall be selected primarily on the basis of the 
kinds of evidence among sites for which distinguishing characteristics 
can be identified. Such comparative evaluation shall be made on the 
basis of the qualifying conditions for those guidelines, considering, on 
balance, the favorable conditions and potentially adverse conditions 
identified at each site. Due consideration shall also be given to the 
siting provisions specifying the basis for site evaluations in Sec. 
960.3-1-5, to the extent practicable, and diversity of rock types in 
Sec. 960.3-1-2, if the circumstances so apply. If less than five 
geohydrologic settings are available for consideration, the above 
process shall be used to select two or more preferred sites from those 
settings that contain more than one potentially acceptable site, as 
required to obtain the number of sites to be nominated as suitable for 
characterization. For purposes of the second and subsequent 
repositories, due consideration shall also be given to the siting 
provision for regionality as specified in Sec. 960.3-1-3. Fourth, each 
preferred site within a geohydrologic setting shall be evaluated as to 
whether such site is suitable for the development of a repository under 
the qualifying condition of each guideline specified in subparts C and D 
that does not require site characterization as a prerequisite for the 
application of such guideline. The guidelines considered appropriate to 
this evaluation have been selected on the basis of their exclusion under 
the definition of site characterization as specified in Sec. 960.2. 
Although the final application of these guidelines, in accordance with 
the provisions set forth in appendix III of this part, does not require 
geologic data from site-characterization activities, such application 
will require additional data beyond those specified in appendix IV of 
this part, which will be obtained concurrently with site 
characterization. Such guidelines include those specified in Sec. 
960.4-2-8-2 (Site Ownership and Control) of subpart C; Sec. Sec. 960.5-
1(a)(1) and 960.5-1(a)(2) of subpart D (preclosure system guidelines for 
radiological safety and environmental quality, socioeconomics, and 
transportation); and Sec. Sec. 960.5-2-1 through 960.5-2-7 of subpart D 
(Population Density and Distribution, Site Ownership and Control, 
Meteorology, Offsite Installations and Operations, Environmental 
Quality, Socioeconomic Impacts, and Transportation). This evaluation 
shall consider on balance those favorable conditions and potentially 
adverse conditions identified as such at a preferred site in relation to 
the qualifying condition of each such guideline. For each such 
guideline, this evaluation shall focus on the suitability of the site 
for the development of a repository by considering the activities from 
the start of site characterization through decommissioning and shall 
support a finding by the DOE in accordance with the application 
requirements set forth in appendix III of this part. Fifth, each 
preferred site within a geohydrologic setting shall be evaluated as to 
whether such site is suitable for site characterization under the 
qualifying conditions of those guidelines specified in subparts C and D 
that require characterization (i.e., subsurface geologic, hydrologic, 
and geochemical data gathering). Such guidelines include those specified 
in Sec. 960.4-1(a) (postclosure system guideline); Sec. Sec. 960.4-2-1 
through 960.4-2-8-1 of subpart C (Geohydrology, Geochemistry, Rock 
Characteristics, Climatic Changes, Erosion, Dissolution, Tectonics, 
Human Interference, and Natural Resources); Sec. 960.5-1(a)(3) 
(preclosure system guideline for ease and cost of siting, construction, 
operation, and closure); and Sec. 960.5-2-8 through 960.5-2-11 of 
subpart D (Surface Characteristics, Rock Characteristics,

[[Page 692]]

Hydrology, and Tectonics). This evaluation shall consider on balance the 
favorable conditions and potentially adverse conditions identified as 
such at a preferred site in relation to the qualifying condition of each 
such guideline. For each such guideline, this evaluation shall focus on 
the suitability of the site for characterization and shall support a 
finding by the DOE in accordance with the application requirements set 
forth in appendix III of this part.



Sec. 960.3-2-2-3  Comparative evaluation of all sites proposed for nomination.

    Sixth, for those potentially acceptable sites to be proposed for 
nomination, as determined by the process specified in Sec. 960.3-2-2-2, 
a reasonable comparative evaluation of each such site with all other 
such sites shall be made. For each site and for each guideline specified 
in subparts C and D, the DOE shall summarize the evaluations and 
findings specified under Sec. 960.3-2-2-1 and under the fourth and 
fifth provisions of Sec. 960.3-2-2-2. Each such summary shall allow 
comparisons to be made among sites on this basis of each guideline.



Sec. 960.3-2-2-4  The environmental assessment.

    To document the process specified above, and in compliance with 
section 112(b)(1)(E) of the Act, an environmental assessment shall be 
prepared for each site proposed for nomination as suitable for 
characterization. Each such environmental assessment shall describe the 
decision process by which such site was proposed for nomination as 
described in the preceding six steps and shall contain or reference the 
evidence that supports such process according to the requirements of 
Sec. 960.3-1-4-2 and appendix IV of this part. As specified in the Act, 
each environmental assessment shall include an evaluation of the effects 
of the site-characterization activities at the site on public health and 
safety and the environment; a discussion of alternative activities 
related to site characterization that may be taken to avoid such impact; 
and an assessment of the regional and local impacts of locating a 
repository at the site. The draft environmental assessment for each site 
proposed for nomination as suitable for characterization shall be made 
available by the DOE for public comment after the Secretary has notified 
the Governor and legislature of the State in which the site is located, 
and the governing body of the affected Indian tribe where such site is 
located, of such impending availability.



Sec. 960.3-2-2-5  Formal site nomination.

    After the final environmental assessments have been prepared, the 
Secretary shall nominate at least five sites that he determines suitable 
for site characterization for the selection of a repository site, and, 
in so doing, he shall cause to have published in the Federal Register a 
notice specifying the sites so nominated and announcing the availability 
of the final environmental assessments for such sites. This 
determination by the Secretary shall be based on the final environmental 
assessments for such sites, including, in particular, consideration of 
the available evidence, evaluations, and the resultant findings for the 
guidelines of subparts C and D so specified under the fourth and fifth 
provisions of Sec. 960.3-2-2-2. Before nominating a site, the Secretary 
shall notify the Governor and legislature of the State in which the site 
is located, and the governing body of the affected Indian tribe where 
such site is located, of such nomination and the basis for such 
nomination.



Sec. 960.3-2-3  Recommendation of sites for characterization.

    After the nomination of at least five sites as suitable for site 
characterization for the selection of the first repository, the 
Secretary shall recommend in writing to the President not less than 
three candidate sites for such characterization. The recommendation 
decision shall be based on the available geophysical, geologic, 
geochemical, and hydrologic data; other information; associated 
evaluations and findings reported in the environmental assessments 
accompanying the nominations; and the considerations specified below, 
unless the Secretary certifies that such available data will not be

[[Page 693]]

adequate to satisfy applicable requirements of the Act in the absence of 
further preliminary borings or excavations. On the basis of the evidence 
and in accordance with the siting provision specifying the basis for 
site evaluations in Sec. 960.3-1-5, the sites nominated as suitable for 
characterization shall be considered as to their order of preference as 
candidate sites for characterization. Subsequently, the siting 
provisions specifying diversity of geohydrologic settings, diversity of 
rock types, and, after the first repository, consideration of 
regionality in Sec. Sec. 960.3-1-1, 960.3-1-2, and 960.3-1-3, 
respectively, shall be considered to determine a final order of 
preference for the characterization of such sites. Considering this 
order of preference together with the available siting alternatives 
specified in the Act, the sites recommended as candidate sites for 
characterization shall offer, on balance, the most advantageous 
combination of characteristics and conditions for the successful 
development of repositories at such sites. The process for the 
recommendation of sites as candidate sites for characterization for the 
selection of any subsequent repository shall be the same as that 
specified above for the first repository.



Sec. 960.3-3  Consultation.

    The DOE shall provide to designated officials of the affected States 
and to the governing bodies of any affected Indian tribe timely and 
complete information regarding determinations or plans made with respect 
to the siting, site characterization, design, development, construction, 
operation, closure, decommissioning, licensing, or regulation of a 
repository. Written responses to written requests for information from 
the designated officials of affected States or affected Indian tribes 
will be provided within 30 days after receipt of the written requests. 
In performing any study of an area for the purpose of determining the 
suitability of such area for the development of a repository, the DOE 
shall consult and cooperate with the Governor and the legislature of an 
affected State and the governing body of an affected Indian tribe in an 
effort to resolve concerns regarding public health and safety, 
environmental impacts, socioeconomic impacts, and technical aspects of 
the siting process. After notifying affected States and affected Indian 
tribes that potentially acceptable sites have been identified, or that a 
site has been approved for characterization, the DOE shall seek to enter 
into binding written agreements with such affected States or affected 
Indian tribes in accordance with the requirements of the Act. The DOE 
shall also consult, as appropriate, with other Federal agencies.



Sec. 960.3-4  Environmental impacts.

    Environmental impacts shall be considered by the DOE throughout the 
site characterization, site selection, and repository development 
process. The DOE shall mitigate significant adverse environmental 
impacts, to the extent practicable, during site characterization and 
repository construction, operation, closure, and decommissioning.



                    Subpart C_Postclosure Guidelines



Sec. 960.4  Postclosure guidelines.

    The guidelines in this subpart specify the factors to be considered 
in evaluating and comparing sites on the basis of expected repository 
performance after closure. The postclosure guidelines are separated into 
a system guideline and eight technical guidelines. The system guideline 
establishes waste containment and isolation requirements that are based 
on NRC and EPA regulations. These requirements must be met by the 
repository system, which contains natural barriers and engineered 
barriers. The engineered barriers will be designed to complement the 
natural barriers, which provide the primary means for waste isolation.



Sec. 960.4-1  System guideline.

    (a) Qualifying Condition. The geologic setting at the site shall 
allow for the physical separation of radioactive waste from the 
accessible environment after closure in accordance with the requirements 
of 40 CFR part 191, subpart B, as implemented by the provisions of 10 
CFR part 60. The geologic setting at the site will allow for the use of 
engineered barriers to ensure compliance with the requirements of 40 CFR 
part

[[Page 694]]

191 and 10 CFR part 60 (see appendix I of this part).



Sec. 960.4-2  Technical guidelines.

    The technical guidelines in this subpart set forth qualifying, 
favorable, potentially adverse, and, in five guidelines, disqualifying 
conditions on the characteristics, processes, and events that may 
influence the performance of a repository system after closure. The 
favorable conditions and the potentially adverse conditions under each 
guideline are not listed in any assumed order of importance. Potentially 
adverse conditions will be considered if they affect waste isolation 
within the controlled area even though such conditions may occur outside 
the controlled area. The technical guidelines that follow establish 
conditions that shall be considered in determining compliance with the 
qualifying condition of the postclosure system guideline. For each 
technical guideline, an evaluation of qualification or disqualification 
shall be made in accordance with the requirements specified in subpart 
B.



Sec. 960.4-2-1  Geohydrology.

    (a) Qualifying condition. The present and expected geohydrologic 
setting of a site shall be compatible with waste containment and 
isolation. The geohydrologic setting, considering the characteristics of 
and the processes operating within the geologic setting, shall permit 
compliance with (1) the requirements specified in Sec. 960.4-1 for 
radionuclide releases to the accessible environment and (2) the 
requirements specified in 10 CFR 60.113 for radionuclide releases from 
the engineered-barrier system using reasonably available technology.
    (b) Favorable conditions. (1) Site conditions such that the pre-
waste-emplacement ground-water travel time along any path of likely 
radionuclide travel from the disturbed zone to the accessible 
environment would be more than 10,000 years.
    (2) The nature and rates of hydrologic processes operating within 
the geologic setting during the Quaternary Period would, if continued 
into the future, not affect or would favorably affect the ability of the 
geologic repository to isolate the waste during the next 100,000 years.
    (3) Sites that have stratigraphic, structural, and hydrologic 
features such that the geohydrologic system can be readily characterized 
and modeled with reasonable certainty.
    (4) For disposal in the saturated zone, at least one of the 
following pre-waste-emplacement conditions exists:
    (i) A host rock and immediately surrounding geohydrologic units with 
low hydraulic conductivities.
    (ii) A downward or predominantly horizontal hydraulic gradient in 
the host rock and in the immediately surrounding geohydrologic units.
    (iii) A low hydraulic gradient in and between the host rock and the 
immediately surrounding geohydrologic units.
    (iv) High effective porosity together with low hydraulic 
conductivity in rock units along paths of likely radionuclide travel 
between the host rock and the accessible environment.
    (5) For disposal in the unsaturated zone, at least one of the 
following pre-waste-emplacement conditions exists:
    (i) A low and nearly constant degree of saturation in the host rock 
and in the immediately surrounding geohydrologic units.
    (ii) A water table sufficiently below the underground facility such 
that the fully saturated voids continuous with the water table do not 
encounter the host rock.
    (iii) A geohydrologic unit above the host rock that would divert the 
downward infiltration of water beyond the limits of the emplaced waste.
    (iv) A host rock that provides for free drainage.
    (v) A climatic regime in which the average annual historical 
precipitation is a small fraction of the average annual potential 
evapotranspiration.

    Note: The DOE will, in accordance with the general principles set 
forth in Sec. 960.1 of these regulations, revise the guidelines as 
necessary, to ensure consistency with the final NRC regulations on the 
unsaturated zone, which were published as a proposed rule on February 
16, 1984, in 49 FR 5934.

    (c) Potentially adverse conditions. (1) Expected changes in 
geohydrologic

[[Page 695]]

conditions--such as changes in the hydraulic gradient, the hydraulic 
conductivity, the effective porosity, and the ground-water flux through 
the host rock and the surrounding geohydrologic units--sufficient to 
significantly increase the transport of radionuclides to the accessible 
environment as compared with pre-waste-emplacement conditions.
    (2) The presence of ground-water sources, suitable for crop 
irrigation or human consumption without treatment, along ground-water 
flow paths from the host rock to the accessible environment.
    (3) The presence in the geologic setting of stratigraphic or 
structural features--such as dikes, sills, faults, shear zones, folds, 
dissolution effects, or brine pockets--if their presence could 
significantly contribute to the difficulty of characterizing or modeling 
the geohydrologic system.
    (d) Disqualifying condition. A site shall be disqualified if the 
pre-waste-emplacement ground-water travel time from the disturbed zone 
to the accessible environment is expected to be less than 1,000 years 
along any pathway of likely and significant radionuclide travel.



Sec. 960.4-2-2  Geochemistry.

    (a) Qualifying condition. The present and expected geochemical 
characteristics of a site shall be compatible with waste containment and 
isolation. Considering the likely chemical interactions among 
radionuclides, the host rock, and the ground water, the characteristics 
of and the processes operating within the geologic setting shall permit 
compliance with (1) the requirements specified in Sec. 960.4-1 for 
radionuclide releases to the accessible environment and (2) the 
requirements specified in 10 CFR 60.113 for radionuclide releases from 
the engineered-barrier system using reasonably available technology.
    (b) Favorable conditions. (1) The nature and rates of the 
geochemical processes operating within the geologic setting during the 
Quaternary Period would, if continued into the future, not affect or 
would favorably affect the ability of the geologic repository to isolate 
the waste during the next 100,000 years.
    (2) Geochemical conditions that promote the precipitation, diffusion 
into the rock matrix, or sorption of radionuclides; inhibit the 
formation of particulates, colloids, inorganic complexes, or organic 
complexes that increase the mobility of radionuclides; or inhibit the 
transport of radionuclides by particulates, colloids, or complexes.
    (3) Mineral assemblages that, when subjected to expected repository 
conditions, would remain unaltered or would alter to mineral assemblages 
with equal or increased capability to retard radionuclide transport.
    (4) A combination of expected geochemical conditions and a 
volumetric flow rate of water in the host rock that would allow less 
than 0.001 percent per year of the total radionuclide inventory in the 
repository at 1,000 years to be dissolved.
    (5) Any combination of geochemical and physical retardation 
processes that would decrease the predicted peak cumulative releases of 
radionuclides to the accessible environment by a factor of 10 as 
compared to those predicted on the basis of ground-water travel time 
without such retardation.
    (c) Potentially adverse conditions. (1) Ground-water conditions in 
the host rock that could affect the solubility or the chemical 
reactivity of the engineered-barrier system to the extent that the 
expected repository performance could be compromised.
    (2) Geochemical processes or conditions that could reduce the 
sorption of radionuclides or degrade the rock strength.
    (3) Pre-waste-emplacement ground-water conditions in the host rock 
that are chemically oxidizing.



Sec. 960.4-2-3  Rock characteristics.

    (a) Qualifying condition. The present and expected characteristics 
of the host rock and surrounding units shall be capable of accommodating 
the thermal, chemical, mechanical, and radiation stresses expected to be 
induced by repository construction, operation, and closure and by 
expected interactions among the waste, host rock, ground water, and 
engineered components. The characteristics of and the

[[Page 696]]

processes operating within the geologic setting shall permit compliance 
with (1) the requirements specified in Sec. 960.4-1 for radionuclide 
releases to the accessible environment and (2) the requirements set 
forth in 10 CFR 60.113 for radionuclide releases from the engineered-
barrier system using reasonably available technology.
    (b) Favorable Conditions. (1) A host rock that is sufficiently thick 
and laterally extensive to allow significant flexibility in selecting 
the depth, configuration, and location of the underground facility to 
ensure isolation.
    (2) A host rock with a high thermal conductivity, a low coefficient 
of thermal expansion, or sufficient ductility to seal fractures induced 
by repository construction, operation, or closure or by interactions 
among the waste, host rock, ground water, and engineered components.
    (c) Potentially adverse conditions. (1) Rock conditions that could 
require engineering measures beyond reasonably available technology for 
the construction, operation, and closure of the repository, if such 
measures are necessary to ensure waste containment or isolation.
    (2) Potential for such phenomena as thermally induced fractures, the 
hydration or dehydration of mineral components, brine migration, or 
other physical, chemical, or radiation-related phenomena that could be 
expected to affect waste containment or isolation.
    (3) A combination of geologic structure, geochemical and thermal 
properties, and hydrologic conditions in the host rock and surrounding 
units such that the heat generated by the waste could significantly 
decrease the isolation provided by the host rock as compared with pre-
waste-emplacement conditions.



Sec. 960.4-2-4  Climatic changes.

    (a) Qualifying condition. The site shall be located where future 
climatic conditions will not be likely to lead to radionuclide releases 
greater than those allowable under the requirements specified in Sec. 
960.4-1. In predicting the likely future climatic conditions at a site, 
the DOE will consider the global, regional, and site climatic patterns 
during the Quaternary Period, considering the geomorphic evidence of the 
climatic conditions in the geologic setting.
    (b) Favorable conditions. (1) A surface-water system such that 
expected climatic cycles over the next 100,000 years would not adversely 
affect waste isolation.
    (2) A geologic setting in which climatic changes have had little 
effect on the hydrologic system throughout the Quaternary Period.
    (c) Potentially adverse conditions. (1) Evidence that the water 
table could rise sufficiently over the next 10,000 years to saturate the 
underground facility in a previously unsaturated host rock.
    (2) Evidence that climatic changes over the next 10,000 years could 
cause perturbations in the hydraulic gradient, the hydraulic 
conductivity, the effective porosity, or the ground-water flux through 
the host rock and the surrounding geohydrologic units, sufficient to 
significantly increase the transport of radionuclides to the accessible 
environment.



Sec. 960.4-2-5  Erosion.

    (a) Qualifying condition. The site shall allow the underground 
facility to be placed at a depth such that erosional processes acting 
upon the surface will not be likely to lead to radionuclide releases 
greater than those allowable under the requirements specified in Sec. 
960.4-1. In predicting the likelihood of potentially disruptive 
erosional processes, the DOE will consider the climatic, tectonic, and 
geomorphic evidence of rates and patterns of erosion in the geologic 
setting during the Quaternary Period.
    (b) Favorable conditions. (1) Site conditions that permit the 
emplacement of waste at a depth of at least 300 meters below the 
directly overlying ground surface.
    (2) A geologic setting where the nature and rates of the erosional 
processes that have been operating during the Quaternary Period are 
predicted to have less than one chance in 10,000 over the next 10,000 
years of leading to releases of radionuclides to the accessible 
environment.
    (3) Site conditions such that waste exhumation would not be expected 
to

[[Page 697]]

occur during the first one million years after repository closure.
    (c) Potentially adverse conditions. (1) A geologic setting that 
shows evidence of extreme erosion during the Quaternary Period.
    (2) A geologic setting where the nature and rates of geomorphic 
processes that have been operating during the Quaternary Period could, 
during the first 10,000 years after closure, adversely affect the 
ability of the geologic repository to isolate the waste.
    (d) Disqualifying condition. The site shall be disqualified if site 
conditions do not allow all portions of the underground facility to be 
situated at least 200 meters below the directly overlying ground 
surface.



Sec. 960.4-2-6  Dissolution.

    (a) Qualifying condition. The site shall be located such that any 
subsurface rock dissolution will not be likely to lead to radionuclide 
releases greater than those allowable under the requirements specified 
in Sec. 960.4-1. In predicting the likelihood of dissolution within the 
geologic setting at a site, the DOE will consider the evidence of 
dissolution within that setting during the Quaternary Period, including 
the locations and characteristics of dissolution fronts or other 
dissolution features, if identified.
    (b) Favorable condition. No evidence that the host rock within the 
site was subject to significant dissolution during the Quaternary 
Period.
    (c) Potentially adverse condition. Evidence of dissolution within 
the geologic setting--such as breccia pipes, dissolution cavities, 
significant volumetric reduction of the host rock or surrounding strata, 
or any structural collapse--such that a hydraulic interconnection 
leading to a loss of waste isolation could occur.
    (d) Disqualifying condition. The site shall be disqualified if it is 
likely that, during the first 10,000 years after closure, active 
dissolution, as predicted on the basis of the geologic record, would 
result in a loss of waste isolation.



Sec. 960.4-2-7  Tectonics.

    (a) Qualifying condition. The site shall be located in a geologic 
setting where future tectonic processes or events will not be likely to 
lead to radionuclide releases greater than those allowable under the 
requirements specified in Sec. 960.4-1. In predicting the likelihood of 
potentially disruptive tectonic processes or events, the DOE will 
consider the structural, stratigraphic, geophysical, and seismic 
evidence for the nature and rates of tectonic processes and events in 
the geologic setting during the Quaternary Period.
    (b) Favorable condition. The nature and rates of igneous activity 
and tectonic processes (such as uplift, subsidence, faulting, or 
folding), if any, operating within the geologic setting during the 
Quaternary Period would, if continued into the future, have less than 
one chance in 10,000 over the first 10,000 years after closure of 
leading to releases of radionuclides to the accessible environment.
    (c) Potentially adverse conditions. (1) Evidence of active folding, 
faulting, diapirism, uplift, subsidence, or other tectonic processes or 
igneous activity within the geologic setting during the Quaternary 
Period.
    (2) Historical earthquakes within the geologic setting of such 
magnitude and intensity that, if they recurred, could affect waste 
containment or isolation.
    (3) Indications, based on correlations of earthquakes with tectonic 
processes and features, that either the frequency of occurrence or the 
magnitude of earthquakes within the geologic setting may increase.
    (4) More-frequent occurrences of earthquakes or earthquakes of 
higher magnitude than are representative of the region in which the 
geologic setting is located.
    (5) Potential for natural phenomena such as landslides, subsidence, 
or volcanic activity of such magnitudes that they could create large-
scale surface-water impoundments that could change the regional ground-
water flow system.
    (6) Potential for tectonic deformations--such as uplift, subsidence, 
folding, or faulting--that could adversely affect the regional ground-
water flow system.
    (d) Disqualifying condition. A site shall be disqualified if, based 
on the geologic record during the Quaternary Period, the nature and 
rates of fault movement or other ground motion are

[[Page 698]]

expected to be such that a loss of waste isolation is likely to occur.



Sec. 960.4-2-8  Human interference.

    The site shall be located such that activities by future generations 
at or near the site will not be likely to affect waste containment and 
isolation. In assessing the likelihood of such activities, the DOE will 
consider the estimated effectiveness of the permanent markers and 
records required by 10 CFR part 60, taking into account site-specific 
factors, as stated in Sec. Sec. 960.4-2-8-1 and 960.4-2-8-2, that could 
compromise their continued effectiveness.



Sec. 960.4-2-8-1  Natural resources.

    (a) Qualifying condition. This site shall be located such that--
considering permanent markers and records and reasonable projections of 
value, scarcity, and technology--the natural resources, including ground 
water suitable for crop irrigation or human consumption without 
treatment, present at or near the site will not be likely to give rise 
to interference activities that would lead to radionuclide releases 
greater than those allowable under the requirements specified in Sec. 
960.4-1.
    (b) Favorable conditions. (1) No known natural resources that have 
or are projected to have in the foreseeable future a value great enough 
to be considered a commercially extractable resource.
    (2) Ground water with 10,000 parts per million or more of total 
dissolved solids along any path of likely radionuclide travel from the 
host rock to the accessible environment.
    (c) Potentially adverse conditions. (1) Indications that the site 
contains naturally occurring materials, whether or not actually 
identified in such form that (i) economic extraction is potentially 
feasible during the foreseeable future or (ii) such materials have a 
greater gross value, net value, or commercial potential than the average 
for other areas of similar size that are representative of, and located 
in, the geologic setting.
    (2) Evidence of subsurface mining or extraction for resources within 
the site if it could affect waste containment or isolation.
    (3) Evidence of drilling within the site for any purpose other than 
repository-site evaluation to a depth sufficient to affect waste 
containment and isolation.
    (4) Evidence of a significant concentration of any naturally 
occurring material that is not widely available from other sources.
    (5) Potential for foreseeable human activities--such as ground-water 
withdrawal, extensive irrigation, subsurface injection of fluids, 
underground pumped storage, military activities, or the construction of 
large-scale surface-water impoundments--that could adversely change 
portions of the ground-water flow system important to waste isolation.
    (d) Disqualifying conditions. A site shall be disqualified if--
    (1) Previous exploration, mining, or extraction activities for 
resources of commercial importance at the site have created significant 
pathways between the projected underground facility and the accessible 
environment; or
    (2) Ongoing or likely future activities to recover presently 
valuable natural mineral resources outside the controlled area would be 
expected to lead to an inadvertent loss of waste isolation.



Sec. 960.4-2-8-2  Site ownership and control.

    (a) Qualifying condition. The site shall be located on land for 
which the DOE can obtain, in accordance with the requirements of 10 CFR 
part 60, ownership, surface and subsurface rights, and control of access 
that are required in order that potential surface and subsurface 
activities as the site will not be likely to lead to radionuclide 
releases greater than those allowable under the requirements specified 
in Sec. 960.4-1.
    (b) Favorable condition. Present ownership and control of land and 
all surface and subsurface rights by the DOE.
    (c) Potentially adverse condition. Projected land-ownership 
conflicts that cannot be successfully resolved through voluntary 
purchase-sell agreements, nondisputed agency-to-agency transfers of 
title, or Federal condemnation proceedings.

[[Page 699]]



                     Subpart D_Preclosure Guidelines



Sec. 960.5  Preclosure guidelines.

    The guidelines in this subpart specify the factors to be considered 
in evaluating and comparing sites on the basis of expected repository 
performance before closure. The preclosure guidelines are separated into 
three system guidelines and eleven technical guidelines.



Sec. 960.5-1  System guidelines.

    (a) Qualifying conditions--(1) Preclosure radiological safety. Any 
projected radiological exposures of the general public and any projected 
releases of radioactive materials to restricted and unrestricted areas 
during repository operation and closure shall meet the applicable safety 
requirements set forth in 10 CFR part 20, 10 CFR part 60, and 40 CFR 
191, subpart A (see appendix II of this part).
    (2) Environment, socioeconomics, and transportation. During 
repository siting, construction, operation, closure, and decommissioning 
the public and the environment shall be adequately protected from the 
hazards posed by the disposal of radioactive waste.
    (3) Ease and cost of siting, construction, operation, and closure. 
Repository siting, construction, operation, and closure shall be 
demonstrated to be technically feasible on the basis of reasonably 
available technology, and the associated costs shall be demonstrated to 
be reasonable relative to other available and comparable siting options.



Sec. 960.5-2  Technical guidelines.

    The technical guidelines in this subpart set forth qualifying, 
favorable, potentially adverse, and, in seven guidelines, disqualifying 
conditions for the characteristics, processes, and events that influence 
the suitability of a site relative to the preclosure system guidelines. 
These conditions are separated into three main groups: Preclosure 
radiological safety; environment, socioeconomics, and transportation; 
and ease and cost of siting, construction, operation, and closure. The 
first group includes conditions on population density and distribution, 
site ownership and control, meteorology, and offsite installations and 
operations. The second group includes conditions related to 
environmental quality and socioeconomic impacts in areas potentially 
affected by a repository and to the transportation of waste to a 
repository site. The third group includes conditions on the surface 
characteristics of the site, the characteristics of the host rock and 
surrounding strata, hydrology, and tectonics. The individual technical 
guidelines within each group, as well as the favorable conditions and 
the potentially adverse conditions under each guideline, are not listed 
in any assumed order of importance. The technical guidelines that follow 
establish conditions that shall be considered in determining compliance 
with the qualifying conditions of the preclosure system guidelines. For 
each technical guideline, an evaluation of qualification or 
disqualification shall be made in accordance with the requirements 
specified in subpart B.

                     Preclosure Radiological Safety



Sec. 960.5-2-1  Population density and distribution.

    (a) Qualifying condition. The site shall be located such that, 
during repository operation and closure, (1) the expected average 
radiation dose to members of the public within any highly populated area 
will not be likely to exceed a small fraction of the limits allowable 
under the requirements specified in Sec. 960.5-1(a)(1), and (2) the 
expected radiation dose to any member of the public in an unrestricted 
area will not be likely to exceed the limit allowable under the 
requirements specified in Sec. 960.5-1(a)(1).
    (b) Favorable conditions. (1) A low population density in the 
general region of the site.
    (2) Remoteness of site from highly populated areas.
    (c) Potentially adverse conditions. (1) High residential, seasonal, 
or daytime population density within the projected site boundaries.
    (2) Proximity of the site to highly populated areas, or to areas 
having at least 1,000 individuals in an area 1 mile by 1 mile as defined 
by the most recent decennial count of the U.S. census.

[[Page 700]]

    (d) Disqualifying conditions. A site shall be disqualified if--
    (1) Any surface facility of a repository would be located in a 
highly populated area; or
    (2) Any surface facility of a repository would be located adjacent 
to an area 1 mile by 1 mile having a population of not less than 1,000 
individuals as enumerated by the most recent U.S. census; or
    (3) The DOE could not develop an emergency preparedness program 
which meets the requirements specified in DOE Order 5500.3 (Reactor and 
Non-Reactor Facility Emergency Planning, Preparedness, and Response 
Program for Department of Energy Operations) and related guides or, when 
issued by the NRC, in 10 CFR part 60, subpart I, ``Emergency Planning 
Criteria.''



Sec. 960.5-2-2  Site ownership and control.

    (a) Qualifying condition. The site shall be located on land for 
which the DOE can obtain, in accordance with the requirements of 10 CFR 
60.121, ownership, surface and subsurface rights, and control of access 
that are required in order that surface and subsurface activities during 
repository operation and closure will not be likely to lead to 
radionuclide releases to an unrestricted area greater than those 
allowable under the requirements specified in Sec. 960.5-1(a)(1).
    (b) Favorable condition. Present ownership and control of land and 
all surface and subsurface mineral and water rights by the DOE.
    (c) Potentially adverse condition. Projected land-ownership 
conflicts that cannot be successfully resolved through voluntary 
purchase-sell agreements, nondisputed agency-to-agency transfers of 
title, or Federal condemnation proceedings.



Sec. 960.5-2-3  Meteorology.

    (a) Qualifying condition. The site shall be located such that 
expected meteorological conditions during repository operation and 
closure will not be likely to lead to radionuclide releases to an 
unrestricted area greater than those allowable under the requirements 
specified in Sec. 960.5-1(a)(1).
    (b) Favorable condition. Prevailing meteorological conditions such 
that any radioactive releases to the atmosphere during repository 
operation and closure would be effectively dispersed, thereby reducing 
significantly the likelihood of unacceptable exposure to any member of 
the public in the vicinity of the repository.
    (c) Potentially adverse conditions. (1) Prevailing meteorological 
conditions such that radioactive emissions from repository operation of 
closure could be preferentially transported toward localities in the 
vicinity of the repository with higher population densities than are the 
average for the region.
    (2) History of extreme weather phenomena--such as hurricanes, 
tornadoes, severe floods, or severe and frequent winter storms--that 
could significantly affect repository operation or closure.



Sec. 960.5-2-4  Offsite installations and operations.

    (a) Qualifying condition. The site shall be located such that 
present projected effects from nearby industrial, transportation, and 
military installations and operations, including atomic energy defense 
activities, (1) will not significantly affect repository siting, 
construction, operation, closure, or decommissioning or can be 
accommodated by engineering measures and (2), when considered together 
with emissions from repository operation and closure, will not be likely 
to lead to radionuclide releases to an unrestricted area greater than 
those allowable under the requirements specified in Sec. 960.5-1(a)(1).
    (b) Favorable condition. Absence of contributing radioactive 
releases from other nuclear installations and operations that must be 
considered under the requirements of 40 CFR 191, subpart A.
    (c) Potentially adverse conditions. (1) The presence of nearby 
potentially hazardous installations or operations that could adversely 
affect repository operation or closure.
    (2) Presence of other nuclear installations and operations, subject 
to the requirements of 40 CFR part 190 or 40 CFR part 191, subpart A, 
with actual or projected releases near the maximum value permissible 
under those standards.
    (d) Disqualifying condition. A site shall be disqualified if atomic 
energy

[[Page 701]]

defense activities in proximity to the site are expected to conflict 
irreconcilably with repository siting, construction, operation, closure, 
or decommissioning.

             Environment, Socioeconomics, and Transportation



Sec. 960.5-2-5  Environmental quality.

    (a) Qualifying condition. The site shall be located such that (1) 
the quality of the environment in the affected area during this and 
future generations will be adequately protected during repository 
siting, construction, operation, closure, and decommissioning, and 
projected environmental impacts in the affected area can be mitigated to 
an acceptable degree, taking into account programmatic, technical, 
social, economic, and environmental factors; and (2) the requirements 
specified in Sec. 960.5-1(a)(2) can be met.
    (b) Favorable conditions. (1) Projected ability to meet, within time 
constraints, all Federal, State, and local procedural and substantive 
environmental requirements applicable to the site and the activities 
proposed to take place thereon.
    (2) Potential significant adverse environmental impacts to present 
and future generations can be mitigated to an insignificant level 
through the application of reasonable measures, taking into account 
programmatic, technical, social, economic, and environmental factors.
    (c) Potentially adverse conditions. (1) Projected major conflict 
with applicable Federal, State, or local environmental requirements.
    (2) Projected significant adverse environmental impacts that cannot 
be avoided or mitigated.
    (3) Proximity to, or projected significant adverse environmental 
impacts of the repository or its support facilities on, a component of 
the National Park System, the National Wildlife Refuge System, the 
National Wild and Scenic Rivers System, the National Wilderness 
Preservation System, or National Forest Land.
    (4) Proximity to, and projected significant adverse environmental 
impacts of the repository or its support facilities on, a significant 
State or regional protected resource area, such as a State park, a 
wildlife area, or a historical area.
    (5) Proximity to, and projected significant adverse environmental 
impacts of the repository and its support facilities on, a significant 
Native American resource, such as a major Indian religious site, or 
other sites of unique cultural interest.
    (6) Presence of critical habitats for threatened or endangered 
species that may be compromised by the repository or its support 
facilities.
    (d) Disqualifying conditions. Any of the following conditions shall 
disqualify a site:
    (1) During repository siting, construction, operation, closure, or 
decommissioning the quality of the environment in the affected area 
could not be adequately protected or projected environmental impacts in 
the affected area could not be mitigated to an acceptable degree, taking 
into account programmatic, technical, social, economic, and 
environmental factors.
    (2) Any part of the restricted area or repository support facilities 
would be located within the boundaries of a component of the National 
Park System, the National Wildlife Refuge System, the National 
Wilderness Preservation System, or the National Wild and Scenic Rivers 
System.
    (3) The presence of the restricted area or the repository support 
facilities would conflict irreconcilably with the previously designated 
resource-preservation use of a component of the National Park System, 
the National Wildlife Refuge System, the National Wilderness 
Preservation System, the National Wild and Scenic Rivers System, or 
National Forest Lands, or any comparably significant State protected 
resource that was dedicated to resource preservation at the time of the 
enactment of the Act.



Sec. 960.5-2-6  Socioeconomic impacts.

    (a) Qualifying condition. The site shall be located such that (1) 
any significant adverse social and/or economic impacts induced in 
communities and surrounding regions by repository siting, construction, 
operation, closure, and decommissioning can be offset by reasonable 
mitigation or compensation, as

[[Page 702]]

determined by a process of analysis, planning, and consultation among 
the DOE, affected State and local government jurisdictions, and affected 
Indian tribes; and (2) the requirements specified in Sec. 960.5-1(a)(2) 
can be met.
    (b) Favorable conditions. (1) Ability of an affected area to absorb 
the project-related population changes without significant disruptions 
of community services and without significant impacts on housing supply 
and demand.
    (2) Availability of an adequate labor force in the affected area.
    (3) Projected net increases in employment and business sales, 
improved community services, and increased government revenues in the 
affected area.
    (4) No projected substantial disruption of primary sectors of the 
economy of the affected area.
    (c) Potentially adverse conditions. (1) Potential for significant 
repository-related impacts on community services, housing supply and 
demand, and the finances of State and local government agencies in the 
affected area.
    (2) Lack of an adequate labor force in the affected area.
    (3) Need for repository-related purchase or acquisition of water 
rights, if such rights could have significant adverse impacts on the 
present or future development of the affected area.
    (4) Potential for major disruptions of primary sectors of the 
economy of the affected area.
    (d) Disqualifying condition. A site shall be disqualified if 
repository construction, operation, or closure would significantly 
degrade the quality, or significantly reduce the quantity, of water from 
major sources of offsite supplies presently suitable for human 
consumption or crop irrigation and such impacts cannot be compensated 
for, or mitigated by, reasonable measures.



Sec. 960.5-2-7  Transportation.

    (a) Qualifying condition. The site shall be located such that (1) 
the access routes constructed from existing local highways and railroads 
to the site (i) will not conflict irreconcilably with the previously 
designated use of any resource listed in Sec. 960.5-2-5(d) (2) and (3); 
(ii) can be designed and constructed using reasonably available 
technology; (iii) will not require transportation system components to 
meet performance standards more stringent than those specified in the 
applicable DOT and NRC regulations, nor require the development of new 
packaging containment technology; (iv) will allow transportation 
operations to be conducted without causing an unacceptable risk to the 
public or unacceptable environmental impacts, taking into account 
programmatic, technical, social, economic, and environmental factors; 
and (2) the requirements of Sec. 960.5-1(a)(2) can be met.
    (b) Favorable conditions. (1) Availability of access routes from 
local existing highways and railroads to the site which have any of the 
following characteristics:
    (i) Such routes are relatively short and economical to construct as 
compared to access routes for other comparable siting options.
    (ii) Federal condemnation is not required to acquire rights-of-way 
for the access routes.
    (iii) Cuts, fills, tunnels, or bridges are not required.
    (iv) Such routes are free of sharp curves or steep grades and are 
not likely to be affected by landslides or rock slides.
    (v) Such routes bypass local cities and towns.
    (2) Proximity to local highways and railroads that provide access to 
regional highways and railroads and are adequate to serve the repository 
without significant upgrading or reconstruction.
    (3) Proximity to regional highways, mainline railroads, or inland 
waterways that provide access to the national transportation system.
    (4) Availability of a regional railroad system with a minimum number 
of interchange points at which train crew and equipment changes would be 
required.
    (5) Total projected life-cycle cost and risk for transportation of 
all wastes designated for the repository site which are significantly 
lower than those for comparable siting options, considering locations of 
present and potential sources of waste, interim

[[Page 703]]

storage facilities, and other repositories.
    (6) Availability of regional and local carriers--truck, rail, and 
water--which have the capability and are willing to handle waste 
shipments to the repository.
    (7) Absence of legal impediment with regard to compliance with 
Federal regulations for the transportation of waste in or through the 
affected State and adjoining States.
    (8) Plans, procedures, and capabilities for response to radioactive 
waste transportation accidents in the affected State that are completed 
or being developed.
    (9) A regional meteorological history indicating that significant 
transportation disruptions would not be routine seasonal occurrences.
    (c) Potentially adverse conditions. (1) Access routes to existing 
local highways and railroads that are expensive to construct relative to 
comparable siting options.
    (2) Terrain between the site and existing local highways and 
railroads such that steep grades, sharp switchbacks, rivers, lakes, 
landslides, rock slides, or potential sources of hazard to incoming 
waste shipments will be encountered along access routes to the site.
    (3) Existing local highways and railroads that could require 
significant reconstruction or upgrading to provide adequate routes to 
the regional and national transportation system.
    (4) Any local condition that could cause the transportation-related 
costs, environmental impacts, or risk to public health and safety from 
waste transportation operations to be significantly greater than those 
projected for other comparable siting options.

      Ease and Cost of Siting, Construction, Operation, and Closure



Sec. 960.5-2-8  Surface characteristics.

    (a) Qualifying condition. The site shall be located such that, 
considering the surface characteristics and conditions of the site and 
surrounding area, including surface-water systems and the terrain, the 
requirements specified in Sec. 960.5-1(a)(3) can be met during 
repository siting, construction, operation, and closure.
    (b) Favorable conditions. (1) Generally flat terrain.
    (2) Generally well-drained terrain.
    (c) Potentially adverse condition. Surface characteristics that 
could lead to the flooding of surface or underground facilities by the 
occupancy and modification of flood plains, the failure of existing or 
planned man-made surface-water impoundments, or the failure of 
engineered components of the repository.



Sec. 960.5-2-9  Rock characteristics.

    (a) Qualifying condition. The site shall be located such that (1) 
the thickness and lateral extent and the characteristics and composition 
of the host rock will be suitable for accommodation of the underground 
facility; (2) repository construction, operation, and closure will not 
cause undue hazard to personnel; and (3) the requirements specified in 
Sec. 960.5-1(a)(3) can be met.
    (b) Favorable conditions. (1) A host rock that is sufficiently thick 
and laterally extensive to allow significant flexibility in selecting 
the depth, configuration, and location of the underground facility.
    (2) A host rock with characteristics that would require minimal or 
no artificial support for underground openings to ensure safe repository 
construction, operation, and closure.
    (c) Potentially adverse conditions. (1) A host rock that is suitable 
for repository construction, operation, and closure, but is so thin or 
laterally restricted that little flexibility is available for selecting 
the depth, configuration, or location of an underground facility.
    (2) In situ characteristics and conditions that could require 
engineering measures beyond reasonably available technology in the 
construction of the shafts and underground facility.
    (3) Geomechanical properties that could necessitate extensive 
maintenance of the underground openings during repository operation and 
closure.
    (4) Potential for such phenomena as thermally induced fracturing, 
the hydration and dehydration of mineral components, or other physical, 
chemical, or radiation-related phenomena

[[Page 704]]

that could lead to safety hazards or difficulty in retrieval during 
repository operation.
    (5) Existing faults, shear zones, pressurized brine pockets, 
dissolution effects, or other stratigraphic or structural features that 
could compromise the safety of repository personnel because of water 
inflow or construction problems.
    (d) Disqualifying condition. The site shall be disqualified if the 
rock characteristics are such that the activities associated with 
repository construction, operation, or closure are predicted to cause 
significant risk to the health and safety of personnel, taking into 
account mitigating measures that use reasonably available technology.



Sec. 960.5-2-10  Hydrology.

    (a) Qualifying condition. The site shall be located such that the 
geohydrologic setting of the site will (1) be compatible with the 
activities required for repository construction, operation, and closure; 
(2) not compromise the intended functions of the shaft liners and seals; 
and (3) permit the requirements specified in Sec. 960.5-1(a)(3) to be 
met.
    (b) Favorable conditions. (1) Absence of aquifers between the host 
rock and the land surface.
    (2) Absence of surface-water systems that could potentially cause 
flooding of the repository.
    (3) Availability of the water required for repository construction, 
operation, and closure.
    (c) Potentially adverse condition. Ground-water conditions that 
could require complex engineering measures that are beyond reasonably 
available technology for repository construction, operation, and 
closure.
    (d) Disqualifying condition. A site shall be disqualified if, based 
on expected ground-water conditions, it is likely that engineering 
measures that are beyond reasonably available technology will be 
required for exploratory-shaft construction or for repository 
construction, operation, or closure.



Sec. 960.5-2-11  Tectonics.

    (a) Qualifying Conditions. The site shall be located in a geologic 
setting in which any projected effects of expected tectonic phenomena or 
igneous activity on repository construction, operation, or closure will 
be such that the requirements specified in Sec. 960.5-1(a)(3) can be 
met.
    (b) Favorable Condition. The nature and rates of faulting, if any, 
within the geologic setting are such that the magnitude and intensity of 
the associated seismicity are significantly less than those generally 
allowable for the construction and operation of nuclear facilities.
    (c) Potentially Adverse Conditions. (1) Evidence of active faulting 
within the geologic setting.
    (2) Historical earthquakes or past man-induced seismicity that, if 
either were to recur, could produce ground motion at the site in excess 
of reasonable design limits.
    (3) Evidence, based on correlations of earthquakes with tectonic 
processes and features, (e.g., faults) within the geologic setting, that 
the magnitude of earthquakes at the site during repository construction, 
operation, and closure may be larger then predicted from historical 
seismicity.
    (d) Disqualifying Condition. A site shall be disqualified if, based 
on the expected nature and rates of fault movement or other ground 
motion, it is likely that engineering measures that are beyond 
reasonably available technology will be required for exploratory-shaft 
construction or for repository construction, operation, or closure.



 Sec. Appendix I to Part 960--NRC and EPA Requirements for Postclosure 
                         Repository Performance

    Under proposed 40 CFR part 191, subpart B--Environmental Standards 
for Disposal, Sec. 191.13, ``Containment Requirements'', specifies that 
for 10,000 years after disposal (a) releases of radioactive materials to 
the accessible environment that are estimated to have more than one 
chance in 100 of occurring over a 10,000 year period (``reasonably 
foreseeable releases'') shall be projected to be less than the 
quantities permitted by Table 2 of that regulation's appendix; and (b) 
for ``very unlikely releases'' (i.e., those estimated to have between 
one chance in 100 and one chance in 10,000 of occurring over a 10,000 
year period), the limits specified in Table 2 would be multiplied by 10. 
The basis for Table 2 is an upper limit on long term risks of 1,000 
health effects over 10,000 years for a repository containing wastes 
generated from 100,000 metric tons of heavy metal of reactor

[[Page 705]]

fuel. For releases involving more than one radionuclide, the allowed 
release for each radionuclide is reduced to the fraction of its limit 
that insures that the overall limit on harm is not exceeded. 
Additionally, to provide confidence needed for compliance with the 
containment requirements specified above, Sec. 191.14, ``Assurance 
Requirements'', specifies the disposal of radioactive waste in 
accordance with seven requirements, relating to prompt disposal of 
waste; selection and design of disposal systems to keep releases to the 
accessible environment as small as reasonably achievable; engineered and 
natural barriers; nonreliance on active institutional controls after 
closure; passive controls after closure; natural resource areas; and 
design of disposal systems to allow future recovery of wastes.
    The guidelines will be revised as necessary after the adoption of 
final regulations by the EPA.
    The implementation of 40 CFR part 191, subpart B is required by 10 
CFR 60.112. 10 CFR 60.113 establishes minimum conditions to be met for 
engineered components and ground-water flow; specifically: (1) 
Containment of radioactive waste within the waste packages will be 
substantially complete for a period to be determined by the NRC taking 
into account the factors specified in 10 CFR 60.113(b) provided that 
such period shall be not less than 300 years nor more than 1,000 years 
after permanent closure of the geologic repository; (2) the release rate 
of any radionuclide from the engineered barrier system following the 
containment period shall not exceed one part in 100,000 per year of the 
inventory of that radionuclide calculated to be present at 1,000 years 
following permanent closure, or such other fraction of the inventory as 
may be approved or specified by the NRC, provided that this requirement 
does not apply to any radionuclide which is released at a rate less than 
0.1% of the calculated total release rate limit. The calculated total 
release rate limit shall be taken to be one part in 100,000 per year of 
the inventory of radioactive waste originally emplaced in the 
underground facility that remains after 1,000 years of radioactive 
decay; and (3) the geologic repository shall be located so that pre-
waste-emplacement ground-water travel time along the fastest path of 
likely radionuclide travel from the disturbed zone to the accessible 
environment shall be at least 1,000 years or such other travel time as 
may be approved or specified by the NRC.
    The guidelines will be revised as necessary to ensure consistency 
with 10 CFR part 60.



 Sec. Appendix II to Part 960--NRC and EPA Requirements for Preclosure 
                         Repository Performance

    Under proposed 40 CFR part 191, subpart A--Environmental Standards 
for Management and Storage, Section 191.03, ``Standards for Normal 
Operations'', specifies: (1) That operations should be conducted so as 
to reduce exposure to members of the public to the extent reasonably 
achievable, taking into account technical, social, and economic 
considerations; and (2) that, except for variances permitted for unusual 
operations under Section 191.04 as an upper limit, normal operations 
shall be conducted in such a manner as to provide reasonable assurance 
that the combined annual dose equivalent to any member of the public due 
to: (i) operations covered by 40 CFR part 190, (ii) planned discharges 
of radioactive material to the general environment from operations 
covered by this subpart, and (iii) direct radiation from these 
operations; shall not exceed 25 millirems to the whole body, 75 
millirems to the thyroid, or 25 millirems to any other organ.
    The guidelines will be revised as necessary after the adoption of 
final regulations by the EPA.
    The implementation of 40 CFR part 191, subpart A and 10 CFR part 20 
is required by 10 CFR 60.111. 10 CFR 60.111 also specifies requirements 
for waste retrieval, if necessary, including considerations of design, 
backfilling, and schedule. 10 CFR part 20 establishes (a) exposure 
limits for operating personnel and (b) permissible concentrations of 
radionuclides in uncontrolled areas for air and water. The latter are 
generally less restrictive than 40 CFR 191, subpart A, but may be 
limiting under certain conditions (i.e., if used as a maximum for short 
durations rather than annual averages).
    The guidelines will be revised as necessary to ensure consistency 
with 10 CFR part 60.



 Sec. Appendix III to Part 960--Application of the System and Technical 
                  Guidelines During the Siting Process

    1. This appendix presents a table that specifies how the guidelines 
of subparts C and D are to be applied at certain decision points of the 
siting process. The decision points, as referenced in the table, are 
defined as follows:
    ``Potentially acceptable'' means the decision point at which a site 
is identified as potentially acceptable.

[[Page 706]]

    ``Nomination and recommendation'' means the decision point at which 
a site is nominated as suitable for characterization or recommended as a 
candidate site for characterization.
    2. The findings resulting from the application of a disqualifying 
condition for any particular guideline at a given decision point are 
denoted in the table by the numeral 1 or 2. The numerals 1 and 2 signify 
the types of findings that are required and are defined as follows:
    ``1'' means either of the following:
    (a) The evidence does not support a finding that the site is 
disqualified.

 or

    (b) The evidence supports a finding that the site is disqualified.
    ``2'' means either of the following:
    (a) The evidence supports a finding that the site is not 
disqualified on the basis of that evidence and is not likely to be 
disqualified.

 or

    (b) The evidence supports a finding that the site is disqualified or 
is likely to be disqualified.
    3. The findings resulting from the application of a qualifying 
condition for any particular guideline at a given decision point are 
denoted in the table by the numeral 3 or 4. The numerals 3 and 4 signify 
the types of findings that are required and are defined as follows:
    ``3'' means either of the following:
    (a) The evidence does not support a finding that the site is not 
likely to meet the qualifying condition.

 or

    (b) The evidence supports a finding that the site is not likely to 
meet the qualifying condition, and therefore the site is disqualified.
    4. If performance assessments are used to substantiate any of the 
above findings, those assessments shall include estimates of the effects 
of uncertainties in data and modeling.
    5. For both the disqualifying and qualifying conditions of any 
guideline, a higher finding (e.g., a ``2'' finding rather than ``1'') 
shall be made if there is sufficient evidence to support such a finding.

     Findings Resulting From the Application of the Qualifying and Disqualifying Conditions of the Technical
                                      Guidelines at Major Siting Decisions
----------------------------------------------------------------------------------------------------------------
                                                                                          Siting decision
                                                                                 -------------------------------
            Section 960                   Guideline              Condition          Potentially   Nomination and
                                                                                    acceptable    recommendation
----------------------------------------------------------------------------------------------------------------
4-1(a)............................  System...............  Qualifying...........  ..............               3
4-2-1(a)..........................  Geohydrology.........  ......do.............  ..............               3
4-2-1(d)..........................  ......do.............  Disqualifying........  ..............               1
4-2-2(a)..........................  Geochemistry.........  Qualifying...........  ..............               3
4-2-3(a)..........................  Rock Characteristics.  ......do.............  ..............               3
4-2-4(a)..........................  Climatic Changes.....  ......do.............  ..............               3
4-2-5(a)..........................  Erosion..............  ......do.............  ..............               3
4-2-5(d)..........................  ......do.............  Disqualifying........               1               1
4-2-6(a)..........................  Dissolution..........  Qualifying...........  ..............               3
4-2-6(d)..........................  ......do.............  Disqualifying........               1               1
4-2-7(a)..........................  Tectonics............  Qualifying...........  ..............               3
4-2-7(d)..........................  ......do.............  Disqualifying........               1               1
4-2-8-1(a)........................  Natural Resources....  Qualifying...........  ..............               3
4-2-8-1(d)(1).....................  ......do.............  Disqualifying........               1               1
4-2-8-1(d)(2).....................  ......do.............  ......do.............  ..............               1
4-2-8-2(a)........................  Site Ownership and     Qualifying...........  ..............               3
                                     Control.
5-1(a)(1).........................  System...............  ......do.............  ..............               3
5-1(a)(2).........................  ......do.............  ......do.............  ..............               3
5-1(a)(3).........................  ......do.............  ......do.............  ..............               3
5-2-1(a)..........................  Population Density     ......do.............  ..............               3
                                     and Distribution.
5-2-1(d)(1).......................  ......do.............  Disqualifying........               1               1
5-2-1(d)(2).......................  ......do.............  ......do.............               1               1
5-2-1(d)(3).......................  ......do.............  ......do.............  ..............               1
5-2-2(a)..........................  Site Ownership and     Qualifying...........  ..............               3
                                     Control.
5-2-3(a)..........................  Meteorology..........  ......do.............  ..............               3
5-2-4(a)..........................  Offsite Installations  ......do.............  ..............               3
                                     and Operations.
5-2-4(d)..........................  ......do.............  Disqualifying........               1               1
5-2-5(a)..........................  Environmental Quality  Qualifying...........  ..............               3
5-2-5(d)(1).......................  ......do.............  Disqualifying........  ..............               1
5-2-5(d)(2).......................  ......do.............  ......do.............               1               1
5-2-5(d)(3).......................  ......do.............  ......do.............               1               1
5-2-6(a)..........................  Socioeconomic Impacts  Qualifying...........  ..............               3
5-2-6(d)..........................  ......do.............  Disqualifying........  ..............               1

[[Page 707]]

 
5-2-7(a)..........................  Transportation.......  Qualifying...........  ..............               3
5-2-8(a)..........................  Surface                ......do.............  ..............               3
                                     Characteristics.
5-2-9(a)..........................  Rock Characteristics.  ......do.............  ..............               3
5-2-9(d)..........................  ......do.............  Disqualifying........  ..............               1
5-2-10(a).........................  Hydrology............  Qualifying...........  ..............               3
5-2-10(d).........................  ......do.............  Disqualifying........  ..............               1
5-2-11(a).........................  Tectonics............  Qualifying...........  ..............               3
5-2-11(d).........................  ......do.............  Disqualifying........               1               1
----------------------------------------------------------------------------------------------------------------


[49 FR 47752, Dec. 6, 1984, as amended at 66 FR 57335, Nov. 14, 2001]



Sec. Appendix IV to Part 960--Types of Information for the Nomination of 
                 Sites as Suitable for Characterization

    The types of information specified below are those that the DOE 
expects will be included in the evidence used for evaluations and 
applications of the guidelines of subparts C and D at the time of 
nomination of a site as suitable for characterization. The types of 
information listed under each guideline are considered to be the most 
significant for the evaluation of that guideline. However, the types of 
information listed under any particular guideline will be used, as 
necessary, for the evaluation of any other guideline. As stated in Sec. 
960.3-1-4-2, the DOE will use technically conservative assumptions or 
extrapolations of regional data, where necessary, to supplement this 
information. The information specified below will be supplemented with 
conceptual models, as appropriate, and analyses of uncertainties in the 
data.
    Before site-characterization studies and related nongeologic data 
gathering activities, the evidence is not expected to provide precise 
information, but, rather, to provide a reasonable basis for assessing 
the merits or shortcomings of the site against the guidelines of 
subparts C and D. Consequently, the types of information described below 
should be interpreted so as to accommodate differences among sites and 
differences in the information acquired before detailed studies.
    The specific information required for the guideline applications set 
forth in appendix III of this part is expected to differ from site to 
site because of site-specific factors, both with regard to favorable and 
potentially adverse conditions and with regard to the sources and 
reliability of the information. The types of information specified in 
this appendix will be used except where the findings set forth in 
appendix III of this part can be arrived at by reasonable alternative 
means or the information is not required for the particular site.

                     Section 960.4-2-1 Geohydrology.

    Description of the geohydrologic setting of the site, in context 
with its geologic setting, in order to estimate the pre-waste-
emplacement ground-water flow conditions. The types of information to 
support this description should include--
     Location and estimated hydraulic properties of 
aquifers, confining units, and aquitards.
     Potential areas and modes of recharge and 
discharge for aquifers.
     Regional potentiometric surfaces of aquifers.
     Likely flow paths from the repository to 
locations in the expected accessible environment, as based on regional 
data.
     Preliminary estimates of ground-water travel 
times along the likely flow paths from the repository to locations in 
the expected accessible environment.
     Current use of principal aquifers and State or 
local management plans for such use.

                     Section 960.4-2-2 Geochemistry.

    Description of the geochemical and hydrochemical conditions of the 
host rock, of the surrounding geohydrologic units, and along likely 
ground-water paths to locations in the expected accessible environment, 
in order to estimate the potential for the migration of radionuclides. 
The types of information to support this description should include--
     Petrology of the rocks.
     Mineralogy of the rocks and general 
characteristics of fracture fillings.
     Geochemical and mechanical stability of the 
minerals under expected repository conditions.
     General characteristics of the ground-water 
chemistry (e.g., reducing/oxidizing conditions and the principal ions 
that may

[[Page 708]]

affect the waste package or radionuclide behavior).
     Geochemical properties of minerals as related to 
radionuclide transport.

                 Section 960.4-2-3 Rock characteristics.

    Description of the geologic and geomechanical characteristics of the 
site, in context with the geologic setting, in order to estimate the 
capability of the host rock and surrounding rock units to accommodate 
the thermal, mechanical, chemical, and radiation stresses expected to be 
induced by repository construction, operation, and closure and by 
expected interactions among the waste, host rock, ground-water, and 
engineered components of the repository system. The types of information 
to support this description should include--
     Approximate geology and stratigraphy of the site, 
including the depth, thickness, and lateral extent of the host rock and 
surrounding rock units.
     Approximate structural framework of the rock 
units and any major discontinuities identified from core samples.
     Approximate thermal, mechanical, and 
thermomechanical properties of the rocks, with consideration of the 
effects of time, stress, temperature, dimensional scale, and any major 
identified structural discontinuities.
     Estimates of the magnitude and direction of in 
situ stress and of temperature in the host rock and surrounding rock 
units.

                   Section 960.4-2-4 Climatic changes.

    Description of the climatic conditions of the site region, in 
context with global and regional patterns of climatic changes during the 
Quaternary Period, in order to project likely future changes in climate 
such that potential impacts on the repository can be estimated. The 
types of information to support this description should include--
     Expected climatic conditions and cycles, based on 
extrapolation of climates during the Quaternary Period.
     Geomorphology of the site region and evidence of 
changes due to climatic changes.
     Estimated effects of expected climatic cycles on 
the surface-water and the ground-water systems.

                       Section 960.4-2-5 Erosion.

    Description of the structure, stratigraphy, and geomorphology of the 
site, in context with the geologic setting, in order to estimate the 
depth of waste emplacement and the likelihood for erosional processes to 
uncover the waste in less than one million years. The types of 
information to support this description should include--
     Depth, thickness, and lateral extent of the host 
rock and the overlying rock units.
     Lithology of the stratigraphic units above the 
host rock.
     Nature and rates of geomorphic processes during 
the Quaternary Period.

                     Section 960.4-2-6 Dissolution.

    Description of the stratigraphy, structure, hydrology, and 
geochemistry of the site, in context with the geologic setting, to 
delineate the approximate limits of subsurface rock dissolution, if any. 
This description should include such information as the following:
     The stratigraphy of the site, including rock 
units largely comprised of water-soluble minerals.
     The approximate extent and configuration of 
features indicative of dissolution within the geologic setting.

                      Section 960.4-2-7 Tectonics.

    Description of the tectonic setting of the site, in context with its 
geologic setting, in order to project the tectonic stability of the site 
over the next 10,000 years and to identify tectonic features and 
processes that could be reasonably expected to have a potentially 
adverse effect on the performance of the repository. The types of 
information to support this description should include--
     The tectonic history and framework of the 
geologic setting and the site.
     Quaternary faults in the geologic setting, 
including their length, displacement, and any information regarding the 
age of latest movement.
     Active tectonic processes, such as uplift, 
diapirism, tilting, subsidence, faulting, and volcanism.
     Estimate of the geothermal gradient.
     Estimate of the regional in situ stress field.
     The historical seismicity of the geologic 
setting.

                  Section 960.4-2-8 Human interference.

                 Section 960.4-2-8-1 Natural resources.

    Description of the mineral and energy resources of the site, in 
order to project whether past or future exploration and recovery could 
have a potentially adverse effect on the performance of the repository. 
The types of information to support this description should include--
     Known occurrences of energy and mineral 
resources, including ground water.
     Estimates of the present and projected value of 
these resources compared with resources contained in other areas of 
similar size in the geologic setting.
     Past and present drilling and mining operations 
in the vicinity of the site.

[[Page 709]]

             Section 960.4-2-8-2 Site ownership and control.

    Description of the ownership of land for the geologic-repository 
operations area and the controlled area, in order to evaluate whether 
the DOE can obtain ownership of, and control access to, the site. The 
types of information to support this description should include--
     Present land ownership.

         Section 960.5-2-1 Population density and distribution.

    Description of the population density and distribution of the site 
region, in order to identify highly populated areas and the nearest 1 
mile by 1 mile area having a population greater than 1,000 persons. The 
types of information to support this description should include--
     The most-recent U.S. census, including population 
composition, distribution, and density.

              Section 960.5-2-2 Site ownership and control.

    Description of current ownership of land, including surface and 
subsurface mineral and water rights, in order to evaluate whether the 
DOE can obtain control of land within the projected restricted area. The 
types of information to support this description should include--
     Present land ownership.

                     Section 960.5-2-3 Meteorology.

    The meteorological setting, as determined from the closest recording 
station, in order to project meteorological conditions during repository 
operation and closure and their potential effects on the transport of 
airborne emissions. The types of information to support this description 
should include--
     Wind and atmospheric-dispersion characteristics.
     Precipitation characteristics.
     Extreme weather phenomena.

         Section 960.5-2-4 Offsite installations and operations.

    Description of offsite installations and operations in the vicinity 
of the site in order to estimate their projected effects on repository 
construction, operation, or closure. The types of information to support 
this description should include--
     Location and nature of nearby industrial, 
transportation, and military installations and operations, including 
atomic energy defense activities.

                Section 960.5-2-5 Environmental quality.

    Description of environmental conditions in order to estimate 
potential impacts on public health and welfare and on environmental 
quality. The types of information to support this description should 
include--
     Applicable Federal, State, and local procedural 
and substantive environmental requirements.
     Existing air quality and trends.
     Existing surface-water and ground-water quality 
and quantity.
     Existing land resources and uses.
     Existing terrestrial and aquatic vegetation and 
wildlife.
     Location of any identified critical habitats for 
threatened or endangered species.
     Existing aesthetic characteristics.
     Location of components of the National Park 
System, the National Wildlife Refuge System, the National Wild and 
Scenic Rivers System, the National Wilderness Preservation System, or 
National Forest Land.
     Location of significant State or regional 
protected resource areas, such as State parks, wildlife areas, or 
historical areas.
     Location of significant Native American resources 
such as major Indian religious sites, or other sites of unique cultural 
interest.

                Section 960.5-2-6 Socioeconomic impacts.

    Description of the socioeconomic conditions of the site, including 
population density and distribution, economics, community services and 
facilities, social conditions, and fiscal and government structure, in 
order to estimate the impacts that might result from site 
characterization and from the development of a repository at that site. 
The types of information to support this description should include--
     Population composition, density, and 
distribution.
     Economic base and economic activity, including 
major sectors of local economy.
     Employment distribution and trends by economic 
sector.
     Resource usage.
     Community services and infrastructure, including 
trends in use and current capacity utilization.
     Housing supply and demand.
     Life style and indicators of the quality of life.
     Existing social problems.
     Sources of, and trends in, local government 
expenditures and revenues.

                    Section 960.5-2-7 Transportation.

    Description of the transportation facilities in the vicinity of the 
site in order to evaluate existing or required access routes or 
improvements. The types of information to support this description 
should include--
     Estimates of the overall cost and risk of 
transporting waste to the site.
     Description of the road and rail network between 
the site and the nearest Interstate highways and major rail lines; also, 
description of the waterway system, if any.

[[Page 710]]

     Analyses of the adequacy of the existing regional 
transportation network to handle waste shipments; the movement of 
supplies for repository construction, operation, and closure; removal of 
nonradioactive waste from the site; and the transportation of the labor 
force.
     Improvements anticipated to be required in the 
transportation network and their feasibility, cost, and environmental 
impacts.
     Compatibility of the required transportation 
network improvements with the local and regional transportation and 
land-use plans.
     Analysis of weather impacts on transportation.
     Analysis of emergency response requirements and 
capabilities related to transportation.

               Section 960.5-2-8 Surface characteristics.

    Description of the surface characteristics of the site, in order to 
evaluate whether repository construction, operation, and closure are 
feasible on the basis of site characteristics that influence those 
activities. The types of information to support this description should 
include--
     Topography of the site.
     Existing and planned surface bodies of water.
     Definition of areas of landslides and other 
potentially unstable slopes, poorly drained material, or materials of 
low bearing strength or of high liquefaction potential.

                 Section 960.5-2-9 Rock characteristics.

    Description of the geologic and geomechanical characteristics of the 
site, in context with the geologic setting, in order to project the 
capability of the host rock and the surrounding rock units to provide 
the space required for the underground facility and safe underground 
openings during repository construction, operation, and closure. The 
types of information to support this description should include--
     Depth, thickness, and lateral extent of the host 
rock.
     Stratigraphic and structural features within the 
host rock and adjacent rock units.
     Thermal, mechanical, and thermomechanical 
properties and constructibility characteristics of the rocks, with 
consideration of the effects of time, stress, temperature, dimensional 
scale, and any major identified structural discontinuities.
     Fluid inclusions and gas content in the host 
rock.
     Estimates of the magnitude and direction of in 
situ stress and of temperature in the host rock.

                      Section 960.5-2-10 Hydrology.

    Description of the hydrology of the site, in context with its 
geologic setting, in order to project compatibility with repository 
construction, operation, and closure. The types of information to 
support this description should include--
     Surface-water systems, including recharge and 
runoff characteristics, and potential for flooding of the repository.
     Nature and location of aquifers, confining units, 
and aquitards.
     Potentiometric surfaces of aquifers.
     Hydraulic properties of geohydrologic units.

                      Section 960.5-2-11 Tectonics.

    Description of the tectonic setting of the site, in context with the 
regional setting, in order to estimate any expected effects of tectonic 
activity on repository construction, operation, or closure. The types of 
information to support this description should include--
     Quaternary faults.
     Active tectonic processes.
     Preliminary estimates of expected ground motion 
caused by the maximum potential earthquake within the geologic setting.



PART 961_STANDARD CONTRACT FOR DISPOSAL OF SPENT NUCLEAR FUEL AND/OR HIGH-LEVEL RADIOACTIVE WASTE--Table of Contents



                            Subpart A_General

Sec.
961.1 Purpose.
961.2 Applicability.
961.3 Definitions.
961.4 Deviations.
961.5 Federal agencies.

 Subpart B_Standard Contract for Disposal of Spent Nuclear Fuel and/or 
                      High-Level Radioactive Waste

961.11 Text of the contract.

    Authority: Sec. 644, Pub. L. 95-91, 91 Stat. 599 (42 U.S.C. 7254) 
and sec. 302, Pub. L. 97-425, 96 Stat. 2257 (42 U.S.C. 10222).

    Source: 48 FR 16599, Apr. 18, 1983, unless otherwise noted.



                            Subpart A_General



Sec. 961.1  Purpose.

    This part establishes the contractual terms and conditions under 
which the Department of Energy (DOE) will make

[[Page 711]]

available nuclear waste disposal services to the owners and generators 
of spent nuclear fuel (SNF) and high-level radioactive waste (HLW) as 
provided in section 302 of the Nuclear Waste Policy Act of 1982 (Pub. L. 
97-425). Under the contract set forth in Sec. 961.11 of this part, DOE 
will take title to, transport, and dispose of spent nuclear fuel and/or 
high-level radioactive waste delivered to DOE by those owners or 
generators of such fuel or waste who execute the contract. In addition, 
the contract will specify the fees owners and generators of SNF and/or 
HLW will pay for these services. All receipts, proceeds, and revenues 
realized by DOE under the contract will be deposited in the Nuclear 
Waste Fund, an account established by the Act in the U.S. Treasury. This 
fund will pay for DOE's radioactive waste disposal activities, the full 
costs of which will be borne by the owners and generators under contract 
with DOE for disposal services.



Sec. 961.2  Applicability.

    This part applies to the Secretary of Energy or his designee and any 
person who owns or generates spent nuclear fuel or high-level 
radioactive waste, of domestic origin, generated in a civilian nuclear 
power reactor. If executed in a timely manner, the contract contained in 
this part will commit DOE to accept title to, transport, and dispose of 
such spent fuel and waste. In exchange for these services, the owners or 
generators of such fuel or waste shall pay fees specified in the 
contract which are intended to recover fully the costs of the disposal 
services to be furnished by DOE. The contract must be signed by June 30, 
1983, or by the date on which such owner or generator commences 
generation of, or takes title to, such spent fuel or waste, whichever 
occurs later.



Sec. 961.3  Definitions.

    For purposes of this part--
    Act means the Nuclear Waste Policy Act of 1982, Public Law 97-425, 
96 Stat. 2201 et seq., 42 U.S.C. 10101 et seq.
    Contract means the agreement set forth in Sec. 961.11 of this part 
and any duly executed amendment or modification thereto.
    Generator means any person who is licensed by the Nuclear Regulatory 
Commission to use a utilization or production facility under the 
authority of section 103 or 104 of the Atomic Energy Act of 1954 (42 
U.S.C. 2133, 2134).
    Owner means any person who has title to spent nuclear fuel or high-
level radioactive waste.
    Purchaser means any person, other than a Federal agency, who is 
licensed by the Nuclear Regulatory Commission to use a utilization or 
production facility under the authority of sections 103 or 104 of the 
Atomic Energy Act of 1954 (42 U.S.C. 2133, 2134) or who has title to 
spent nuclear fuel or high level radioactive waste and who has executed 
a contract with DOE.
    Secretary means the Secretary of Energy of his designee.

Other definitions relating to the subject matter of this rule are set 
forth in Article II of the contract which is contained in Sec. 961.11, 
Text of the contract, of this part.



Sec. 961.4  Deviations.

    Requests for authority to deviate from this part shall be submitted 
in writing to the Contracting Officer, who shall forward the request for 
approval to the Senior Procurement Official, Headquarters. Each request 
for deviation shall contain the following information:
    (a) A statement of the deviation desired, including identification 
of the specific paragraph number(s) of the contract;
    (b) A description of the intended effect of the deviation;
    (c) The reason why the deviation is considered necessary or would be 
in the best interests of the Government;
    (d) The name of the owner or generator seeking the deviation and 
nuclear power reactor(s) affected;
    (e) A statement as to whether the deviation has been requested 
previously and, if so, circumstances of the previous request;
    (f) A statement of the period of time for which the deviation is 
needed; and
    (g) Any pertinent background information will contribute to a full 
understanding of the desired deviation.

[[Page 712]]



Sec. 961.5  Federal agencies.

    Federal agencies or departments requiring DOE's disposal services 
for SNF and/or HLW will be accommodated by a suitable interagency 
agreement reflecting, as appropriate, the terms and conditions set forth 
in the contract in Sec. 961.11; Provided, however, that the fees to be 
paid by Federal agencies will be equivalent to the fees that would be 
paid under the contract.



 Subpart B_Standard Contract for Disposal of Spent Nuclear Fuel and/or 
                      High-Level Radioactive Waste



Sec. 961.11  Text of the contract.

    The text of the standard contract for disposal of spent nuclear fuel 
and/or high/level radioactive waste follows:

               U.S. Department of Energy Contract No. ----

     Contract for Disposal of Spent Nuclear Fuel and/or High-Level 
                            Radioactive Waste

    THIS CONTRACT, entered into this -------------- day of ------------ 
19----, by and between the UNITED STATES OF AMERICA (hereinafter 
referred to as the ``Government''), represented by the UNITED STATES 
DEPARTMENT OF ENERGY (hereafter referred to as ``DOE'') and ------------
, (hereinafter referred to as the ``Purchaser''), a corporation 
organized and existing under the laws of the State of ------------ [add 
as applicable: ``acting on behalf of itself and ------.''].
    Witnesseth that:
    Whereas, the DOE has the responsibility for the disposal of spent 
nuclear fuel and high-level radioactive waste of domestic origin from 
civilian nuclear power reactors in order to protect the public health 
and safety, and the environment; and
    Whereas, the DOE has the responsibility, following commencement of 
operation of a repository, to take title to the spent nuclear fuel or 
high-level radioactive waste involved as expeditiously as practicable 
upon the request of the generator or owner of such waste or spent 
nuclear fuel; and
    Whereas, all costs associated with the preparation, transportation, 
and the disposal of spent nuclear fuel and high-level radioactive waste 
from civilian nuclear power reactors shall be borne by the owners and 
generators of such fuel and waste; and
    Whereas, the DOE is required to collect a full cost recovery fee 
from owners and generators delivering to the DOE such spent nuclear fuel 
and/or high level radioactive waste; and
    Whereas, the DOE is authorized to enter into contracts for the 
permanent disposal of spent nuclear fuel and/or high-level radioactive 
waste of domestic origin in DOE facilities; and
    Whereas, the Purchaser desires to obtain disposal services from DOE; 
and
    Whereas, DOE is obligated and willing to provide such disposal 
services, under the terms and conditions hereinafter set forth; and
    Whereas, this contract is made and entered into under the authority 
of the DOE Organization Act (Pub. L. 95-91, 42 U.S.C. 7101 et seq.) and 
the Nuclear Waste Policy Act of 1982 (Pub. L. 97-425, 42 U.S.C. 10101 et 
seq.)
    Now, therefore, the parties hereto do hereby agree as follows:

                         Article I--Definitions

    As used throughout this contract, the following terms shall have the 
meanings set forth below:
    1. The term assigned three-month period means the period that each 
Purchaser will be assigned by DOE, giving due consideration to the 
Purchaser's assignment preference, for purposes of reporting kilowatt 
hours generated by the Purchaser's nuclear power reactor and for 
establishing fees due and payable to DOE.
    2. The term cask means a container for shipping spent nuclear fuel 
and/or high-level radioactive waste which meets all applicable 
regulatory requirements.
    3. The term civilian nuclear power reactor means a civilian nuclear 
powerplant required to be licensed under sections 103 or 104(b) of the 
Atomic Energy Act of 1954, as amended (42 U.S.C. 2133, 2134(b)).
    4. The term Commission means the United states Nuclear Regulatory 
Commission.
    5. The term contract means this agreement and any duly executed 
amendment or modification thereto.
    6. The term Contracting Officer means the person executing this 
contract on behalf of the Government, and any other officer or civilian 
employee who is a properly disignated Contracting Officer of the DOE; 
and the term includes, except as otherwise provided in this contract, 
the authorized representative of a Contracting Officer acting within the 
limits of his authority.
    7. The term delivery means the transfer of custody, f.o.b. carrier, 
of spent nuclear fuel or high-level radioactive waste from Purchaser to 
DOE at the Purchaser's civilian nuclear power reactor or such other 
domestic site as may be designated by the Purchaser and approved by DOE.
    8. The term disposal means the emplacement in a repository of high-
level radioactive waste, spent nuclear fuel, or other highly radioactive 
waste with no foreseeable

[[Page 713]]

intent of recovery, whether or not such emplacement permits recovery of 
such waste.
    9. The term DOE means the United States Department of Energy or any 
duly authorized representative thereof, including the Contracting 
Officer.
    10. The term DOE facility means a facility operated by or on behalf 
of DOE for the purpose of disposing of spent nuclear fuel and/or high-
level radioactive waste, or such other facility(ies) to which spent 
nuclear fuel and/or high-level radioactive waste may be shipped by DOE 
prior to its transportation to a disposal facility.
    11. The term full cost recovery, means the recoupment by DOE, 
through Purchaser fees and any interest earned, of all direct costs, 
indirect costs, and all allocable overhead, consistent with generally 
accepted accounting principles consistently applied, of providing 
disposal services and conducting activities authorized by the Nuclear 
Waste Policy Act of 1982 (Pub. L. 97-425). As used herein, the term cost 
includes the application of Nuclear Waste Fund moneys for those uses 
expressly set forth in section 302 (d) and (e) of the said Act and all 
other uses specified in the Act.
    12. The term high-level radioactive waste (HLW) means--
    (a) the highly radioactive material resulting from the reprocessing 
of spent nuclear fuel, including liquid waste produced directly in 
reprocessing and any solid material derived from such liquid waste that 
contains fission products in sufficient concentrations; and
    (b) other highly radioactive material that the Commission, 
consistent with existing law, determines by rule requires permanent 
isolation.
    13. The term electricity (kilowatt hours) generated and sold means 
gross electrical output produced by a civilian nuclear power reactor 
measured at the output terminals of the turbine generator minus the 
normal onsite nuclear station service loads during the time electricity 
is being generated multiplied by the total energy adjustment factor. For 
purposes of this provision, the following definition shall apply:
    a. The term Total Energy Adjustment Factor (TEAF) means the sum of 
individual owners' weighted energy adjustment factors.
    b. The term Weighted Energy Adjustment Factor (WEAF) means the 
product of an owner's energy adjustment factor times the owner's share 
of the plant.
    c. The term Owner's Energy Adjustment Factor (OEAF) means the sum of 
the individual owner's adjustment for sales to ultimate consumers and 
adjustment for sales for resale.
    d. The term Owner's Share of the plant (OS) means the owner's 
fraction of metered electricity sales, the owner's fraction of plant 
ownership, or the sponsor company's fixed entitlement percentage of the 
plant's output. This definition includes joint owners of generating 
companies or participants in a generation and transmission cooperative.
    e. The term Adjustment for Sales to ultimate Consumer (ASC) means 
the owner's fraction of sales to the ultimate consumer multiplied by the 
owner's sales to ultimate consumer adjustment factor.
    f. The term Fraction of Sales to ultimate Consumer (FSC) means the 
owner's fractional quantity of electricity sold to the ultimate consumer 
relative to the total of electricity sales (sales to ultimate consumers 
plus the sales for resale).
    g. The term Sales to ultimate Consumer Adjustment Factor (SCAF) 
means one minus the quotient of all electricity lost or otherwise not 
sold for each owner divided by the total electricity available for 
disposition to ultimate consumers. Electricity lost or otherwise not 
sold includes:
    (1) Energy furnished without charge;
    (2) Energy used by the company;
    (3) Transmission losses;
    (4) Distribution losses; and
    (5) Other unaccounted losses as reported to the Federal Government 
``Annual Report of Major Electric Utilities, Licensees and Others,'' 
Federal Energy Regulatory Commission (FERC) Form No.1; Rural 
Electrification Administration (REA) Forms 7 and 11 if appropriate; or 
the ``Annual Electric Utility Report,'' Energy Information 
Administration (EIA) Form EIA-861.
    h. The term Total Electricity Available for Disposition to Ultimate 
Consumers means the reporting year's total of all of a utility's 
electricity supply which is available for disposition, expressed in 
kilowatt hours, and is equal to the sum of the energy sources minus the 
electricity sold for resale by the utility.
    i. The term Adjustment for Sales for Resale (ASR) means the owner's 
fraction of sales for resale multiplied by the national average 
adjustment factor.
    j. The term Fraction of Sales for Resale (FSR) means the owner's 
fractional quantity of electricity sold for resale by the utility 
relative to the total of electricity sales.
    k. The term National Average Adjustment Factor (NAF) means the ratio 
of the national total of electricity sold to the national total of 
electricity available for disposition, based on the most recent 3 years 
of national data provided to the Federal Government, and will be set by 
the Contracting Officer. This term will be evaluated annually and 
revised in increments of .005.
    l. Pumped storage losses. If the proportion of nuclear generated 
electricity consumed by a pumped-storage hydro facility can be measured 
or estimated and if the electricity losses associated with pumped 
storage facilities can be documented (e.g. based on routine and uniform 
records of district power data on contributions from different 
electricity

[[Page 714]]

sources), a prorated nuclear share shall be allowed as an offset to 
gross electricity generation reported on the annex A of appendix G, 
NWPA-830G form. Specific methodologies for calculating these offsets 
must be approved by the Contracting Officer in advance.
    Instructions to annex A of appendix G, NWPA-830G provide the 
necessary information to calculate the energy adjustment factors.
    14. The term metric tons uranium means that measure of weight, 
equivalent to 2,204.6 pounds of uranium and other fissile and fertile 
material that are loaded into a reactor core as fresh fuel.
    15. The term Purchaser's site means the location of Purchaser's 
civilian nuclear power reactor or such other location as the Purchaser 
may designate.
    16. The term quarterly Treasury rate means the current value of 
funds rate as specified by the Treasury Fiscal Requirements Manual, 
Volume 1, Part 6, section 8020.20. This rate is published quarterly in 
the Federal Register prior to the beginning of the affected quarter.
    17. The term shipping lot means a specified quantity of spent 
nuclear fuel or high-level radioactive waste designated by Purchaser for 
delivery to DOE beginning on a specified date.
    18. The term spent nuclear fuel (SNF) means fuel that has been 
withdrawn from a nuclear reactor following irradiation, the 
consistituent elements of which have not been separated by reprocessing.
    19. The term spent nuclear fuel and high-level radioactive waste of 
domestic origin means irradiated fuel material used, and radioactive 
wastes resulting from such use, in nuclear power reactors located only 
in the United States.
    20. The term year means the period which begins on October 1 and 
ends on September 30.

                            Article II--Scope

    This contract applies to the delivery by Purchaser to DOE of SNF 
and/or HLW of domestic origin from civilian nuclear power reactors, 
acceptance of title by DOE to such SNF and/or HLW, subsequent 
transportation, and disposal of such SNF and/or HLW and, with respect to 
such material, establishes the fees to be paid by the Purchaser for the 
services to be rendered hereunder by DOE. The SNF and/or HLW shall be 
specified in a delivery commitment schedule as provided in Article V 
below. The services to be provided by DOE under this contract shall 
begin, after commencement of facility operations, not later than January 
31, 1998 and shall continue until such time as all SNF and/or HLW from 
the civilian nuclear power reactors specified in appendix A, annexed 
hereto and made a part hereof, has been disposed of.

                            Article III--Term

    The term of this contract shall be from the date of execution until 
such time as DOE has accepted, transported from the Purchaser's site(s) 
and disposed of all SNF and/or HLW of domestic origin from the civilian 
nuclear power reactor(s) specified in appendix A.

               Article IV--Responsibilities of the Parties

                     A. Purchaser's Responsibilities

    1. Discharge Information.
    (a) On an annual basis, commencing October 1, 1983, the Purchaser 
shall provide DOE with information on actual discharges to date and 
projected discharges for the next ten (10) years in the form and content 
set forth in appendix B, annexed hereto and made a part hereof. The 
information to be provided will include estimates and projections and 
will not be Purchaser's firm commitment with respect to discharges or 
deliveries.
    (b) No later than October 1, 1983, the Purchaser shall provide DOE 
with specific information on:
    (1) Total spent nuclear fuel inventory as of April 7, 1983;
    (2) Total number of fuel assemblies removed from the particular 
reactor core prior to 12:00 a.m. April 7, 1983 for which there are plans 
for reinsertion in the core, indicating the current planned dates for 
reinsertion in the core. Estimates of the burned and unburned portion of 
each individual assembly are to be provided.
    (c) In the event that the Purchaser fails to provide the annual 
forecast in the form and content required by DOE, DOE may, in its sole 
discretion, require a rescheduling of any delivery commitment schedule 
then in effect.
    2. Preparation for Transportation.
    (a) The Purchaser shall arrange for, and provide, all preparation, 
packaging, required inspections, and loading activities necessary for 
the transportation of SNF and/or HLW to the DOE facility. The Purchaser 
shall notify DOE of such activities sixty (60) days prior to the 
commencement of such activities. The preparatory activities by the 
Purchaser shall be made in accordance with all applicable laws and 
regulations relating to the Purchaser's responsibilities hereunder. DOE 
may designate a representative to observe the preparatory activities 
conducted by the Purchaser at the Purchaser's site, and the Purchaser 
shall afford access to such representative.
    (b) Except as otherwise agreed to by DOE, the Purchaser shall advise 
DOE, in writing as specified in appendix F, annexed hereto and made a 
part hereof, as to the description

[[Page 715]]

of the material in each shipping lot sixty (60) days prior to scheduled 
DOE transportation of that shipping lot.
    (c) The Purchaser shall be responsible for incidental maintenance, 
protection and preservation of any and all shipping casks furnished to 
the Purchaser by DOE for the performance of this contract. The Purchaser 
shall be liable for any loss of or damage to such DOE-furnished 
property, and for expenses incidental to such loss or damage while such 
casks are in the possession and control of the Purchaser except as 
otherwise provided for hereunder. Routine cask maintenance, such as 
scheduled overhauls, shall not be the responsibility of the Purchaser.

                         B. DOE Responsibilities

    1. DOE shall accept title to all SNF and/or HLW, of domestic origin, 
generated by the civilian nuclear power reactor(s) specified in appendix 
A, provide subsequent transportation for such material to the DOE 
facility, and dispose of such material in accordance with the terms of 
this contract.
    2. DOE shall arrange for, and provide, a cask(s) and all necessary 
transportation of the SNF and/or HLW from the Purchaser's site to the 
DOE facility. Such cask(s) shall be furnished sufficiently in advance to 
accommodate scheduled deliveries. Such cask(s) shall be suitable for use 
at the Purchaser's site, meet applicable regulatory requirements, and be 
accompanied by pertinent information including, but not limited to, the 
following:
    (a) Written procedures for cask handling and loading, including 
specifications on Purchaser-furnished cannisters for containment of 
failed fuel;
    (b) Training for Purchaser's personnel in cask handling and loading, 
as may be necessary;
    (c) Technical information, special tools, equipment, lifting 
trunnions, spare parts and consumables needed to use and perform 
incidental maintenance on the cask(s); and
    (d) Sufficient documentation on the equipment supplied by DOE.
    3. DOE may fulfill any of its obligations, or take any action, under 
this contract either directly or through contractors.
    4. DOE shall annually provide to the Purchaser pertinent information 
on the waste disposal program including information on cost projections, 
project plans and progress reports.
    5. (a) Beginning on April 1, 1991, DOE shall issue an annual 
acceptance priority ranking for receipt of SNF and/or HLW at the DOE 
repository. This priority ranking shall be based on the age of SNF and/
or HLW as calculated from the date of discharge of such material from 
the civilian nuclear power reactor. The oldest fuel or waste will have 
the highest priority for acceptance, except as provided in paragraphs B 
and D of Article V and paragraph B.3 of Article VI hereof.
    (b) Beginning not later than July 1, 1987, DOE shall issue an annual 
capacity report for planning purposes. This report shall set forth the 
projected annual receiving capacity for the DOE facility(ies) and the 
annual acceptance ranking relating to DOE contracts for the disposal of 
SNF and/or HLW including, to the extent available, capacity information 
for ten (10) years following the projected commencement of operation of 
the initial DOE facility.

                  Article V--Delivery of SNF and/or HLW

                      A. Description of SNF and HLW

    The Purchaser shall deliver to DOE and DOE shall, as provided in 
this contract, accept the SNF and/or HLW which is described in 
accordance with Article VI.A. of this contract, for disposal thereof.

                     B. Delivery Commitment Schedule

    1. Delivery commitment schedule(s), in the form set forth in 
appendix C annexed hereto and made a part hereof, for delivery of SNF 
and/or HLW shall be furnished to DOE by Purchaser. After DOE has issued 
its proposed acceptance priority ranking, as described in paragraph B.5 
of Article IV hereof, beginning January 1, 1992 the Purchaser shall 
submit to DOE the delivery commitment schedule(s) which shall identify 
all SNF and/or HLW the Purchaser wishes to deliver to DOE beginning 
sixty-three (63) months thereafter. DOE shall approve or disapprove such 
schedules within three (3) months after receipt. In the event of 
disapproval, DOE shall advise the Purchaser in writing of the reasons 
for such disapproval and request a revised schedule from the Purchaser, 
to be submitted to DOE within thirty (30) days after receipt of DOE's 
notice of disapproval.
    2. DOE shall approve or disapprove such revised schedule(s) within 
sixty (60) days after receipt. In the event of disapproval, DOE shall 
advise the Purchaser in writing of the reasons for such disapproval and 
shall submit its proposed schedule(s). If these are not acceptable to 
the Purchaser, the parties shall promptly seek to negotiate mutually 
acceptable schedule(s). Purchaser shall have the right to adjust the 
quantities of SNF and/or HLW plus or minus () 
twenty percent (20%), and the delivery schedule up to two (2) months, 
until the submission of the final delivery schedule.

                       C. Final Delivery Schedule

    Final delivery schedule(s), in the form set forth in appendix D, 
annexed hereto and made a part hereof, for delivery of SNF and/or HLW 
covered by an approved delivery commitment schedule(s) shall be 
furnished to DOE by Purchaser. The Purchaser shall

[[Page 716]]

submit to DOE final delivery schedules not less than twelve (12) months 
prior to the delivery date specified therein. DOE shall approve or 
disapprove a final delivery schedule within forty-five (45) days after 
receipt. In the event of disapproval, DOE shall advise the Purchaser in 
writing of the reasons for such disapproval and shall request a revised 
schedule from the Purchaser, to be submitted to DOE within thirty (30) 
days after receipt of DOE's notice of disapproval. DOE shall approve or 
disapprove such revised schedule(s) within sixty (60) days after 
receipt. In the event of disapproval, DOE shall advise the Purchaser in 
writing of the reasons for such disapproval and shall submit its 
proposed schedule(s). If these are not acceptable to the Purchaser, the 
parties shall promptly seek to negotiate mutually acceptable 
schedule(s).

                         D. Emergency Deliveries

    Emergency deliveries of SNF and/or HLW may be accepted by DOE before 
the date provided in the delivery commitment schedule upon prior written 
approval by DOE.

                              E. Exchanges

    Purchaser shall have the right to determine which SNF and/or HLW is 
delivered to DOE; provided, however, that Purchaser shall comply with 
the requirements of this contract. Purchaser shall have the right to 
exchange approved delivery commitment schedules with parties to other 
contracts with DOE for disposal of SNF and/or HLW; provided, however, 
that DOE shall, in advance, have the right to approve or disapprove, in 
its sole discretion, any such exchanges. Not less than six (6) months 
prior to the delivery date specified in the Purchaser's approved 
delivery commitment schedule, the Purchaser shall submit to DOE an 
exchange request, which states the priority rankings of both the 
Purchaser hereunder and any other Purchaser with whom the exchange of 
approved delivery commitment schedules is proposed. DOE shall approve or 
disapprove the proposed exchange within thirty (30) days after receipt. 
In the event of disapproval, DOE shall advise the Purchaser in writing 
of the reasons for such disapproval.

                    Article VI--Criteria for Disposal

                         A. General Requirements

    1. Criteria.
    (a) Except as otherwise provided in this contract, DOE shall accept 
hereunder only such SNF and/or HLW which meets the General 
Specifications for such fuel and waste as set forth in appendix E, 
annexed hereto and made a part hereof.
    (b) Purchaser shall accurately classify SNF and/or HLW prior to 
delivery in accordance with paragraphs B and D of appendix E.
    2. Procedures.
    (a) Purchaser shall provide to DOE a detailed description of the SNF 
and/or HLW to be delivered hereunder in the form and content as set 
forth in appendix F, annexed hereto and made a part hereof. Purchaser 
shall promptly advise DOE of nay changes in said SNF and/or HLW as soon 
as they become known to the purchaser.
    (b) DOE's obligation for disposing of SNF under this contract also 
extends to other than standard fuel; however, for any SNF which has been 
designated by the Purchaser as other than standard fuel, as that term is 
defined in appendix E, the Purchaser shall obtain delivery and procedure 
confirmation from DOE prior to delivery. DOE shall advise Purchaser 
within sixty (60) days after receipt of such confirmation request as to 
the technical feasibility of disposing of such fuel on the currently 
agreed to schedule and any schedule adjustment for such services.

                        B. Acceptance Procedures

    1. Acceptance Priority Ranking.
    Delivery commitment schedules for SNF and/or HLW may require the 
disposal or more material than the annual capacity of the DOE disposal 
facility (or facilities) can accommodate. The following acceptance 
priority ranking will be utilized:
    (a) Except as may be provided for in subparagraph (b) below and 
Article V.D. of this contract, acceptance priority shall be based upon 
the age of the SNF and/or HLW as calculated from the date of discharge 
of such material from the civilian nuclear power reactor. DOE will first 
accept from Purchaser the oldest SNF and/or HLW for disposal in the DOE 
facility, except as otherwise provided for in paragraphs B and D of 
Article V.
    (b) Notwithstanding the age of the SNF and/or HLW, priority may be 
accorded any SNF and/or HLW removed from a civilian nuclear power 
reactor that has reached the end of its useful life or has been shut 
down permanently for whatever reason.
    2. Verification of SNF and/or HLW.
    During cask loading and prior to acceptance by DOE for 
transportation to the DOE facility, the SNF and/or HLW description of 
the shipping lot shall be subject to verification by DOE. To the extent 
the SNF and/or HLW is consistent with the description submitted and 
approved, in accordance with appendices E and F, DOE agrees to accept 
such SNF and/or HLW for disposal when DOE has verified the SNF and/or 
HLW description, determined the material is properly loaded, packaged, 
marked, labeled and ready for transportation, and has taken custody, as 
evidenced in writing, of the material at the Purchaser's site, f.o.b. 
carrier. A properly executed off-site radioactive shipment record 
describing cask contents must be prepared by the Purchaser along with a 
signed certification which states: ``This is to certify

[[Page 717]]

that the above-named materials are properly described, classified, 
packaged, marked and labeled and are in proper condition for transfer 
according to the applicable regulations of the U. S. Department of 
Transportation.''
    3. Improperly described SNF and/or HLW.
    (a) Prior to Acceptance-- If SNF and/or HLW is determined by DOE to 
be improperly described prior to acceptance by DOE at the Purchaser's 
site, DOE shall promptly notify the Purchaser in writing of such 
determination. DOE reserves the right, in its sole discretion, to refuse 
to accept such SNF and/or HLW until the SNF and/or HLW has been properly 
described. The Purchaser shall not transfer such SNF and/or HLW to DOE 
unless DOE agrees to accept such SNF and/or HLW under such other 
arrangements as may be agreed to, in writing, by the parties.
    (b) After Acceptance-- If subsequent to its acceptance DOE finds 
that such SNF and/or HLW is improperly described, DOE shall promptly 
notify the Purchaser, in writing, of such finding. In the event of such 
notification, Purchaser shall provide DOE with a proper designation 
within thirty (30) days. In the event of a failure by the Purchaser to 
provide such proper designation, DOE may hold in abeyance any and all 
deliveries scheduled hereunder.

                           Article VII--Title

    Title to all SNF and/or HLW accepted by DOE for disposal shall pass 
to DOE at the Purchaser's site as provided for in Article VI hereof. DOE 
shall be solely repsonsible for control of all material upon passage of 
title. DOE shall have the right to dispose as it sees fit of any SNF 
and/or HLW to which it has taken title. The Purchaser shall have no 
claim against DOE or the Government with respect to such SNF or HLW nor 
shall DOE or the Government be obligated to compensate the Purchaser for 
such material.

                 Article VIII--Fees and Terms of Payment

                                 A. Fees

    1. Effective April 7, 1983, Purchaser shall be charged a fee in the 
amount of 1.0 mill per kilowatt hour (1M/kWh) electricity generated and 
sold.
    2. For SNF, or solidified high-level radioactive waste derived from 
SNF, which fuel was used to generate electricity in a civilian nuclear 
power reactor prior to April 7, 1983, a one-time fee will be assessed by 
applying industry-wide average dollar per kilogram charges to four (4) 
distinct ranges of fuel burnup so that the integrated cost across all 
discharged (i.e. spent) fuel is equivalent to an industry-wide average 
charge of 1.0 mill per kilowatt-hour. For purposes of this contract, 
discharged nuclear fuel is that fuel removed from the reactor core with 
no plans for reinsertion. In the event that any such fuel withdrawn with 
plans for reinsertion is not reinserted, then the applicable fee for 
such fuel shall be calculated as set forth in this paragraph 2. The 
categories of spent nuclear fuel burnup and the fee schedule are listed 
below:

                            [In 1982 dollars]
------------------------------------------------------------------------
                                                                 Dollars
                Nuclear spent fuel burnup range                    per
                                                                kilogram
------------------------------------------------------------------------
0 to 5,000 MWDT/MTU...........................................    $80.00
5,000 to 10,000 MWDT/MTU......................................    142.00
10,000 to 20,000 MWDT/MTU.....................................    162.00
Over 20,000 MWDT/MTU..........................................    184.00
------------------------------------------------------------------------

    This fee shall not be subject to adjustment, and the payment thereof 
by the Purchaser shall be made to DOE as specified in paragraph B of 
this Article VIII.
    3. For in-core fuel as of April 7, 1983, that portion of the fuel 
burned through April 6, 1983 shall be subject to the one-time fee as 
calculated in accordance with the following methodology: [a] determine 
the total weight in kilograms of unranium loaded initially in the 
particular core; [b] determine the total megawatt-days (thermal) which 
have been generated by all of the fuel assemblies in the said core as of 
12:00 A.M. April 7, 1983; [c] divide the megawatt-days (thermal) 
generated in the said core by the total metric tons of initially loaded 
uranium in that core and multiply the quotient by the conversion factor 
0.0078 to obtain a value in dollars per kilogram; and [d] multiply the 
dollars per kilogram value by the kilograms determined in [a] above to 
derive the dollar charge for the one-time fee to be paid for the 
specified in-core fuel as of 12:00 A.M. April 7, 1983. For purposes of 
this contract, in-core fuel is that fuel in the reactor core as of the 
date specified, plus any fuel removed from the reactor with plans for 
reinsertion. That portion of such fuel unburned as of 12:00 A.M. April 
7, 1983 shall be subject to the 1.0 mill per kilowatt-hour charge.
    4. DOE will annually review the adequacy of the fees and adjust the 
1M/KWH fee, if necessary, in order to assure full cost recovery by the 
Government. Any proposed adjustment to the said fee will be transmitted 
to Congress and shall be effective after a period of ninety (90) days of 
continuous session has elapsed following receipt of such transmittal 
unless either House of Congress adopts a resolution disapproving the 
proposed adjustment. Any adjustment to the 1M/KWH fee under paragraph 
A.1. of this Article VIII shall be prospective.

                               B. Payment

    1. For electricity generated and sold by the Purchaser's civilian 
nuclear power reactor(s) on or after April 7, 1983, fees shall be paid 
quarterly by the Purchaser and must be received by DOE not later than 
the close of the

[[Page 718]]

last business day of the month following the end of each assigned 3-
month period. The first payment shall be due on July 31, 1983, for the 
period April 7, 1983, to June 30, 1983. (Add as applicable: A one-time 
adjustment period payment shall be due on ----------, for the period --
-------- to ----------.) The assigned 3-month period, for purposes of 
payment and reporting of electricity generated and sold shall begin ----
------.
    2. For SNF discharged prior to April 7, 1983, and for in-core burned 
fuel as of 12:00 A.M. April 7, 1983, the Purchaser shall, within two (2) 
years of contract execution, select one of the following fee payment 
options:
    (a) Option 1-- The Purchaser's financial obligation for said fuel 
shall be prorated evenly over forty (40) quarters and will consist of 
the fee plus interest on the outstanding fee balance. The interest from 
April 7, 1983, to date of the first payment is to be calculated based 
upon the 13-week Treasury bill rate, as reported on the first such 
issuance following April 7, 1983, and compounded quarterly thereafter by 
the 13-week Treasury bill rates as reported on the first such issuance 
of each succeeding assigned three-month period. Beginning with the first 
payment, interest is to be calculated on Purchaser's financial 
obligation plus accrued interest, at the ten-year Treasury note rate in 
effect on the date of the first payment. In no event shall the end of 
the forty (40) quarters extend beyond the first scheduled delivery date 
as reflected in the DOE-approved delivery commitment schedule. All 
payments shall be made concurrently with the assigned three month period 
payments. At any time prior to the end of the forty (40) quarters, 
Purchaser may, without penalty, make a full or partial lump sum payment 
at any of the assigned three month period payment dates. Subsequent 
quarterly payments will be appropriately reduced to reflect the 
reduction in the remaining balance in the fee due and payable. The 
remaining financial obligation, if any, will be subject to interest at 
the same ten-year Treasury note rate over the remainder of the ten year 
period.
    (b) Option 2-- The Purchaser's financial obligation shall be paid in 
the form of a single payment anytime prior to the first delivery, as 
reflected in the DOE approved delivery commitment schedule, and shall 
consist of the fee plus interest on the outstanding fee balance. 
Interest is to be calculated from April 7, 1983, to the date of the 
payment based upon the 13-week Treasury bill rate, as reported on the 
first such issuance following April 7, 1983, and compounded quarterly 
thereafter by the 13-week Treasury bill rates as reported on the first 
such issuance of each succeeding assigned three-month period until 
payment.
    (c) Option 3-- The Purchaser's financial obligation shall be paid 
prior to June 30, 1985, or prior to two (2) years after contract 
execution, whichever comes later, in the form of a single payment and 
shall consist of all outstanding fees for SNF and in-core fuel burned 
prior to April 7, 1983. Under this option, no interest shall be due to 
DOE from April 7, 1983, to the date of full payment on the outstanding 
fee balance.
    3. Method of Payment:
    (a) Payments shall be made by wire transfer, in accordance with 
instructions specified by DOE in appendix G, annexed hereto and made a 
part hereof, and must be received within the time periods specified in 
paragraph B.1. of this Article VIII.
    (b) The Purchaser will complete a Standard Remittance Advice, as set 
forth in appendix G, for each assigned three month period payment, and 
mail it postmarked no later than the last business day of the month 
following each assigned three month period to Department of Energy, 
Office of Controller, Cash Management Division, Box 500, Room D-208, 
Germantown, Maryland 20874.
    4. Any fees not paid on a timely basis or underpaid because of 
miscalculation will be subject to interest as specified in paragraph C 
of this Article VIII.

                        C. Interest on Late Fees

    1. DOE will notify the Purchaser of amounts due only when unpaid or 
underpaid by the dates specified in paragraph B above. Interest will be 
levied according to the following formula:
Interest=Unpaid balance due to DOE for assigned three month period x 
Quarterly Treasury rate plus six percent (6%) x Number of months late 
including month of payment (fractions rounded up to whole months) / 12

    2. Interest is payable at any time prior to the due date for the 
subsequent assigned three month period fee payment. Nonpayment by the 
end of the subsequent assigned three month period will result in 
compounding of interest due. Purchaser shall complete a Standard 
Remittance Advice of interest payments.
    3. Following the assessment of a late fee by DOE, payments will be 
applied against accrued interest first and the principal thereafter.

                          D. Effect of Payment

    Upon payment of all applicable fees, interest and penalties on upaid 
or underpaid amounts, the Purchaser shall have no further financial 
obligation to DOE for the disposal of the accepted SNF and/or HLW.

                                E. Audit

    1. The DOE or its representative shall have the right to perform any 
audits or inspections necessary to determine whether Purchaser is paying 
the correct amount under

[[Page 719]]

the fee schedule and interest provisions set forth in paragraphs A, B 
and C above.
    2. Nothing in this contract shall be deemed to preclude an audit by 
the General Accounting Office of any transaction under this contract.
    3. The Purchaser shall furnish DOE with such records, reports and 
data as may be necessary for the determination of quantities delivered 
hereunder and for final settlement of amounts due under this contract 
and shall retain and make available to DOE and its authorized 
representative examination at all reasonable times such records, reports 
and data for a period of three (3) years from the completion of delivery 
of all material under this contract.

                           Article IX--Delays

                A. Unavoidable Delays by Purchaser or DOE

    Neither the Government nor the Purchaser shall be liable under this 
contract for damages caused by failure to perform its obligations 
hereunder, if such failure arises out of causes beyond the control and 
without the fault or negligence of the party failing to perform. In the 
event circumstances beyond the reasonable control of the Purchaser or 
DOE--such as acts of God, or of the public enemy, acts of Government in 
either its sovereign or contractual capacity, fires, floods, epidemics, 
quarantine restrictions, strikes, freight embargoes and unusually severe 
weather--cause delay in scheduled delivery, acceptance or transport of 
SNF and/or HLW, the party experiencing the delay will notify the other 
party as soon as possible after such delay is ascertained and the 
parties will readjust their schedules, as appropriate, to accommodate 
such delay.

                 B. Avoidable Delays by Purchaser or DOE

    In the event of any delay in the delivery, acceptance or transport 
of SNF and/or HLW to or by DOE caused by circumstances within the 
reasonable control of either the Purchaser or DOE or their respective 
contractors or suppliers, the charges and schedules specified by this 
contract will be equitably adjusted to reflect any estimated additional 
costs incurred by the party not responsible for or contributing to the 
delay.

                          Article X--Suspension

    A. In addition to any other rights DOE may have hereunder, DOE 
reserves the right, at no cost to the Government, to suspend this 
contract or any portion thereof upon written notice to the Purchaser 
within ninety (90) days of the Purchaser's failure to perform its 
obligations hereunder, and the Purchaser's failure to take corrective 
action within thirty (30) days after written notice of such failure to 
perform as provided above, unless such failure shall arise from causes 
beyond the control and without the fault or negligence of the Purchaser, 
its contractors or agents. However, the Purchaser's obligation to pay 
fees required hereunder shall continue unaffected by any suspension. Any 
such suspension shall be rescinded if and when DOE determines that 
Purchaser has completed corrective action.
    B. The DOE reserves the right to suspend any scheduled deliveries in 
the event that a national emergency requires that priority be given to 
Government programs to the exclusion of the work under this contract. In 
the event of such a suspension by the Government, the DOE shall refund 
that portion of payments representing services not delivered as 
determined by the Contracting Officer to be an equitable adjustment. Any 
disagreement arising from the refund payment, if any, shall be resolved 
as provided in the clause of this contract, entitled ``DISPUTES.''

                          Article XI--Remedies

    Nothing in this contract shall be construed to preclude either party 
from asserting its rights and remedies under the contract or at law.

                          Article XII--Notices

    All notices and communications between the parties under this 
contract (except notices published in the Federal Register) shall be in 
writing and shall be sent to the following addressees:
To DOE:_________________________________________________________________
________________________________________________________________________
________________________________________________________________________
To the Purchaser:_______________________________________________________
________________________________________________________________________
________________________________________________________________________
    However, the parties may change the addresses or addressees for such 
notices or communications without formal modification to this contract; 
provided, however, that notice of such changes shall be given by 
registered mail.

    Article XIII--Representation Concerning Nuclear Hazards Indemnity

    A. DOE represents that it will include in its contract(s) for the 
operation of any DOE facility an indemnity agreement based upon Section 
170(d) of the Atomic Energy Act of 1954, as amended, a copy of which 
agreement shall be furnished to the Purchaser; that under said 
agreement, DOE shall have agreed to indemnify the contractor and other 
persons indemnified against claims for public liability (as defined in 
said Act) arising out of or in connection with contractual activities; 
that the indemnity shall apply to covered nuclear incidents which (1) 
take place at a contract location; or (2) arise out of or in the course 
of transportation of source, special nuclear or by-product material to 
or from a

[[Page 720]]

contract location. The obligation of DOE to indemnify shall be subject 
to the conditions stated in the indemnity agreement.
    B. The provisions of this Article XIII shall continue beyond the 
term of this contract.

                         Article XIV--Assignment

    The rights and duties of the Purchaser may be assignable with 
transfer of title to the SNF and/or HLW involved; provided, however, 
that notice of any such transfer shall be made to DOE within ninety (90) 
days of transfer.

                         Article XV--Amendments

    The provisions of this contract has been developed in the light of 
uncertainties necessarily attendant upon long-term contracts. 
Accordingly, at the request of either DOE or Purchaser, the parties will 
negotiate and, to the extent mutually agreed, amend this contract as the 
parties may deem to be necessary or proper to reflect their respective 
interests; provided, however, that any such amendment shall be 
consistent with the DOE final rule published in the Federal Register on 
April 18, 1983 entitled, ``Standard Contract for Disposal or SNF and/or 
HLW'', as the same may be amended from time to time.

                          Article XVI--Disputes

    A. Except as otherwise provided in this contract, any dispute 
concerning a question of fact arising under this contract which is not 
disposed of by agreement shall be decided by the Contracting Officer, 
who shall reduce his decision to writing and mail or otherwise furnish a 
copy thereof to the Purchaser. The decision of the Contracting Officer 
shall be final and conclusive unless within ninety (90) days from the 
date of receipt of such copy, the Purchaser mails or otherwise furnishes 
to the Contracting Officer a written appeal addressed to the DOE Board 
of Contract Appeals (Board). The decision of the Board shall be final 
and conclusive unless determined by a court of competent jursidiction to 
have been fraudulent, or capricious, or arbitrary, or so grossly 
erroneous as necessarily to imply bad faith or not supported by 
substantial evidence. In connection with any appeal proceeding under 
this clause, the Purchaser shall proceed diligently with the performance 
of the contract and in accordance with the Contracting Officer's 
decision.
    B. For Purchaser claims of more than $50,000, the Purchaser shall 
submit with the claim a certification that the claim is made in good 
faith; the supporting data are accurate and complete to the best of the 
Purchaser's knowledge and belief; and the amount requested accurately 
reflects the contract adjustment for which the Purchaser believes the 
Government is liable. The certification shall be executed by the 
Purchaser if an individual. When the Purchaser is not an individual, the 
certification shall be executed by a senior company official in charge 
at the Purchaser's plant or location involved, or by an officer or 
general partner of the Purchaser having overall responsibility for the 
conduct of the Purchaser's affairs.
    C. For Purchaser claims of $50,000 or less, the Contracting Officer 
must render a decision within sixty (60) days. For Purchaser claims in 
excess of $50,000, the Contracting Officer must decide the claim within 
sixty (60) days or notify the Purchaser of the date when the decision 
will be made.
    D. This ``Disputes'' clause does not preclude consideration of law 
questions in connection with decisions provided for in paragraph A 
above; provided, however, that nothing in this contract shall be 
construed as making final the decision of any administrative official, 
representative, or board on a question of law.

                 Article XVII--Officials Not To Benefit

    No member of or delegate to Congress or resident commissioner shall 
be admitted to any share or part of this contract, or to any benefit 
that may arise therefrom, but this provision shall not be construed to 
extend to this contract if made with a corporation for its general 
benefit.

             Article XVIII--Covenant Against Contingent Fees

    The Purchaser warrants that no person or selling agency has been 
employed or retained to solicit or secure this contract upon an 
agreement or understanding for a commission, percentage, brokerage, or 
contingent fee, excepting bona fide employees or bona fide established 
commercial or selling agencies maintained by the Purchaser for the 
purpose of securing business. For breach or violation of this warranty, 
the Government shall have the right to annul this contract without 
liability or in its discretion to increase the contract price or 
consideration, or otherwise recover, the full amount of such commission, 
brokerage, or contingent fee.

                   Article XIX--Examination of Records

    The Purchaser agrees that the Comptroller General of the United 
States or any of his duly authorized representatives shall have access 
to and the right to examine any directly pertinent books, documents, 
papers and records of the Purchaser involving transactions related to 
this contract until the expiration of three years after final payment 
under this contract.

                           Article XX--Permits

    The Government and the Purchaser shall procure all necessary permits 
or licenses (including any special nuclear material licenses) and comply 
with all applicable laws

[[Page 721]]

and regulations of the United States, States and municipalities 
necessary to execute their respective responsibilities and obligations 
under this contract.

                  Article XXI--Rights in Technical Data

                             A. Definitions.

    1. Technical data means recorded information regardless of form or 
characteristic, of a specific or technical nature. It may, for example, 
document research, experimental, developmental, or demonstration, or 
engineering work, or be usable or used to define a design or process, or 
to procure, produce, support, maintain or operate material. The data may 
be graphic or pictorial delineations in media such as drawings or 
photographs, text in specifications or related performance or design-
type documents or computer software (including computer programs, 
computer software data bases, and computer software documentation). 
Examples of technical data include research and engineering data, 
engineering drawings and associated lists, specifications, standards, 
process sheets, manuals, technical reports, catalog item identification, 
and related information. Technical data as used herein do not include 
financial reports, cost analyses, and other information incidental to 
contract administration.
    2. Proprietary data means technical data which embody trade secrets 
developed at private expense, such as design procedures or techniques, 
chemical composition of materials, or manufacturing methods, processes, 
or treatments, including minor modifications thereof, provided that such 
data:
    (a) Are not generally known or available from other sources without 
obligation concerning their confidentiality;
    (b) Have not been made available by the owner to others without 
obligation concerning its confidentiality; and
    (c) Are not already available to the Government without obligation 
concerning their confidentiality.
    3. Contract data means technical data first produced in the 
performance of the contract, technical data which are specified to be 
delivered under the contract, or technical data actually delivered in 
connection with the contract.
    4. Unlimited rights means rights to use, duplicate, or disclose 
technical data, in whole or in part, in any manner and for any purpose 
whatsoever, and to permit others to do so.

                        B. Allocation of Rights.

    1. The Government shall have:
    (a) Unlimited rights in contract data except as otherwise provided 
below with respect to proprietary data properly marked as authorized by 
this clause;
    (b) The right to remove, cancel, correct or ignore any marking not 
authorized by the terms of this contract on any technical data furnished 
hereunder, if in response to a written inquiry by DOE concerning the 
proprietary nature of the markings, the Purchaser fails to respond 
thereto within 60 days or fails to substantiate the proprietary nature 
of the markings. In either case, DOE will notify the Purchaser of the 
action taken;
    (c) No rights under this contract in any technical data which are 
not contract data.
    2. Subject to the foregoing provisions of this rights in technical 
data clause, the Purchaser shall have the right to mark proprietary data 
it furnishes under the contract with the following legend and no other, 
the terms of which shall be binding on the Government:

                          Limited Rights Legend

    This ``proprietary data,'' furnished under ``Contract No. ----'' 
with the U.S. Department of Energy may be duplicated and used by the 
Government with the express limitations that the ``proprietary data'' 
may not be disclosed outside the Government or be used for purposes of 
manufacture without prior permission of the Purchaser, except that 
further disclosure or use may be made solely for the following purposes:
    (a) This ``proprietary data'' may be disclosed for evaluation 
purposes under the restriction that the ``proprietary data'' be retained 
in confidence and not be further disclosed;
    (b) This ``proprietary data'' may be disclosed to contractors 
participating in the Government's program of which this contract is a 
part, for information or use in connection with the work performed under 
their contracts and under the restriction that the ``proprietary data'' 
be retained in confidence and not be further disclosed; or
    (c) This ``proprietary data'' may be used by the Government or 
others on its behalf for emergency work under the restriction that the 
``proprietary data'' be retained in confidence and not be further 
disclosed. This legend shall be marked on any reproduction of this data 
in whole or in part.
    3. In the event that proprietary data of a third party, with respect 
to which the Purchaser is subject to restrictions on use or disclosure, 
is furnished with the Limited Rights Legend above, Purchaser shall 
secure the agreement of such third party to the rights of the Government 
as set forth in the Limited Rights Legend. DOE shall upon request 
furnish the names of those contractors to which proprietary data has 
been disclosed.

                      Article XXII--Entire Contract

    A. This contract, which consists of Articles I through XXII and 
appendices A through G,

[[Page 722]]

annexed hereto and made a part hereof, contains the entire agreement 
between the parties with respect to the subject matter hereof. Any 
representation, promise, or condition not incorporated in this contract 
shall not be binding on either party. No course of dealing or usage of 
trade or course of performance shall be relevant to explain or 
supplement any provision contained in this contract.
    B. Nothing in this contract is intended to affect in any way the 
contractual obligation of any other persons with whom the Purchaser may 
have contracted with respect to assuming some or all disposal costs or 
to accept title to SNF and/or HLW.

                              C. Appendices

A. Nuclear Power Reactor(s) or Other Facilities Covered
B. Discharge Information (Ten Year; Annual)
C. Delivery Commitment Schedule
D. Final Delivery Schedule
E. General Specifications
F. Detailed Description of Purchaser's Fuel
G. Standard Remittance Advice For Payment of Fees

    In witness whereof, the parties hereto have executed this contract 
as of the day and year first above written.

United States of America
United States Department of Energy
By:_____________________________________________________________________
 (Contracting Officer)

Witnesses as to Execution on Behalf of Purchaser
(Name)__________________________________________________________________
(Address)_______________________________________________________________
(Name)__________________________________________________________________
(Address)_______________________________________________________________
(Purchaser's Company Name)
By:_____________________________________________________________________
Title:__________________________________________________________________
    I, (Name), certify that I am the (Title) of the corporation named as 
Purchaser herein; that (Name) who signed this document on behalf of the 
Purchaser was then (Title) of said corporation; that said document was 
duly signed for and on behalf of said corporation by authority of its 
governing body and is within the scope of its corporate powers.
    In Witness Whereof, I have hereunto affixed my hand and the seal of 
said corporation this ---- day of ----, 1983
    (Corporate Seal)
(Signature)_____________________________________________________________

                               Appendix A

          Nuclear Power Reactor(s) or Other Facilities Covered

Purchaser_______________________________________________________________
Contract Number/Date ----/----__________________________________________
Reactor/Facility Name___________________________________________________
Location:
Street__________________________________________________________________
City____________________________________________________________________
County/State --------/__________________________________________________
Zip Code________________________________________________________________
Capacity (MWE)--Gross___________________________________________________
Reactor Type:
    BWR [squ]
    PWR [squ]
 Other (Identify)_______________________________________________________
Facility Description____________________________________________________
Date of Commencement of Operation_______________________________________
(actual or estimated)
NRC License :__________________________________________________
By Purchaser:
Signatue________________________________________________________________
Title___________________________________________________________________
Date____________________________________________________________________

                               Appendix B

                       Ten Year Discharge Forecast

    To be used for DOE planning purposes only and does not represent a 
firm commitment by Purchaser.
Purchaser_______________________________________________________________
Contract Number/Date --------/__________________________________________
Reactor/Facility Name___________________________________________________
Location:
Street__________________________________________________________________
City____________________________________________________________________
County/State --------/__________________________________________________
Zip Code
Type: BWR [squ]
 PWR [squ]
Other (Identify)________________________________________________________

----------------------------------------------------------------------------------------------------------------
                                                                                                          10 yr
                                     1      2      3      4      5      6      7      8      9      10    total
----------------------------------------------------------------------------------------------------------------
Discharge date--mo/yr (or
 refueling shut down date).......
Metric tons:
    --initial....................
    --discharged.................
Number of assemblies discharged
 (per cycle).....................
----------------------------------------------------------------------------------------------------------------

    By Purchaser:
Signature_______________________________________________________________
Title___________________________________________________________________
Date____________________________________________________________________

[[Page 723]]

                        Appendix B (Enclosure 1)

                            Actual Discharges

Purchaser_______________________________________________________________
Contract Number/Date____________________________________________________
Reactor/Facility Name___________________________________________________
Location:
Street__________________________________________________________________
City____________________________________________________________________
County/State____________________________________________________________
Zip Code________________________________________________________________
Type:
    BWR [squ]
    PWR [squ]
Other (Identify)________________________________________________________
Refueling Shutdown Date_________________________________________________
Metric Tons Uranium (Initial/Discharged);
Initial_________________________________________________________________
Discharged______________________________________________________________
Number of Assemblies Discharged:________________________________________
    Any false, fictitious or fraudulent statement may be punishable by 
fine or imprisonment (U.S. Code, Title 18, Section 1001).
By Purchaser:
Signature_______________________________________________________________
Title___________________________________________________________________
Date____________________________________________________________________

                               Appendix C

                      Delivery Commitment Schedule

    This delivery commitment schedule shall be submitted by Purchaser to 
DOE as specified in Article V.B. of this contract.
Purchaser_______________________________________________________________
Contract Number/Date____________________________________________________
Reactor/Facility Name___________________________________________________
Location:
Street__________________________________________________________________
City____________________________________________________________________
County/State____________________________________________________________
Zip Code________________________________________________________________
Type Cask Required:_____________________________________________________
Shipping Lot Number_____________________________________________________
(Assigned by DOE)
Proposed Shipping Mode:
    Truck [squ]
    Rail [squ]
    Barge [squ]
DOE Assigned Delivery Commitment Date___________________________________
Range of Discharge Date(s) (Earliest to Latest)
Mo---- Day---- Yr---- to Mo---- Day---- Yr----
Metric Tons Uranium:
(Initial)_______________________________________________________________
(Discharged)____________________________________________________________
Number of Assemblies:
BWR_____________________________________________________________________
PWR_____________________________________________________________________
Other___________________________________________________________________
    Unless otherwise agreed to in writing by DOE, the Purchaser shall 
furnish herewith to DOE suitable proof of ownership of the SNF and/or 
HLW to be delivered hereunder. The Purchaser shall notify DOE in writing 
at the earliest practicable date of any change in said ownership.
    Any false, fictitious or fraudulent statement may be punishable by 
fine or imprisonment (U.S. Code, Title 18, Section 1001).
By Purchaser:
Signature_______________________________________________________________
Title___________________________________________________________________
Date____________________________________________________________________
Approved by DOE:
Technical Representative________________________________________________
Title___________________________________________________________________
Date____________________________________________________________________
Contracting Officer_____________________________________________________
Date____________________________________________________________________

                               Appendix D

                         Final Delivery Schedule

(To be submitted to DOE by Purchaser for each designated Purchaser 
Delivery site not later than twelve (12) months prior to estimated date 
of first delivery)
Purchaser:______________________________________________________________
Contract Number/Date____________________________________________________
Reactor/Facility Name___________________________________________________
Location:
Street__________________________________________________________________
City____________________________________________________________________
County/State____________________________________________________________
Zip Code________________________________________________________________
Type(s) cask(s) required:_______________________________________________
No. Assembilies per cask________________________________________________
Shipping Lot Number_____________________________________________________
Shipping Mode:
(Assigned by DOE)
Truck___________________________________________________________________
Rail____________________________________________________________________
Barge___________________________________________________________________
Metric Tons Uranium:
(Initial)_______________________________________________________________
(Discharged)____________________________________________________________
Range of Discharge Date(s) (Earliest to Latest)
(From approved commitment schedule)
Mo---- Day---- Yr---- to Mo---- Day---- Yr----
Number of Assemblies:
BWR_____________________________________________________________________
PWR_____________________________________________________________________
Other___________________________________________________________________
Purchaser's Delivery First Estimate
Mo---- Day---- Yr---- last Mo---- Day---- Mo----
    Unless otherwise agreed to in writing by DOE, the Purchaser shall 
furnish herewith to DOE suitable proof of ownership of the SNF and/or 
HLW to be delivered hereunder. The Purchaser shall notify DOE in writing 
at the earliest practicable date of any change in said ownership.
    To confirm acceptability of delivery date(s):
Purchaser Contact_______________________________________________________
Phone___________________________________________________________________
Title___________________________________________________________________
DOE Contact_____________________________________________________________

[[Page 724]]

Phone___________________________________________________________________
Title___________________________________________________________________
    Any false, fictitious or fraudulent statement may be punishable by 
fine or imprisonment (U.S. Code, Title 18, Section 1001).
By Purchaser:
Signature_______________________________________________________________
Title___________________________________________________________________
Date____________________________________________________________________
Approved by DOE:
Technical Representative________________________________________________
Title___________________________________________________________________
Date____________________________________________________________________
Contracting Officer_____________________________________________________
Date____________________________________________________________________

                               Appendix E

                         General Specifications

                     A. Fuel Category Identification

    1. Categories--Purchaser shall use reasonable efforts, utilizing 
technology equivalent to and consistent with the commercial practice, to 
properly classify Spent Nuclear Fuel (SNF) prior to delivery to DOE, as 
follows:
    a. Standard Fuel means SNF that meets all the General Specifications 
therefor set forth in paragraph B below.
    b. Nonstandard Fuel means SNF that does not meet one or more of the 
General Specifications set forth in subparagraphs 1 through 5 of 
paragraph B below, and which is classified as Nonstandard Fuel Classes 
NS-1 through NS-5, pursuant to paragraph B below.
    c. Failed Fuel means SNF that meets the specifications set forth in 
subparagraphs 1 through 3 of paragraph B below, and which is classified 
as Failed Fuel Class F-1 through F-3 pursuant to subparagraph 6 of 
paragraph B below.
    d. Fuel may have ``Failed Fuel'' and/or several ``Nonstandard Fuel'' 
classifications

    B. Fuel Description and Subclassification--General Specifications

    1. Maximum Nominal Physical Dimensions.

------------------------------------------------------------------------
                                     Boiling water     Pressurized water
                                     reactor (BWR)       reactor (PWR)
------------------------------------------------------------------------
Overall Length..................  14 feet, 11 inches  14 feet, 10
                                                       inches.
Active Fuel Length..............  12 feet, 6 inches.  12 feet, 0 inches.
Cross Section \1\...............  6 inches x 6        9 inches x 9
                                   inches.             inches.
------------------------------------------------------------------------
\1\ The cross section of the fuel assembly shall not include the
  channel.
Note: Fuel that does not meet these specifications shall be classified
  as Nonstandard Fuel--Class NS-1.

    2. Nonfuel Components. Nonfuel components including, but not limited 
to, control spiders, burnable poison rod assemblies, control rod 
elements, thimble plugs, fission chambers, and primary and secondary 
neutron sources, that are contained within the fuel assembly, or BWR 
channels that are an integral part of the fuel assembly, which do not 
require special handling, may be included as part of the spent nuclear 
fuel delivered for disposal pursuant to this contract.

    Note: Fuel that does not meet these specifications shall be 
classified as Nonstandard Fuel--Class NS-2.

    3. Cooling. The minimum cooling time for fuel is five (5) years.

    Note: Fuel that does not meet this specification shall be classified 
as Nonstandard Fuel--Class NS-3.

    4. Non-LWR Fuel. Fuel from other than LWR power facilities shall be 
classified as Nonstandard Fuel--Class NS-4. Such fuel may be unique and 
require special handling, storage, and disposal facilities.
    5. Consolidated Fuel Rods. Fuel which has been disassembled and 
stored with the fuel rods in a consolidated manner shall be classified 
as Nonstandard Fuel Class NS-5.
    6. Failed Fuel.
    a. Visual Inspection.
    Assemblies shall be visually inspected for evidence of structural 
deformity or damage to cladding or spacers which may require special 
handling. Assemblies which [i] are structurally deformed or have damaged 
cladding to the extent that special handling may be required or [ii] for 
any reason cannot be handled with normal fuel handling equipment shall 
be classified as Failed Fuel--Class F-1.
    b. Previously Encapsulated Assemblies.
    Assemblies encapsulated by Purchaser prior to classification 
hereunder shall be classified as Failed Fuel--Class F-3. Purchaser shall 
advise DOE of the reason for the prior encapsulation of assemblies in 
sufficient detail so that DOE may plan for appropriate subsequent 
handling.
    c. Regulatory Requirements.
    Spent fuel assemblies shall be packaged and placed in casks so that 
all applicable regulatory requirements are met.

                   C. Summary of Fuel Classifications

    1. Standard Fuel:
    a. Class S-1: PWR
    b. Class S-2: BWR
    2. Nonstandard Fuel:
    a. Class NS-1: Physical Dimensions
    b. Class NS-2: Non Fuel Components
    c. Class NS-3: Short Cooled
    d. Class NS-4: Non-LWR
    e. Class NS-5: Consolidated Fuel Rods.
    3. Failed Fuel:
    a. Class F-1: Visual Failure or Damage
    b. Class F-2: Radioactive ``Leakage''
    c. Class F-3: Encapsulated

                     D. High-Level Radioactive Waste

    The DOE shall accept high-level radioactive waste. Detailed 
acceptance criteria and general specifications for such waste will

[[Page 725]]

be issued by the DOE no later than the date on which DOE submits its 
license application to the Nuclear Regulatory Commission for the first 
disposal facility.

                               Appendix F

                Detailed Description of Purchaser's Fuel

    This information shall be provided by Purchaser for each distinct 
fuel type within a Shipping Lot not later than sixty (60) days prior to 
the schedule transportation date.
Purchaser_______________________________________________________________
Contract Number/Date ----/--------
Reactor/Facility Name--_________________________________________________
________________________________________________________________________
________________________________________________________________________
    I. Drawings included in generic dossier: --------

    1. Fuel Assembly DWG ----
    2. Upper & Lower end fittings DWG ----
    Dossier Number: ----
    DOE Shipping Lot : ----
     Assemblies Described:

 ------BWR
 ------PWR
 ------Other

    II. Design Material Descriptions.

Fuel Element:


    1. Element type ---- (rod, plate, etc.)
    2. Total length) ----/(in.)
    3. Active length ---- (in.)
    4. Cladding material ---- (Zr, s.s., etc.)


Assembly Description:


    1. Number of Elements ----
    2. Overall dimensions (length ---- (cross section) ---- (in.)
    3. Overall weight ----

    III. Describe any distortions, cladding damage or other damage to 
the spent fuel, or nonfuel components within this Shipping Lot which 
will require special handling procedures. (Attach additional pages if 
needed.)
________________________________________________________________________
________________________________________________________________________
    IV. Assembly Number ----
    Shipping Lot ----

------------------------------------------------------------------------
                                                   Irradiation history
                                                        cycle No.
                                                ------------------------
                                                  1    2    3    4    5
------------------------------------------------------------------------
1. Startup date (mo/day/yr)....................  ...  ...  ...  ...  ...
2. Shutdown date (mo/day/yr)...................  ...  ...  ...  ...  ...
3. Cumulative fuel exposure (mwd/mtu)..........  ...  ...  ...  ...  ...
4. Avg. reactor power (mwth)...................  ...  ...  ...  ...  ...
5. Total heat output/assembly in watts, using an approved calculational
 method: -------- as of Date --------
------------------------------------------------------------------------

    Any false, fictitious or fradulent statement may be punishable by 
fine or imprisonment (U.S. Code, Title 18, Section 1001).
    By Purchaser:
Signature_______________________________________________________________
Title___________________________________________________________________
Date____________________________________________________________________

[[Page 726]]

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[[Page 727]]


[GRAPHIC] [TIFF OMITTED] TC01OC91.036


[[Page 728]]


[GRAPHIC] [TIFF OMITTED] TC01OC91.037


[[Page 729]]


[GRAPHIC] [TIFF OMITTED] TC01OC91.038


[[Page 730]]



                          Annex B to Appendix G

         Standard Remittance of Advice (RA) for Payment of Fees

    This Annex should be completed only for SNF burned before midnight 
between April 6/7, 1983.
    I. Identification
    A. Purchaser:------------
    B. Unit identification (Only one unit may be covered in each 
report.)
1. Reactor/Facility Name:_______________________________________________
2. Location:____________________________________________________________
3. Type:________________________________________________________________
4. Capacity:____________________________________________________________
5. Date of Commencement of Operations:__________________________________
6. NRC License No.:_____________________________________________________
    II. Fee Calculation
    A. Discharged nuclear fuel

1. Burnup \1\ (MWDT/MTU)......................................        0-    5,000-    10,000    20,000
                                                                   5,000    10,000    20,000        up
2. Initial loading (KgU) (with indicated burnup)..............  ........  ........  ........  ........
3. Fee rate ($/KgU)...........................................     80.00    142.00    162.00    184.00
4. Fee ($)....................................................  ........  ........  ........  ........
5. Total fee (4)..............................................
 

    B. Nuclear fuel in the reactor core as of midnight of 6/7 April 
1983.

------------------------------------------------------------------------
                                                 Burnup \1\ as
                               Initial loading  of midnight 6/7
   Assembly identification          (KgU)          April 1983      Fee
                                                   (MWDT/MTU)
------------------------------------------------------------------------
 1...........................  ...............  ...............  .......
 2...........................  ...............  ...............  .......
 3...........................  ...............  ...............  .......
 4...........................  ...............  ...............  .......
 5...........................  ...............  ...............  .......
 6...........................  ...............  ...............  .......
 7...........................  ...............  ...............  .......
 8...........................  ...............  ...............  .......
 9...........................  ...............  ...............  .......
10...........................  ...............  ...............  .......
11...........................  ...............  ...............  .......
12...........................  ...............  ...............  .......
13...........................  ...............  ...............  .......
14...........................  ...............  ...............  .......
15...........................  ...............  ...............  .......
16...........................  ...............  ...............  .......
17...........................  ...............  ...............  .......
18...........................  ...............  ...............  .......
19...........................  ...............  ...............  .......
20...........................  ...............  ...............  .......
21...........................  ...............  ...............  .......
22...........................  ...............  ...............  .......
23...........................  ...............  ...............  .......
24...........................  ...............  ...............  .......
25...........................  ...............  ...............  .......
------------------------------------------------------------------------
\1\ Please provide (as an attachment) a clear reference to the
  methodology used to derive the burnup figures (computer codes, etc.)
  and a clear reference to all data used in the derivation of those
  figures.

    C. Total fee.

(Approved by the Office of Management and Budget under control number 
1091-0260)

[48 FR 16599, Apr. 18, 1983; 48 FR 23160, May 24, 1983, as amended at 52 
FR 35359, Sept. 18, 1987; 56 FR 67659, Dec. 31, 1991]



PART 962_BYPRODUCT MATERIAL--Table of Contents



Sec.
962.1 Scope.
962.2 Purpose.
962.3 Byproduct material.

    Authority: The Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.); 
Energy Reorganization Act of 1974 (42 U.S.C. 5801 et seq.); Department 
of Energy Organization Act (42 U.S.C. 7101 et seq.); Nuclear Waste 
Policy Act (Pub. L. 97-425, 96 Stat. 2201).

    Source: 52 FR 15940, May 1, 1987, unless otherwise noted.



Sec. 962.1  Scope.

    This part applies only to radioactive waste substances which are 
owned or produced by the Department of Energy at facilities owned or 
operated by or for the Department of Energy under the Atomic Energy Act 
of 1954 (42 U.S.C. 2011 et seq). This part does not apply to substances 
which are not owned or produced by the Department of Energy.



Sec. 962.2  Purpose.

    The purpose of this part is to clarify the meaning of the term 
``byproduct material'' under section 11e(1) of the Atomic Energy Act of 
1954 (42 U.S.C. 2014(e)(1)) for use only in determining the Department 
of Energy's obligations under the Resource Conservation and Recovery Act 
(42 U.S.C. 6901 et seq.) with regard to radioactive waste substances 
owned or produced by the Department of Energy pursuant to the exercise 
of its responsibilities under the Atomic Energy Act of 1954. This part 
does not affect materials defined as byproduct material under section 
11e(2) of the Atomic Energy Act of 1954 (42 U.S.C. 2014(e)(2)).

[[Page 731]]



Sec. 962.3  Byproduct material.

    (a) For purposes of this part, the term byproduct material means any 
radioactive material (except special nuclear material) yielded in or 
made radioactive by exposure to the radiation incident to the process of 
producing or utilizing special nuclear material.
    (b) For purposes of determining the applicability of the Resource 
Conservation and Recovery Act (42 U.S.C. 6901 et seq.) to any 
radioactive waste substance owned or produced by the Department of 
Energy pursuant to the exercise of its atomic energy research, 
development, testing and production responsibilities under the Atomic 
Energy Act of 1954 (42 U.S.C. 2011 et seq.), the words ``any radioactive 
material,'' as used in paragraph (a) of this section, refer only to the 
actual radionuclides dispersed or suspended in the waste substance. The 
nonradioactive hazardous component of the waste substance will be 
subject to regulation under the Resource Conservation and Recovery Act.



PART 963_YUCCA MOUNTAIN SITE SUITABILITY GUIDELINES--Table of Contents



                      Subpart A_General Provisions

Sec.
963.1 Purpose.
963.2 Definitions.

     Subpart B_Site Suitability Determination, Methods, and Criteria

963.10 Scope.
963.11 Suitability determination.
963.12 Preclosure suitability determination.
963.13 Preclosure suitability evaluation method.
963.14 Preclosure suitability criteria.
963.15 Postclosure suitability determination.
963.16 Postclosure suitability evaluation method.
963.17 Postclosure suitability criteria.

    Authority: 42 U.S.C. 2011 et seq.; 42 U.S.C. 7101 et seq.; 42 U.S.C. 
10101, et seq.

    Source: 66 FR 57336, Nov. 14, 2001, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 963.1  Purpose.

    (a) The purpose of this part is to establish DOE methods and 
criteria for determining the suitability of the Yucca Mountain site for 
the location of a geologic repository. DOE will use these methods and 
criteria in analyzing the data from the site characterization activities 
required under section 113 of the Nuclear Waste Policy Act.
    (b) This part does not address other information that must be 
considered and submitted to the President, and made available to the 
public, by the Secretary under section 114 of the Nuclear Waste Policy 
Act if the Yucca Mountain site is recommended for development as a 
geologic repository.



Sec. 963.2  Definitions.

    For purposes of this part:
    Applicable radiation protection standard means (1) For the 
preclosure period, the preclosure numerical radiation dose limits in 10 
CFR 63.111(a) and (b) and 63.204; and
    (2) For the postclosure period, the postclosure numerical radiation 
dose limits in 10 CFR 63.311 and 63.321 and radionuclide concentration 
limits in 10 CFR 63.331.
    Barrier means any material, structure or feature that prevents or 
substantially reduces the rate of movement of water or radionuclides 
from the Yucca Mountain repository to the accessible environment, or 
prevents the release or substantially reduces the release rate of 
radionuclides from the waste. For example, a barrier may be a geologic 
feature, an engineered structure, a canister, a waste form with physical 
and chemical characteristics that significantly decrease the mobility of 
radionuclides, or a material placed over and around the waste, provided 
that the material substantially delays movement of water or 
radionuclides.
    Cladding is the metallic outer sheath of a fuel rod element; it is 
generally made of a corrosion resistant zirconium alloy or stainless 
steel, and is intended to isolate the fuel from the external 
environment.

[[Page 732]]

    Closure means the final closing of the remaining open operational 
areas of the underground facility and boreholes after termination of 
waste emplacement, culminating in the sealing of shafts and ramps, 
except those openings that may be designed for ventilation or 
monitoring.
    Colloid means any fine-grained material in suspension, or any such 
material that can be easily suspended.
    Criteria means the characterizing traits relevant to assessing the 
performance of a geologic repository, as defined by this section, at the 
Yucca Mountain site.
    Design means a description of the engineered structures, systems, 
components and equipment of a geologic repository at Yucca Mountain that 
includes the engineered barrier system.
    Design bases means that information that identifies the specific 
functions to be performed by a structure, system, or component of a 
facility and the specific values or ranges of values chosen for 
controlling parameters as reference bounds for design. These values may 
be constraints derived from generally accepted ``state-of-the-art'' 
practices for achieving functional goals or requirements derived from 
analysis (based on calculation or experiments) of the effects of a 
postulated event under which a structure, system, or component must meet 
its functional goals. The values for controlling parameters for external 
events include:
    (1) Estimates of severe natural events to be used for deriving 
design bases that will be based on consideration of historical data on 
the associated parameters, physical data, or analysis of upper limits of 
the physical processes involved; and
    (2) Estimates of severe external human-induced events to be used for 
deriving design bases, that will be based on analysis of human activity 
in the region, taking into account the site characteristics and the 
risks associated with the event.
    DOE means the U.S. Department of Energy, or its duly authorized 
representatives.
    Engineered barrier system means the waste packages, including 
engineered components and systems other than the waste package (e.g., 
drip shields), and the underground facility.
    Event sequence means a series of actions and/or occurrences within 
the natural and engineered components of a geologic repository 
operations area that could potentially lead to exposure of individuals 
to radiation. An event sequence includes one or more initiating events 
and associated combinations of repository system component failures, 
including those produced by the action or inaction of operating 
personnel. Those event sequences that are expected to occur one or more 
times before permanent closure of the geologic repository operations 
area are referred to as Category 1 event sequences. Other event 
sequences that have at least one chance in 10,000 of occurring before 
permanent closure are referred to as Category 2 event sequences.
    Geologic repository means a system that is intended to be used for, 
or may be used for, the disposal of radioactive wastes in excavated 
geologic media. A geologic repository includes the engineered barrier 
system and the portion of the geologic setting that provides isolation 
of the radioactive waste.
    Geologic repository operations area means a high-level radioactive 
waste facility that is part of a geologic repository, including both 
surface and subsurface areas, where waste handling activities are 
conducted.
    Geologic setting means geologic, hydrologic, and geochemical system 
of the region in which a geologic repository is or may be located.
    High-level radioactive waste means
    (1) The highly radioactive material resulting from the reprocessing 
of spent nuclear fuel, including liquid waste produced directly in 
reprocessing and any solid material derived from such liquid waste that 
contains fission products in sufficient concentration; and
    (2) Other highly radioactive material that the Commission, 
consistent with existing law, determines by rule requires permanent 
isolation.
    Human intrusion means breaching of any portion of the Yucca Mountain 
disposal system within the repository footprint by any human activity.

[[Page 733]]

    Infiltration means the flow of a fluid into a solid substance 
through pores or small openings; specifically, the movement of water 
into soil and fractured or porous rock.
    Initiating event means a natural or human induced event that causes 
an event sequence.
    Near-field means the region where the adjacent natural geohydrologic 
system has been significantly impacted by the excavation of the 
repository and the emplacement of the waste.
    NRC means the U.S. Nuclear Regulatory Commission or its duly 
authorized representatives.
    Perched water means ground water of limited lateral extent separated 
from an underlying body of ground water by an unsaturated zone.
    Preclosure means the period of time before and during closure of the 
geologic repository.
    Preclosure safety evaluation means a preliminary assessment of the 
adequacy of repository support facilities to prevent or mitigate the 
effects of postulated initiating events and event sequences and their 
consequences (including fire, radiation, criticality, and chemical 
hazards), and the site, structures, systems, components, equipment, and 
operator actions that would be relied on for safety.
    Postclosure means the period of time after the closure of the 
geologic repository.
    Radioactive waste or waste means high-level radioactive waste and 
other radioactive materials, including spent nuclear fuel, that are 
received for emplacement in the geologic repository.
    Reasonably maximally exposed individual means the hypothetical 
person meeting the criteria specified at 10 CFR 63.312.
    Reference biosphere means the description of the environment, 
inhabited by the reasonably maximally exposed individual. The reference 
biosphere comprises the set of specific biotic and abiotic 
characteristics of the environment, including, but not limited to, 
climate, topography, soils, flora, fauna, and human activities.
    Seepage means the inflow of ground water moving in fractures or pore 
spaces of permeable rock to an open space in the rock such as an 
excavated drift.
    Sensitivity study means an analytic or numerical technique for 
examining the effects on model outcomes, such as radionuclide releases, 
of varying specified parameters, such as the infiltration rate due to 
precipitation.
    Site characterization means activities, whether in the laboratory or 
in the field, undertaken to establish the geologic conditions and the 
ranges of the parameters of a candidate site relevant to the location of 
a repository, including borings, surface excavations, excavations of 
exploratory shafts, limited subsurface lateral excavations and borings, 
and in situ testing needed to evaluate the suitability of a candidate 
site for the location of a repository, but not including preliminary 
borings and geophysical testing needed to assess whether site 
characterization should be undertaken.
    Surface facilities means all permanent facilities within the 
restricted area constructed in support of site characterization 
activities and repository construction, operation, and closure 
activities, including surface structures, utility lines, roads, 
railroads, and similar facilities, but excluding the underground 
facility.
    System performance means the complete behavior of a geologic 
repository system at Yucca Mountain in response to the features, events, 
and processes that may affect it.
    Total system performance assessment means a probabilistic analysis 
that is used to:
    (1) Identify the features, events and processes (except human 
intrusion) that might affect the Yucca Mountain disposal system and 
their probabilities of occurring during 10,000 years after disposal;
    (2) Examine the effects of those features, events, processes, and 
sequences of events and processes (except human intrusion) on the 
performance of the Yucca Mountain disposal system; and
    (3) Estimate the dose incurred by the reasonably maximally exposed 
individual, including associated uncertainties, as a result of releases 
caused by all significant features, events, processes, and sequences of 
events and

[[Page 734]]

processes, weighted by their probability of occurrence.
    Underground facility means the underground structure, backfill 
materials, if any, and openings that penetrate the underground structure 
(e.g., ramps, shafts and boreholes, including their seals).
    Waste form means the radioactive waste materials and any 
encapsulating or stabilizing matrix.
    Waste package means the waste form and any containers, shielding, 
packing, and other absorbent materials immediately surrounding an 
individual waste container.
    Yucca Mountain disposal system means the combination of underground 
engineered and natural barriers within the controlled area that prevents 
or substantially reduces releases from the waste.
    Yucca Mountain site means the candidate site in the State of Nevada 
recommended by the Secretary to the President under section 112(b)(1)(B) 
of the Nuclear Waste Policy Act of 1982 (NWPA) (42 U.S.C. 1032(b)(1)(B)) 
on May 27, 1986.



     Subpart B_Site Suitability Determination, Methods, and Criteria



Sec. 963.10  Scope.

    (a) The scope of this subpart includes the following for both the 
preclosure and postclosure periods:
    (1) The bases for the suitability determination for the Yucca 
Mountain site as a location for a geologic repository;
    (2) The suitability evaluation methods for applying the site 
suitability criteria to a geologic repository at the Yucca Mountain 
site; and
    (3) The site suitability criteria that DOE will apply in accordance 
with section 113(b)(1)(A)(iv) of the NWPA.
    (b) DOE will seek NRC concurrence on any future revisions to this 
subpart.



Sec. 963.11  Suitability determination.

    DOE will evaluate whether the Yucca Mountain site is suitable for 
the location of a geologic repository on the basis of the preclosure and 
postclosure determinations described in Sec. Sec. 963.12 and 963.15. If 
DOE's evaluation of the Yucca Mountain site for the location of a 
geologic repository under Sec. Sec. 963.12 and 963.15 shows that the 
geologic repository is likely to meet the applicable radiation 
protection standards for the preclosure and postclosure periods, then 
DOE may determine that the site is a suitable location for the 
development of such a repository.



Sec. 963.12  Preclosure suitability determination.

    DOE will apply the method and criteria described in Sec. Sec. 
963.13 and 963.14 to evaluate the suitability of the Yucca Mountain site 
for the preclosure period. If DOE finds that the results of the 
preclosure safety evaluation conducted under Sec. 963.13 show that the 
Yucca Mountain site is likely to meet the applicable radiation 
protection standard, DOE may determine the site suitable for the 
preclosure period.



Sec. 963.13  Preclosure suitability evaluation method.

    (a) DOE will evaluate preclosure suitability using a preclosure 
safety evaluation method. DOE will evaluate the performance of the 
geologic repository at the Yucca Mountain site using the method 
described in paragraph (b) of this section and the criteria in Sec. 
963.14. DOE will consider the performance of the system in terms of the 
criteria to evaluate whether the geologic repository is likely to comply 
with the applicable radiation protection standard.
    (b) The preclosure safety evaluation method, using preliminary 
engineering specifications, will assess the adequacy of the repository 
facilities to perform their intended functions and prevent or mitigate 
the effects of postulated Category 1 and 2 event sequences. The 
preclosure safety evaluation will consider:
    (1) A preliminary description of the site characteristics, the 
surface facilities and the underground operating facilities;
    (2) A preliminary description of the design bases for the operating 
facilities and a preliminary description of any associated limits on 
operation;
    (3) A preliminary description of potential hazards, event sequences, 
and their consequences; and

[[Page 735]]

    (4) A preliminary description of the structures, systems, 
components, equipment, and operator actions intended to mitigate or 
prevent accidents.



Sec. 963.14  Preclosure suitability criteria.

    DOE will evaluate preclosure suitability using the following 
criteria:
    (a) Ability to contain radioactive material and to limit releases of 
radioactive materials;
    (b) Ability to implement control and emergency systems to limit 
exposure to radiation;
    (c) Ability to maintain a system and components that perform their 
intended safety functions; and
    (d) Ability to preserve the option to retrieve wastes during the 
preclosure period.



Sec. 963.15  Postclosure suitability determination.

    DOE will apply the method and criteria described in Sec. Sec. 
963.16 and 963.17 to evaluate the suitability of the Yucca Mountain site 
for the postclosure period. If DOE finds that the results of the total 
system performance assessments conducted under Sec. 963.16 show that 
the Yucca Mountain site is likely to meet the applicable radiation 
protection standard, DOE may determine the site suitable for the 
postclosure period.



Sec. 963.16  Postclosure suitability evaluation method.

    (a) DOE will evaluate postclosure suitability using the total system 
performance assessment method. DOE will conduct a total system 
performance assessment to evaluate the ability of the geologic 
repository to meet the applicable radiation protection standard under 
the following circumstances:
    (1) DOE will conduct a total system performance assessment to 
evaluate the ability of the Yucca Mountain disposal system to limit 
radiological doses and radionuclide concentrations in the case where 
there is no human intrusion into the repository. DOE will model the 
performance of the Yucca Mountain disposal system using the method 
described in paragraph (b) of this section and the criteria in Sec. 
963.17. DOE will consider the performance of the system in terms of the 
criteria to evaluate whether the Yucca Mountain disposal system is 
likely to comply with the applicable radiation protection standard.
    (2) DOE will conduct a separate total system performance assessment 
to evaluate the ability of the Yucca Mountain disposal system to limit 
radiological doses in the case where there is a human intrusion as 
specified by 10 CFR 63.322. DOE will model the performance of the Yucca 
Mountain disposal system using the method described in paragraph (b) of 
this section and the criteria in Sec. 963.17. If required by applicable 
NRC regulations regarding a human intrusion standard, Sec. 63.321, DOE 
will consider the performance of the system in terms of the criteria to 
evaluate whether the Yucca Mountain disposal system is likely to comply 
with the applicable radiation protection standard.
    (b) In conducting a total system performance assessment under this 
section, DOE will:
    (1) Include data related to the suitability criteria in Sec. 
963.17;
    (2) Account for uncertainties and variabilities in parameter values 
and provide the technical basis for parameter ranges, probability 
distributions, and bounding values;
    (3) Consider alternative models of features and processes that are 
consistent with available data and current scientific understanding, and 
evaluate the effects that alternative models would have on the estimated 
performance of the Yucca Mountain disposal system ;
    (4) Consider only events that have at least one chance in 10,000 of 
occurring over 10,000 years;
    (5) Provide the technical basis for either inclusion or exclusion of 
specific features, events, and processes of the geologic setting, 
including appropriate details as to magnitude and timing regarding any 
exclusions that would significantly change the dose to the reasonably 
maximally exposed individual;
    (6) Provide the technical basis for either inclusion or exclusion of 
degradation, deterioration, or alteration processes of engineered 
barriers, including those processes that would adversely

[[Page 736]]

affect natural barriers, (such as degradation of concrete liners 
affecting the pH of ground water or precipitation of minerals due to 
heat changing hydrologic processes), including appropriate details as to 
magnitude and timing regarding any exclusions that would significantly 
change the dose to the reasonably maximally exposed individual;
    (7) Provide the technical basis for models used in the total system 
performance assessment such as comparisons made with outputs of detailed 
process-level models and/or empirical observations (for example, 
laboratory testing, field investigations, and natural analogs);
    (8) Identify natural features of the geologic setting and design 
features of the engineered barrier system important to isolating 
radioactive waste;
    (9) Describe the capability of the natural and engineered barriers 
important to isolating radioactive waste, taking into account 
uncertainties in characterizing and modeling such barriers;
    (10) Provide the technical basis for the description of the 
capability of the natural and engineered barriers important to isolating 
radioactive waste;
    (11) Use the reference biosphere and reasonably maximally exposed 
individual assumptions specified in applicable NRC regulations; and
    (12) Conduct appropriate sensitivity studies.



Sec. 963.17  Postclosure suitability criteria.

    (a) DOE will evaluate the postclosure suitability of a geologic 
repository at the Yucca Mountain site through suitability criteria that 
reflect both the processes and the models used to simulate those 
processes that are important to the total system performance of the 
geologic repository. The applicable criteria are:
    (1) Site characteristics, which include:
    (i) Geologic properties of the site--for example, stratigraphy, rock 
type and physical properties, and structural characteristics;
    (ii) Hydrologic properties of the site--for example, porosity, 
permeability,moisture content, saturation, and potentiometric 
characteristics;
    (iii) Geophysical properties of the site--for example, densities, 
velocities and water contents, as measured or deduced from geophysical 
logs; and
    (iv) Geochemical properties of the site--for example, precipitation, 
dissolution characteristics, and sorption properties of mineral and rock 
surfaces.
    (2) Unsaturated zone flow characteristics, which include:
    (i) Climate--for example, precipitation and postulated future 
climatic conditions;
    (ii) Infiltration--for example, precipitation entering the mountain 
in excess of water returned to the atmosphere by evaporation and plant 
transpiration;
    (iii) Unsaturated zone flux--for example, water movement through the 
pore spaces, or flowing along fractures or through perched water zones 
above the repository;
    (iv) Seepage--for example, water dripping into the underground 
repository openings from the surrounding rock.
    (3) Near field environment characteristics, which include:
    (i) Thermal hydrology--for example, effects of heat from the waste 
on water flow through the site, and the temperature and humidity at the 
engineered barriers.
    (ii) Near field geochemical environment--for example, the chemical 
reactions and products resulting from water contacting the waste and the 
engineered barrier materials.
    (4) Engineered barrier system degradation characteristics, which 
include:
    (i) Engineered barrier system component performance--for example, 
drip shields, backfill, coatings, or chemical modifications, and
    (ii) Waste package degradation--for example, the corrosion of the 
waste package materials within the near-field environment.
    (5) Waste form degradation characteristics, which include:
    (i) Cladding degradation--for example, corrosion or break-down of 
the cladding on the spent fuel pellets;
    (ii) Waste form dissolution--for example, the ability of individual 
radionuclides to dissolve in water penetrating breached waste packages.

[[Page 737]]

    (6) Engineered barrier system degradation, flow, and transport 
characteristics, which include:
    (i) Colloid formation and stability--for example, the formation of 
colloidal particles and the ability of radionuclides to adhere to these 
particles as they may migrate through the remaining barriers; and
    (ii) Engineered barrier transport--for example, the movement of 
radionuclides dissolved in water or adhering to colloidal particles to 
be transported through the remaining engineered barriers and in the 
underlying unsaturated zone.
    (7) Unsaturated zone flow and transport characteristics, which 
include:
    (i) Unsaturated zone transport--for example, the movement of water 
with dissolved radionuclides or colloidal particles through the 
unsaturated zone underlying the repository, including retardation 
mechanisms such as sorption on rock or mineral surfaces;
    (ii) Thermal hydrology--for example, effects of heat from the waste 
on water flow through the site.
    (8) Saturated zone flow and transport characteristics, which 
include:
    (i) Saturated zone transport--for example, the movement of water 
with dissolved radionuclides or colloidal particles through the 
saturated zone underlying and beyond the repository, including 
retardation mechanisms such as sorption on rock or mineral surfaces; and
    (ii) Dilution--for example, diffusion of radionuclides into pore 
spaces, dispersion of radionuclides along flow paths, and mixing with 
non-contaminated ground water.
    (9) Biosphere characteristics, which include:
    (i) Reference biosphere and reasonably maximally exposed 
individual--for example, biosphere water pathways, location and behavior 
of reasonably maximally exposed individual; and
    (ii) Biosphere transport and uptake--for example, the consumption of 
ground or surface waters through direct extraction or agriculture, 
including mixing with non-contaminated waters and exposure to 
contaminated agricultural products.
    (b) DOE will evaluate the postclosure suitability of the Yucca 
Mountain disposal system using criteria that consider disruptive 
processes and events important to the total system performance of the 
geologic repository. The applicable criteria related to disruptive 
processes and events include:
    (1) Volcanism--for example, the probability and potential 
consequences of a volcanic eruption intersecting the repository;
    (2) Seismic events--for example, the probability and potential 
consequences of an earthquake on the underground facilities or 
hydrologic system; and
    (3) Nuclear criticality--for example, the probability and potential 
consequences of a self-sustaining nuclear reaction as a result of 
chemical or physical processes affecting the waste either in or after 
release from breached waste packages.

[[Page 739]]



          CHAPTER X--DEPARTMENT OF ENERGY (GENERAL PROVISIONS)




  --------------------------------------------------------------------
Part                                                                Page
1000            Transfer of proceedings to the Secretary of 
                    Energy and the Federal Energy Regulatory 
                    Commission..............................         741
1002            Official seal and distinguishing flag.......         744
1003            Office of Hearings and Appeals procedural 
                    regulations.............................         746
1004            Freedom of information......................         764
1005            Intergovernmental review of Department of 
                    Energy programs and activities..........         778
1008            Records maintained on individuals (Privacy 
                    Act)....................................         781
1009            General policy for pricing and charging for 
                    materials and services sold by DOE......         798
1010            Conduct of employees and former employees...         800
1013            Program fraud civil remedies and procedures.         802
1014            Administrative claims under Federal Tort 
                    Claims Act..............................         818
1015            Collection of claims owed the United States.         822
1016            Safeguarding of restricted data.............         839
1017            Identification and protection of 
                    unclassified controlled nuclear 
                    information.............................         848
1021            National Environmental Policy Act 
                    implementing procedures.................         861
1022            Compliance with floodplain and wetland 
                    environmental review requirements.......         886
1023            Contract appeals............................         893
1039            Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally assisted programs.............         909
1040            Nondiscrimination in federally assisted 
                    programs or activities..................         909
1041            Enforcement of nondiscrimation on the basis 
                    of handicap in programs or activities 
                    conducted by the Department of Energy...         941
1042            Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving federal financial assistance..         946

[[Page 740]]

1044            Security requirements for protected 
                    disclosures under section 3164 of the 
                    National Defense Authorization Act for 
                    fiscal year 2000........................         963
1045            Nuclear classification and declassification.         966
1046            Physical protection of security interests...         980
1047            Limited arrest authority and use of force by 
                    protective force officers...............         992
1048            Trespassing on Strategic Petroleum Reserve 
                    facilities and other property...........         995
1049            Limited arrest authority and use of force by 
                    protective force officers of the 
                    Strategic Petroleum Reserve.............         996
1050            Foreign gifts and decorations...............         999
1060            Payment of travel expenses of persons who 
                    are not Government employees............        1009

[[Page 741]]



PART 1000_TRANSFER OF PROCEEDINGS TO THE SECRETARY OF ENERGY AND THE FEDERAL ENERGY REGULATORY COMMISSION--Table of Contents





Sec. 1000.1  Transfer of proceedings.

    (a) Scope. This part establishes the transfer of proceedings pending 
with regard to those functions of various agencies which have been 
consolidated in the Department of Energy and identifies those 
proceedings which are transferred into the jurisdiction of the Secretary 
and those which are transferred into the jurisdiction of the Federal 
Energy Regulatory Commission.
    (b) Proceedings transferred to the Secretary. The following 
proceedings are transferred to the Secretary:
    (1) All Notices of Proposed Rulemaking, pending and outstanding, 
which have been proposed by the Department of Energy and the Department 
of Energy;
    (2) All Notices of Inquiry which have been issued by the Department 
of Energy;
    (3) All Requests for Interpretations which have been filed pursuant 
to 10 CFR part 205, subpart F, and on which no interpretation has been 
issued, with the Office of General Counsel of the Department of Energy;
    (4) All Applications for Exception Relief which have been filed 
pursuant to 10 CFR part 205, subpart D, and on which no final decision 
and order has been issued, with the Office of Exceptions and Appeals of 
the Department of Energy;
    (5) All petitions for special redress, relief or other extraordinary 
assistance which have been filed pursuant to 10 CFR part 205, subpart R, 
and on which no order has been issued, with the Office of Private 
Grievances and Redress of the Department of Energy;
    (6) All appeals from Remedial Orders, Exception Decisions and 
Orders, Interpretations issued by the Office of General Counsel, and 
other agency orders which have been filed pursuant to 10 CFR part 205, 
subpart H, and on which no order has been issued prior to October 1, 
1977, with the Office of Exceptions and Appeals of the Department of 
Energy;
    (7) All applications for modification or rescission of any DOE order 
or interpretation which have been filed pursuant to 10 CFR part 205, 
subpart J, and on which no order has been issued prior to October 1, 
1977, with the Office of Exceptions and Appeals of the Federal Energy 
Administation;

    Note: For a document relating to procedures for natural gas import 
and export proceedings see 42 FR 61856, Dec. 7, 1977.

    (8) All applications for temporary stays and stays which have been 
filed pursuant to 10 CFR part 205, subpart I, and on which no order has 
been issued, with the Office of Exceptions and Appeals of the Department 
of Energy;
    (9) All applications which have been filed with the Office of 
Regulatory Programs of the Department of Energy and on which no final 
order has been issued;
    (10) All investigations which have been instituted and have not been 
resolved by the Office of Compliance of the Department of Energy;
    (11) All Notices of Probable Violation which have been issued prior 
to October 1, 1977, by the Office of Compliance of Department of Energy;
    (12) All Notices of Proposed Disallowance which have been issued 
prior to October 1, 1977, by the Office of Compliance of Department of 
Energy;
    (13) All Prohibition Orders which have been issued pursuant to 10 
CFR part 303 and as to which no Notice of Effectiveness has been issued;
    (14) From the Department of the Interior:
    (i) The tentative power rate adjustments for the Central Valley 
Project, California, proposed on September 12, 1977 (42 FR 46619, 
September 16, 1977).
    (15) From the Interstate Commerce Commission:
    (i) Ex Parte No. 308 (Sub-No. 1)--Investigation of Common Carrier 
Pipelines.
    (16) From the Federal Power Commission:
    (i) Cases:
    (A) Northwest Pipeline Corporation, Docket No. CP75-340.
    (B) Midwestern Gas Transmission Co., Docket No. CP77-458, et al.
    (C) St. Lawrence Gas Company, Docket No. G-17500.

[[Page 742]]

    (D) U.S.D.I. Bonneville Power Administration, Docket No. E-9563.
    (E) U.S.D.I. Southwestern Power Administration, Docket No. E-7201.
    (F) U.S.D.I. Southeastern Power Administration, Docket No. E-6957.
    (G) Tenneco InterAmerica, Inc., Docket No. CP77-561.
    (ii) Applications:
    (A) Maine Public Service Co., Docket No. E-6751. (ERA Docket No. IE-
78-1).
    (B) Northern States Power Co., Docket No. E-9589, (ERA Docket No. 
IE-78-2).
    (C) Arizona Public Service Co., Docket No. IT-5331. (ERA Docket No. 
IE-78-3).
    (D) Niagara Mohawk Power Corp., Docket No, E-7022. (ERA Docket No. 
IE-77-6).
    (E) Maine Public Service Co., Docket No. IT-6027. (ERA Docket No. 
PP-12).
    (F) Boise Cascade, Docket No. E-7765. (ERA Docket No. PP-52).
    (G) Bonneville Power Administration, Docket No. IT-5959. (ERA Docket 
No. PP-10).
    (H) EPR--Oregon (Geothermal Steam Leases).
    (I) EPR--Utah (Geothermal Steam Leases).
    (J) EPR--Idaho (Geothermal Steam Leases).
    (K) EPR--Oregon (Geothermal Steam Leases).
    (L) EPR--Idaho (Geothermal Steam Leases).
    (iii) Rulemakings:
    (A) Implementation of sections 382(b) and 382(c) of the Energy 
Policy and Conservation Act of 1975. Docket No. RM77-3.

    (B) New Form Nos:

    151, Docket No. RM76-19.
    153, Docket No. RM76-27.
    154, Docket No. RM76-33.
    156, Docket No. RM76-32.
    157, Docket No. RM76-21.
    158, Docket No. RM76-31.
    159, Docket No. RM76-23.
    160, Docket No. RM76-20.
    161, Docket No. RM76-26.
    162, Docket No. RM76-34.
    155, Docket No. RM76-28.
    163, Docket No. RM76-30.
    164, Docket No. RM76-25.

    (C) Procedures for the Filing of Federal Rate Schedules Docket No. 
RM77-9.
    (iv) Project withdrawals and power site revocations:
    (A) Project 1021, 1226, 1606, and 1772--(Wyoming)--U.S. Forest 
Service (Applicant).
    (B) Project Nos. 1021, 1226, 1606, and 1772--(Wyoming)--U.S. Forest 
Service (Applicant).
    (C) Project Nos. 220 and 691--(Wyoming)--Cliff Gold Mining Co. 
(Applicant for P-691) The Colowyo Gold Mining Co. (Applicant for P-220).
    (D) Project No. 1203--(Wyoming)--F. D. Foster (Applicant).
    (E) Project No. 1241--(Wyoming)--F. B. Hommel (Applicant).
    (F) Project No. 847--(Oregon)--H. L. Vorse (Applicant).
    (G) Project No. 907--(Colorado)--S. B. Collins (Applicant).
    (H) Project No. 941--(Colorado)--Marian Mining Company (Applicant).
    (I) Project Nos. 347 and 418--(Colorado)--Jones Brothers (Applicant 
for P-347) Frank Gay et al. (Applicant for P-418).
    (J) Project Nos. 373, 521, 937, 1024, 1415, 1546, 1547, and 1025--( 
)--U.S. Forest (Applicant).
    (K) Project No. 163--(Colorado)--James F. Meyser and Edward E. Drach 
(Applicants).
    (L) Project Nos. 385, 445, 506, 519, 1220, 1296, 1418, 1519, 1576, 
1615, 1616, 1618, 1678, 1682, and 1750--(Colorado)--U.S. Forest Service 
(Applicant).
    (M) DA-117--(Alaska)--Bureau of Land Management (Applicant).
    (N) Project No. 114--(Alaska)--Elizabeth H. Graff et al. 
(Applicant).
    (O) DA-222--(Washington)--Bureau of Land Management (Applicant).
    (P) DA-562--(Oregon)--U.S. Geological Survey (Applicant).
    (Q) DA-601--(Idaho)--Bureau of Land Management (Applicant).
    (R) DA-509--(Colorado)--Fed. Highway Admin. (Applicant).
    (S) DA-616--(Idaho)--U.S. Forest Service (Applicant).
    (T) DA-1--(South Carolina)--U.S. Forest Service (Applicant).
    (U) DA-1116--(California)--U.S. Geological Survey (Applicant).
    (V) DA-154--(Arizona)--U.S. Geological Survey (Applicant).

[[Page 743]]

    (W) DA-1098--(California)--Merced Irrigation District (Applicant).
    (c) Proceedings transferred to the Commission. There are hereby 
transferred to the jurisdiction of the Federal Energy Regulatory 
Commission the following proceedings:
    (1) From the Interstate Commerce Commission:
    (i) Ex Parte No. 308--Valuation of Common Carrier Pipelines.
    (ii) I&S 9164--Trans Alaska Pipeline System--Rate Filings (including 
I&S 9164 (Sub-No. 1), NOR 36611, NOR 36611 (Sub-No. 1), NOR 36611 (Sub-
No. 2), NOR 36611 (Sub-No. 3), NOR 36611 (Sub-No. 4)).
    (iii) I&S 9089--General Increase, December 1975, Williams Pipeline 
Company.
    (iv) I&S 9128--Anhydrous Ammonia, Gulf Central Pipeline Company.
    (v) NOR 35533 (Sub-No. 3)--Petroleum Products, Southwest & Midwest 
Williams Pipeline.
    (vi) NOR 35794--Northville Dock Pipeline Corp. et al.
    (vii) NOR 35895--Inexco Oil Company v. Belle Fourche Pipeline Co. et 
al.
    (viii) NOR 36217--Department of Defense v. Interstate Storage & 
Pipeline Corp.
    (ix) NOR 36423--Petroleum Products Southwest to Midwest Points.
    (x) NOR 36520--Williams Pipeline Company--Petroleum Products 
Midwest.
    (xi) NOR 36553--Kerr-McGee Refining Corporation v. Texoma Pipeline 
Co.
    (xii) Suspension Docket 67124--Williams Pipe Line Co.--General 
Increase.
    (xiii) Valuation Docket 1423--Williams Pipeline Company (1971-1974 
inclusive).
    (2) To remain with the Commission until forwarding to the Secretary:

The following proceedings will continue in effect under the jurisdiction 
of the Commission until the timely filing of all briefs on and opposing 
exceptions to the initial decision of the presiding Administration Law 
Judge, at which time the Commission shall forward the record of the 
proceeding to the Secretary for decision on those matters within his 
jurisdiction:
    (i) El Paso Eastern Co., et al., Docket No. CP 77-330, et al.
    (ii) Tenneco Atlantic Pipeline Co., et al., Docket No. CP 77-100, et 
al.
    (iii) Distrigas of Massachusetts Corp., et al., Docket No. CP 70-
196, et al.
    (iv) Distrigas of Massachusetts Corp., et al., Docket No. CP 77-216, 
et al.
    (v) Eascogas LNG, Inc., et al., Docket No. CP 73-47, et al.
    (vi) Pacific Indonesia LNG Co., et al., Docket No. CP74-160, et al., 
(except as provided in paragraph (c)(3) of this section).
    (3) The Amendment to Application of Western LNG Terminal Associates, 
filed on November 11, 1977, in Pacific Indonesia LNG Co., et al., FPC 
Docket No. CP74-160, et al., ERA Docket No. 77-001-LNG, is transferred 
to the jurisdiction of the Commission until timely filing of all briefs 
on and opposing exceptions to the Initial Decision of the presiding 
Administrative Law Judge on that Amendment, at which time the Commission 
shall forward a copy of the record of that proceeding to the Secretary 
of Energy for decision on those matters within his jurisdiction. (If the 
Commission waives the preparation of an initial decision, the Commission 
will forward a copy of the record after completion of the hearing, or 
after the timely filing of any briefs submitted to the Commission, 
whichever occurs later.)
    (d) Residual clause. All proceedings (other than proceedings 
described in paragraphs (b) and (c) of this section) pending with regard 
to any function of the Department of Energy, the Department of Energy, 
Department of the Interior, the Department of Commerce, the Department 
of Housing and Urban Development, the Department of Navy, and the Naval 
Reactor and Military Applications Programs which is transferred to the 
Department of Energy (DOE) by the DOE Organization Act, will be 
conducted by the Secretary. All proceedings (other than proceedings 
described in paragraphs (b) and (c) of this section) before the Federal 
Power Commission or Interstate Commerce Commission will be conducted by 
the

[[Page 744]]

Federal Energy Regulatory Commission.

(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 567 (42 
U.S.C. 7101 et seq.); E.O. 12009, 42 FR 46267)

[42 FR 55534, Oct. 17, 1977, as amended at 43 FR 21434, May 18, 1978; 43 
FR 21658, May 19, 1978]



PART 1002_OFFICIAL SEAL AND DISTINGUISHING FLAG--Table of Contents



                            Subpart A_General

Sec.
1002.1 Purpose.
1002.2 Definitions.
1002.3 Custody of official seal and distinguishing flags.

                         Subpart B_Official Seal

1002.11 Description of official seal.
1002.12 Use of replicas, reproductions, and embossing seals.

                      Subpart C_Distinguishing Flag

1002.21 Description of distinguishing flag.
1002.22 Use of distinguishing flag.

                       Subpart D_Unauthorized Uses

1002.31 Unauthorized uses of the seal and flag.

    Authority: 42 U.S.C. 7264.

    Source: 43 FR 20782, May 15, 1978, unless otherwise noted.



                            Subpart A_General



Sec. 1002.1  Purpose.

    The purpose of this part is to describe the official seal and 
distinguishing flag of the Department of Energy, and to prescribe rules 
for their custody and use.



Sec. 1002.2  Definitions.

    For purposes of this part--
    (a) DOE means all organizational units of the Department of Energy.
    (b) Embossing seal means a display of the form and content of the 
official seal made on a die so that the seal can be embossed on paper or 
other medium.
    (c) Official seal means the original(s) of the seal showing the 
exact form, content, and colors therof.
    (d) Replica means a copy of the official seal displaying the 
identical form, content, and colors thereof.
    (e) Reproduction means a copy of the official seal displaying the 
form and content thereof, reproduced in only one color.
    (f) Secretary means the Secretary of DOE.



Sec. 1002.3  Custody of official seal and distinguishing flags.

    The Secretary or his designee shall:
    (a) Have custody of:
    (1) The official seal and prototypes thereof, and masters, molds, 
dies, and all other means of producing replicas, reproductions, and 
embossing seals; and
    (2) Production, inventory and loan records relating to items 
specified in paragraph (a)(1) of this section; and
    (b) Have custody of distinguishing flags, and be responsible for 
production, inventory, and loan records thereof.



                         Subpart B_Official Seal



Sec. 1002.11  Description of official seal.

    The Department of Energy hereby prescribes as its official seal, of 
which judicial notice shall be taken pursuant to section 654 of the 
Department of Energy Organization Act of 1977, 42 U.S.C. 7264, the 
imprint illustrated below and described as follows:
[GRAPHIC] [TIFF OMITTED] TC01OC91.039

    (a)(1) The official seal includes a green shield bisected by a gold-
colored lightning bolt, on which is emblazoned a gold-colored symbolic 
sun, atom, oil derrick, windmill, and dynamo. It is

[[Page 745]]

crested by the white head of an eagle, atop a white rope. Both appear on 
a blue field surrounded by concentric circles in which the name of the 
agency, in gold, appears on a green background. Detailing is in black.
    (2) The colors used in the configuration are dark green, dark blue, 
gold, black, and white.
    (3) The eagle represents the care in planning and the purposefulness 
of efforts required to respond to the Nation's increasing demands for 
energy. The sun, atom, oil derrick, windmill, and dynamo serve as 
representative technologies whose enhanced development can help meet 
these demands. The rope represents the cohesiveness in the development 
of the technologies and their link to our future capabilities. The 
lightning bolt represents the power of the natural forces from which 
energy is derived and the Nation's challenge in harnessing the forces.
    (4) The color scheme is derived from nature, symbolizing both the 
source of energy and the support of man's existence. The blue field 
represents air and water, green represents mineral resources and the 
earth itself, and gold represents the creation of energy in the release 
of natural forces. By invoking this symbolism, the color scheme 
represents the Nation's commitment to meet its energy needs in a manner 
consistent with the preservation of the natural environment.



Sec. 1002.12  Use of replicas, reproductions, and embossing seals.

    (a) The Secretary and his designees are authorized to affix 
replicas, reproductions, and embossing seals to appropriate documents, 
certifications, and other material for all purposes as authorized by 
this section.
    (b) Replicas may be used only for:
    (1) Display in or adjacent to DOE facilities, in Department 
auditoriums, presentation rooms, hearing rooms, lobbies, and public 
document rooms.
    (2) Offices of senior officials.
    (3) Official DOE distinguishing flags, adopted and utilized pursuant 
to subpart C.
    (4) Official awards, certificates, medals, and plaques.
    (5) Motion picture film, video tape and other audiovisual media 
prepared by or for DOE and attributed thereto.
    (6) Official prestige publications which represent the achievements 
or mission of DOE.
    (7) Non-DOE facilities in connection with events and displays 
sponsored by DOE, and public appearances of the Secretary or other 
designated senior DOE Officials.
    (8) For other such purposes as determined by the Director of the 
Office of Administrative Services.
    (c) Reproductions may be used only on:
    (1) DOE letterhead stationery.
    (2) Official DOE identification cards and security credentials.
    (3) Business cards for DOE employees.
    (4) Official DOE signs.
    (5) Official publications or graphics issued by and attributed to 
DOE, or joint statements of DOE with one or more Federal agencies, State 
or local governments, or foreign governments.
    (6) Official awards, certificates, and medals.
    (7) Motion picture film, video tape, and other audiovisual media 
prepared by or for DOE and attributed thereto.
    (8) For other such purposes as determined by the Director of the 
Office of Administrative Services.
    (d) Embossing seals may be used only on:
    (1) DOE legal documents, including interagency or intergovernmental 
agreements, agreements with States, foreign patent applications, and 
similar documents.
    (2) For other such purposes as determined by the General Counsel or 
the Director of Administration.
    (e) Any person who uses the official seal, replicas, reproductions, 
or embossing seals in a manner inconsistent with this part shall be 
subject to the provisions of 18 U.S.C. 1017, providing penalties for the 
wrongful use of an official seal, and to other provisions of law as 
applicable.
    (f) The official seal is being registered with the World 
Intellectual Property Organization through the U.S. Patent and Trademark 
Office.

[[Page 746]]



                      Subpart C_Distinguishing Flag



Sec. 1002.21  Description of distinguishing flag.

    (a) The base or field of the flag shall be white, and a replica of 
the official seal shall appear on both sides thereof.
    (b)(1) The indoor flag shall be of rayon banner, measure 
4[foot]4 on hoist by 5[foot]6 on the fly, 
exclusive of heading and hems, and be fringed on three edges with yellow 
rayon fringe, 2\1/2\ wide.
    (2) The outdoor flag shall be of heavy weight nylon, and measure 
either 3[foot] on the hoist by 5[foot] on the fly or 5[foot] on the 
hoist by 8[foot] on the fly, exclusive of heading and hems.
    (c) Each flag shall be manufactured in accordance with U.S. 
Department of Defense Military Specification Mil-F-2692. The official 
seal shall be screen printed on both sides, and on each side, the 
lettering shall read from left to right. Headings shall be Type II in 
accordance with the Institute of Heraldry Drawing No. 5-1-45E.



Sec. 1002.22  Use of distinguishing flag.

    (a) DOE distinguishing flags may be used only:
    (1) In the offices of the Secretarial officers, Chairman of the 
Federal Energy Regulatory Commission, and heads of field locations 
designated below:

Power Administrations.
Regional Offices.
Operations Offices.
Certain Field Offices and other locations as designated by the Director 
of Administration.

    (2) At official DOE ceremonies.
    (3) In Department auditoriums, official presentation rooms, hearing 
rooms, lobbies, public document rooms, and in non-DOE facilities in 
connection with events or displays sponsored by DOE, and public 
appearances of DOE officials.
    (4) On or in front of DOE installation buildings.
    (5) Other such purposes as determined by the Director of 
Administration.



                       Subpart D_Unauthorized Uses



Sec. 1002.31  Unauthorized uses of the seal and flag.

    The official seal and distinguishing flag shall not be used except 
as authorized by the Director of Administration in connection with:
    (a) Contractor-operated facilities.
    (b) Souvenir or novelty items.
    (c) Toys or commercial gifts or premiums.
    (d) Letterhead design, except on official Departmental stationery.
    (e) Matchbook covers, calendars, and similar items.
    (f) Civilian clothing or equipment.
    (g) Any article which may disparage the seal or flag or reflect 
unfavorably upon DOE.
    (h) Any manner which implies Departmental endorsement of commercial 
products or services, or of the user's policies or activities.



PART 1003_OFFICE OF HEARINGS AND APPEALS PROCEDURAL REGULATIONS--Table of Contents



                      Subpart A_General Provisions

Sec.
1003.1 Purpose and scope.
1003.2 Definitions.
1003.3 Appearance before the OHA.
1003.4 Filing of documents.
1003.5 Computation of time.
1003.6 Extension of time.
1003.7 Service.
1003.8 Subpoenas, special report orders, oaths, witnesses.
1003.9 General filing requirements.
1003.10 Effective date of orders.
1003.11 Address for filing documents.
1003.12 Ratification of prior directives, orders and actions.
1003.13 Public reference room.
1003.14 Notice of proceedings.

                          Subpart B_Exceptions

1003.20 Purpose and scope.
1003.21 What to file.
1003.22 Where to file.
1003.23 Notice.
1003.24 Contents.
1003.25 OHA evaluation.
1003.26 Decision and Order.
1003.27 Appeal of exception order.

                            Subpart C_Appeals

1003.30 Purpose and scope.

[[Page 747]]

1003.31 Who may file.
1003.32 What to file.
1003.33 Where to file.
1003.34 Notice.
1003.35 Contents.
1003.36 OHA evaluation.
1003.37 Decision and Order.

                             Subpart D_Stays

1003.40 Purpose and scope.
1003.41 What to file.
1003.42 Where to file.
1003.43 Notice.
1003.44 Contents.
1003.45 OHA evaluation.
1003.46 Decision and Order.

                  Subpart E_Modification or Rescission

1003.50 Purpose and scope.
1003.51 What to file.
1003.52 Where to file.
1003.53 Notice.
1003.54 Contents.
1003.55 OHA evaluation.
1003.56 Decision and Order.

                   Subpart F_Conferences and Hearings

1003.60 Purpose and scope.
1003.61 Conferences.
1003.62 Hearings.

                Subpart G_Private Grievances and Redress

1003.70 Purpose and scope.
1003.71 Who may file.
1003.72 What to file.
1003.73 Where to file.
1003.74 Notice.
1003.75 Contents.
1003.76 OHA evaluation of request.
1003.77 Decision and Order.

    Authority: 15 U.S.C. 761 et seq.; 42 U.S.C. 7101 et seq.

    Source: 60 FR 15006, Mar. 21, 1995, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 1003.1  Purpose and scope.

    This part establishes the procedures to be utilized and identifies 
the sanctions that are available in most proceedings before the Office 
of Hearings and Appeals of the Department of Energy. These procedures 
provide standard rules of practice in a variety of informal 
adjudications when jurisdiction is vested in the Office of Hearings and 
Appeals. Any or all of the procedures contained in this part may be 
incorporated by reference in another DOE rule or regulation which 
invokes the adjudicatory authority of the Office of Hearings and 
Appeals. The procedures may also be made applicable at the direction of 
an appropriate DOE official if incorporated by reference in the 
delegation. These rules do not apply in instances in which DOE 
regulations themselves contain procedures governing OHA proceedings 
conducted under authority of those particular regulations. (E.g., 10 CFR 
part 708-DOE Contractor Employee Protection Program; 10 CFR part 710-
Criteria and Procedures for Determining Eligibility for Access to 
Classified Matter or Special Nuclear Material.) These rules also do not 
apply to matters before the DOE Board of Contract Appeals or other 
procurement and financial assistance appeals boards, which are covered 
by their own rules.

[60 FR 15006, Mar. 21, 1995, as amended at 61 FR 35114, July 5, 1996]



Sec. 1003.2  Definitions.

    (a) As used in this part:
    Action means an order issued, or a rulemaking undertaken, by the 
DOE.
    Aggrieved, with respect to a person, means adversely affected by an 
action of the DOE.
    Conference means an informal meeting between the Office of Hearings 
and Appeals and any person aggrieved by an action of the DOE.
    Director means the Director of the Office of Hearings and Appeals or 
duly authorized delegate.
    DOE means the Department of Energy, created by the Department of 
Energy Organization Act (42 U.S.C. 7101 et seq.).
    Duly authorized representative means a person who has been 
designated to appear before the Office of Hearings and Appeals in 
connection with a proceeding on behalf of a person interested in or 
aggrieved by an action of the DOE. Such appearance may consist of the 
submission of a written document, a personal appearance, verbal 
communication, or any other participation in the proceeding.
    Exception means the waiver or modification of the requirements of a 
rule, regulation or other DOE action having the effect of a rule as 
defined by 5

[[Page 748]]

U.S.C. 551(4) under a specific set of facts, pursuant to subpart B of 
this part.
    Federal legal holiday means the first day of January, the third 
Monday of January, the third Monday of February, the last Monday of May, 
the fourth day of July, the first Monday of September, the second Monday 
of October, the eleventh day of November, the fourth Thursday of 
November, the twenty-fifth day of December, or any other calendar day 
designated as a holiday by federal statute or Executive order.
    OHA means the Office of Hearings and Appeals of the Department of 
Energy.
    Order means the whole or a part of a final disposition, whether 
affirmative, negative, injunctive, or declaratory in form, of DOE in a 
matter other than rulemaking but including licensing. This definition 
does not include internal DOE orders and directives issued by the 
Secretary of Energy or delegate in the management and administration of 
departmental elements and functions.
    Person means any individual, firm, estate, trust, sole 
proprietorship, partnership, association, company, joint-venture, 
corporation, governmental unit or instrumentality thereof, or a 
charitable, educational or other institution, and includes any officer, 
director, owner or duly authorized representative thereof.
    Proceeding means the process and activity, and any part thereof, 
instituted by the OHA, either on its own initiative or in response to an 
application, complaint, petition or request submitted by a person, that 
may lead to an action by the OHA.
    SRO means a special report order issued pursuant to Sec. 1003.8(b) 
of this part.
    (b) Throughout this part the use of a word or term in the singular 
shall include the plural, and the use of the male gender shall include 
the female gender.



Sec. 1003.3  Appearance before the OHA.

    (a) A person may make an appearance, including personal appearances 
in the discretion of the OHA, and participate in any proceeding 
described in this part on his own behalf or by a duly authorized 
representative. Any application, appeal, petition, or request filed by a 
duly authorized representative shall contain a statement by such person 
certifying that he is a duly authorized representative. Falsification of 
such certification will subject such person to the sanctions stated in 
18 U.S.C. 1001.
    (b) Suspension and disqualification. The OHA may deny, temporarily 
or permanently, the privilege of participating in proceedings, including 
oral presentation, to any individual who is found by the OHA--
    (1) To have made false or misleading statements, either verbally or 
in writing;
    (2) To have filed false or materially altered documents, affidavits 
or other writings;
    (3) To lack the specific authority to represent the person seeking 
an OHA action; or
    (4) To have engaged in or to be engaged in contumacious conduct that 
substantially disrupts a proceeding.



Sec. 1003.4  Filing of documents.

    (a) Any document filed with the OHA must be addressed as required by 
Sec. 1003.11, and should conform to the requirements contained in Sec. 
1003.9. All documents and exhibits submitted become part of an OHA file 
and will not be returned.
    (b) A document submitted in connection with any proceeding 
transmitted by first class United States mail and properly addressed is 
considered to be filed upon mailing.
    (c) Hand-delivered documents to be filed with the OHA shall be 
submitted to 950 L'Enfant Plaza, SW., Washington, DC, during normal 
business hours.
    (d) Documents hand delivered or received electronically after 
regular business hours are deemed filed on the next regular business 
day.

[60 FR 15006, Mar. 21, 1995, as amended at 63 FR 58289, Oct. 30, 1998]



Sec. 1003.5  Computation of time.

    (a) Days. (1) Except as provided in paragraph (b) of this section, 
in computing any period of time prescribed or allowed by these 
regulations or by an order of the OHA, the day of the act,

[[Page 749]]

event, or default from which the designated period of time begins to run 
is not to be included. The last day of the period so computed is to be 
included unless it is a Saturday, Sunday, or federal legal holiday, in 
which event the period runs until the end of the next day that is not a 
Saturday, Sunday, or a federal legal holiday.
    (2) Saturdays, Sundays and federal legal holidays shall be excluded 
from the computation of time when the period of time allowed or 
prescribed is 7 days or less.
    (b) Hours. If the period of time prescribed in an order issued by 
the OHA is stated in hours rather than days, the period of time shall 
begin to run upon actual notice of such order, whether by verbal or 
written communication, to the person directly affected, and shall run 
without interruption, unless otherwise provided in the order, or unless 
the order is stayed, modified, suspended or rescinded. When a written 
order is transmitted by verbal communication, the written order shall be 
served as soon thereafter as is feasible.
    (c) Additional time after service by mail. Whenever a person is 
required to perform an act, to cease and desist therefrom, or to 
initiate a proceeding under this part within a prescribed period of time 
after issuance to such person of an order, notice or other document and 
the order, notice or other document is served solely by mail, 3 days 
shall be added to the prescribed period.



Sec. 1003.6  Extension of time.

    When a document is required to be filed within a prescribed time, an 
extension of time to file may be granted by the OHA upon good cause 
shown.



Sec. 1003.7  Service.

    (a) All documents required to be served under this part shall be 
served personally or by first class United States mail, except as 
otherwise provided.
    (b) Service upon a person's duly authorized representative shall 
constitute service upon that person.
    (c) Official United States Postal Service receipts from certified 
mailing shall constitute evidence of service.



Sec. 1003.8  Subpoenas, special report orders, oaths, witnesses.

    (a) In accordance with the provisions of this section and as 
otherwise authorized by law, the Director may sign, issue and serve 
subpoenas; administer oaths and affirmations; take sworn testimony; 
compel attendance of and sequester witnesses; control dissemination of 
any record of testimony taken pursuant to this section; subpoena and 
reproduce books, papers, correspondence, memoranda, contracts, 
agreements, or other relevant records or tangible evidence including, 
but not limited to, information retained in computerized or other 
automated systems in possession of the subpoenaed person.
    (b) The Director may issue a Special Report Order requiring any 
person subject to the jurisdiction of the OHA to file a special report 
providing information relating to the OHA proceeding, including but not 
limited to written answers to specific questions. The SRO may be in 
addition to any other reports required.
    (c) The Director, for good cause shown, may extend the time 
prescribed for compliance with the subpoena or SRO and negotiate and 
approve the terms of satisfactory compliance.
    (d) Prior to the time specified for compliance, but in no event more 
than 10 days after the date of service of the subpoena or SRO, the 
person upon whom the document was served may file a request for review 
of the subpoena or SRO with the Director. The Director then shall 
provide notice of receipt to the person requesting review, may extend 
the time prescribed for compliance with the subpoena or SRO, and may 
negotiate and approve the terms of satisfactory compliance.
    (e) If the subpoena or SRO is not modified or rescinded within 10 
days of the date of the Director's notice of receipt:
    (1) The subpoena or SRO shall be effective as issued; and
    (2) The person upon whom the document was served shall comply with 
the subpoena or SRO within 20 days of the date of the Director's notice 
of receipt, unless otherwise notified in writing by the Director.

[[Page 750]]

    (f) There is no administrative appeal of a subpoena or SRO.
    (g) A subpoena or SRO shall be served upon a person named in the 
document by delivering a copy of the document to the person named.
    (h) Delivery of a copy of a subpoena or SRO to a natural person may 
be made by:
    (1) Handing it to the person;
    (2) Leaving it at the person's office with the person in charge of 
the office;
    (3) Leaving it at the person's dwelling or usual place of abode with 
a person of suitable age and discretion who resides there;
    (4) Mailing it to the person by certified mail, at his last known 
address; or
    (5) Any method that provides the person with actual notice prior to 
the return date of the document.
    (i) Delivery of a copy of a subpoena or SRO to a person who is not a 
natural person may be made by:
    (1) Handing it to a registered agent of the person;
    (2) Handing it to any officer, director, or agent in charge of any 
office of such person;
    (3) Mailing it to the last known address of any registered agent, 
officer, director, or agent in charge of any office of the person by 
certified mail; or
    (4) Any method that provides any registered agent, officer, 
director, or agent in charge of any office of the person with actual 
notice of the document prior to the return date of the document.
    (j) A witness subpoenaed by the OHA may be paid the same fees and 
mileage as paid to a witness in the district courts of the United 
States.
    (k) If in the course of a proceeding a subpoena is issued at the 
request of a person other than an officer or agency of the United 
States, the witness fees and mileage shall be paid by the person who 
requested the subpoena. However, at the request of the person, the 
witness fees and mileage may be paid by the OHA if the person shows:
    (1) The presence of the subpoenaed witness will materially advance 
the proceeding; and
    (2) The person who requested that the subpoena be issued would 
suffer a serious hardship if required to pay the witness fees and 
mileage.
    (l) If any person upon whom a subpoena or SRO is served pursuant to 
this section refuses or fails to comply with any provision of the 
subpoena or SRO, an action may be commenced in the appropriate United 
States District Court to enforce the subpoena or SRO.
    (m) Documents produced in response to a subpoena shall be 
accompanied by the sworn certification, under penalty of perjury, of the 
person to whom the subpoena was directed or his authorized agent that:
    (1) A diligent search has been made for each document responsive to 
the subpoena; and
    (2) To the best of his knowledge, information, and belief each 
document responsive to the subpoena is being produced.
    (n) Any information furnished in response to an SRO shall be 
accompanied by the sworn certification, under penalty of perjury, of the 
person to whom it was directed or his authorized agent who actually 
provides the information that:
    (1) A diligent effort has been made to provide all information 
required by the SRO; and
    (2) All information furnished is true, complete, and correct.
    (o) If any document responsive to a subpoena is not produced or any 
information required by an SRO is not furnished, the certification shall 
include a statement setting forth every reason for failing to comply 
with the subpoena or SRO. If a person to whom a subpoena or SRO is 
directed withholds any document or information because of a claim of 
attorney-client or other privilege, the person submitting the 
certification required by paragraph (m) or (n) of this section also 
shall submit a written list of the documents or the information withheld 
indicating a description of each document or information, the date of 
the document, each person shown on the document as having received a 
copy of the document, each person shown on the document as having 
prepared or been sent the document, the privilege relied upon as the 
basis for withholding the document or information, and an identification 
of

[[Page 751]]

the person whose privilege is being asserted.
    (p) If testimony is taken pursuant to a subpoena, the Director shall 
determine whether the testimony shall be recorded and the means by which 
the testimony is recorded.
    (q) A witness whose testimony is recorded may procure a copy of his 
testimony by making a written request for a copy and paying the 
appropriate fees. However, the Director may deny the request for good 
cause. Upon proper identification, any witness or his attorney has the 
right to inspect the official transcript of the witness' own testimony.
    (r) The Director may sequester any person subpoenaed to furnish 
documents or give testimony. Unless permitted by the Director, neither a 
witness nor his attorney shall be present during the examination of any 
other witnesses.
    (s) A witness whose testimony is taken may be accompanied, 
represented and advised by his attorney as follows:
    (1) Upon the initiative of the attorney or witness, the attorney may 
advise his client, in confidence, with respect to the question asked his 
client, and if the witness refuses to answer any question, the witness 
or his attorney is required to briefly state the legal grounds for such 
refusal; and
    (2) If the witness claims a privilege to refuse to answer a question 
on the grounds of self-incrimination, the witness must assert the 
privilege personally.
    (t) The Director shall take all necessary action to regulate the 
course of testimony and to avoid delay and prevent or restrain 
contemptuous or obstructionist conduct or contemptuous language. OHA may 
take actions as the circumstances may warrant in regard to any instances 
where any attorney refuses to comply with directions or provisions of 
this section.



Sec. 1003.9  General filing requirements.

    (a) Purpose and scope. The provisions of this section shall apply to 
all documents required or permitted to be filed with the OHA. One copy 
of each document must be filed with the original, except as provided in 
paragraph (f) of this section. A telefax filing of a document will be 
accepted only if immediately followed by the filing by mail or hand-
delivery of the original document.
    (b) Signing. Any document that is required to be signed, shall be 
signed by the person filing the document. Any document filed by a duly 
authorized representative shall contain a statement by such person 
certifying that he is a duly authorized representative. (A false 
certification is unlawful under the provisions of 18 U.S.C. 1001.) The 
signature by the person or duly authorized representative constitutes a 
certificate by the signer that the signer has read the document and that 
to the best of the signer's knowledge, information and belief formed 
after reasonable inquiry, the document is well grounded in fact, 
warranted under existing law, and submitted in good faith and not for 
any improper purpose such as to harass or to cause unnecessary delay. If 
a document is signed in violation of this section, OHA may impose the 
sanctions specified in section 1003.3 and other sanctions determined to 
be appropriate.
    (c) Labeling. An application, petition, or other request for action 
by the OHA should be clearly labeled according to the nature of the 
action involved both on the document and on the outside of the envelope 
in which the document is transmitted.
    (d) Obligation to supply information. A person who files an 
application, petition, appeal or other request for action is under a 
continuing obligation during the proceeding to provide the OHA with any 
new or newly discovered information that is relevant to that proceeding. 
Such information includes, but is not limited to, information regarding 
any other application, petition, appeal or request for action that is 
subsequently filed by that person with any DOE office.
    (e) The same or related matters. A person who files an application, 
petition, appeal or other request for action by the OHA shall state 
whether, to the best knowledge of that person, the same or related 
issue, act or transaction has been or presently is being considered or 
investigated by any other

[[Page 752]]

DOE office, other federal agency, department or instrumentality; or by a 
state or municipal agency or court; or by any law enforcement agency, 
including, but not limited to, a consideration or investigation in 
connection with any proceeding described in this part. In addition, the 
person shall state whether contact has been made by the person or one 
acting on his behalf with any person who is employed by the DOE with 
regard to the same issue, act or transaction or a related issue, act or 
transaction arising out of the same factual situation; the name of the 
person contacted; whether the contact was verbal or in writing; the 
nature and substance of the contact; and the date or dates of the 
contact.
    (f) Request for confidential treatment. (1) If any person filing a 
document with the OHA claims that some or all of the information 
contained in the document is exempt from the mandatory public disclosure 
requirements of the Freedom of Information Act (5 U.S.C. 552), is 
information referred to in 18 U.S.C. 1905, or is otherwise exempt by law 
from public disclosure, and if such person requests the OHA not to 
disclose such information, such person shall file together with the 
document two copies of the document from which has been deleted the 
information for which such person wishes to claim confidential 
treatment. The person shall indicate in the original document that it is 
confidential or contains confidential information and must file a 
statement specifying the justification for non-disclosure of the 
information for which confidential treatment is claimed. If the person 
states that the information comes within the exception codified at 5 
U.S.C. 552(b)(4) for trade secrets and commercial or financial 
information, such person shall include a statement specifying why such 
information is privileged or confidential. If the person filing a 
document does not submit two copies of the document with the 
confidential information deleted, the OHA may assume that there is no 
objection to public disclosure of the document in its entirety.
    (2) The OHA retains the right to make its own determination with 
regard to any claim of confidentiality, under criteria specified in 10 
CFR 1004.11. Notice of the decision by the OHA to deny such claim, in 
whole or in part, and an opportunity to respond shall be given to a 
person claiming confidentiality of information no less than five days 
prior to its public disclosure.
    (g) Each application, petition or request for OHA action shall be 
submitted as a separate document, even if the applications, petitions, 
or requests deal with the same or a related issue, act or transaction, 
or are submitted in connection with the same proceeding.



Sec. 1003.10  Effective date of orders.

    Any order issued by the OHA under this part is effective as against 
all persons having actual or constructive notice thereof upon issuance, 
in accordance with its terms, unless and until it is stayed, modified, 
suspended, or rescinded. An order is deemed to be issued on the date, as 
specified in the order, on which it is signed by the Director of the OHA 
or his designee, unless the order provides otherwise.



Sec. 1003.11  Address for filing documents.

    All applications, requests, petitions, appeals, written 
communications and other documents to be submitted to or filed with the 
OHA, as provided in this part or otherwise, shall be addressed to the 
Office of Hearings and Appeals, U.S. Department of Energy, 1000 
Independence Avenue, SW., Washington, DC 20585-0107. The OHA has 
facilities for the receipt of transmissions via FAX, at FAX Number (202) 
426-1415.

[60 FR 15006, Mar. 21, 1995, as amended at 63 FR 58289, Oct. 30, 1998]



Sec. 1003.12  Ratification of prior directives, orders and actions.

    All orders and other directives issued, all proceedings initiated, 
and all other actions taken in accordance with 10 CFR part 205 prior to 
the effective date of this part, are hereby confirmed and ratified, and 
shall remain in full force and effect as if issued under this part, 
unless or until they are altered, amended, modified or rescinded in 
accordance with the provisions of this part.

[[Page 753]]



Sec. 1003.13  Public reference room.

    A public reference room shall be maintained at the OHA, 950 L'Enfant 
Plaza, S.W., Washington, DC. In this room, the following information 
shall be made available for public inspection and copying, during normal 
business hours:
    (a) A list of all persons who have applied for an exception, or 
filed an appeal or petition, and a digest of each application;
    (b) Each Decision and Order, with confidential information deleted, 
issued in response to an application for an exception, petition or other 
request, or at the conclusion of an appeal; and
    (c) Any other information in the possession of OHA which is required 
by statute to be made available for public inspection and copying, and 
any other information that the OHA determines should be made available 
to the public.

[60 FR 15006, Mar. 21, 1995, as amended at 63 FR 58289, Oct. 30, 1998]



Sec. 1003.14  Notice of proceedings.

    At regular intervals, the OHA shall publish on its Internet World 
Wide Web site, a digest of the applications, appeals, petitions and 
other requests filed, and a summary of the Decisions and Orders issued 
by the OHA, pursuant to proceedings conducted under this part. The OHA's 
web site is located at http://www.oha.doe.gov.

[60 FR 15006, Mar. 21, 1995, as amended at 63 FR 58289, Oct. 30, 1998]



                          Subpart B_Exceptions



Sec. 1003.20  Purpose and scope.

    (a) This subpart establishes the procedures for applying for an 
exception or exemption, as provided for in section 504 (42 U.S.C. 7194) 
of the Department of Energy Organization Act (42 U.S.C. 7101 et seq.), 
from a rule, regulation or DOE action having the effect of a rule as 
defined by 5 U.S.C. 551(4), based on an assertion of serious hardship, 
gross inequity or unfair distribution of burdens, and for consideration 
of such application by the OHA. The procedures contained in this subpart 
may be incorporated by reference in another DOE rule or regulation which 
invokes the adjudicatory authority of the Office of Hearings and 
Appeals. The procedures may also be made applicable to proceedings 
undertaken at the direction of an appropriate DOE official if 
incorporated by reference in the delegation.
    (b) The filing of an application for an exception shall not 
constitute grounds for noncompliance with the requirements from which an 
exception is sought, unless a stay has been issued in accordance with 
subpart D of this part.

[60 FR 15006, Mar. 21, 1995, as amended at 61 FR 35114, July 5, 1996]



Sec. 1003.21  What to file.

    A person seeking relief under this subpart shall file an 
``Application for Exception,'' which should be clearly labeled as such 
both on the application and on the outside of the envelope in which the 
application is transmitted, and shall be in writing. The general filing 
requirements stated in Sec. 1003.9 shall be complied with in addition 
to the requirements stated in this subpart.



Sec. 1003.22  Where to file.

    All applications for exception shall be filed with the OHA at the 
address provided in Sec. 1003.11.



Sec. 1003.23  Notice.

    (a) The applicant shall send by United States mail a copy of the 
application and any subsequent amendments or other documents relating to 
the application, or a copy from which confidential information has been 
deleted in accordance with Sec. 1003.9(f), to each person who is 
reasonably ascertainable by the applicant as a person who would be 
aggrieved by the OHA action sought. The copy of the application shall be 
accompanied by a statement that the person may submit comments regarding 
the application within 10 days. The application filed with the OHA shall 
include certification to the OHA that the applicant has complied with 
the requirements of this paragraph and shall include the names and 
addresses of each person to whom a copy of the application was sent.
    (b) Notwithstanding the provision of paragraph (a) of this section, 
if an applicant determines that compliance with paragraph (a) of this 
section would be impracticable, the applicant shall:

[[Page 754]]

    (1) Comply with the requirements of paragraph (a) of this section 
with regard to those persons whom it is reasonable and practicable to 
notify; and
    (2) Include with the application a description of the persons or 
class or classes of persons to whom notice was sent. The OHA may require 
the applicant to provide additional or alternative notice, may determine 
that the notice required by paragraph (a) of this section is not 
impracticable, or may determine that notice should be published in the 
Federal Register.
    (c) The OHA shall serve notice on any other person readily 
identified by the OHA as one who would be aggrieved by the OHA action 
sought and may serve notice on any other person that written comments 
regarding the application will be accepted if filed within 10 days of 
service of such notice.
    (d) Any person submitting written comments to the OHA with respect 
to an application filed under this subpart shall send a copy of the 
comments, or a copy from which confidential information has been deleted 
in accordance with Sec. 1003.9(f), to the applicant. The person shall 
certify to the OHA that he has complied with the requirements of this 
paragraph. The OHA may notify other persons participating in the 
proceeding of such comments and provide an opportunity for such persons 
to respond.



Sec. 1003.24  Contents.

    (a) The application shall contain a full and complete statement of 
all relevant facts pertaining to the circumstances, act or transaction 
that is the subject of the application and to the OHA action sought. 
Such facts shall include the names and addresses of all affected persons 
(if reasonably ascertainable); a complete statement of the business or 
other reasons that justify the act or transaction; a description of the 
acts or transactions that would be affected by the requested OHA action; 
and a full discussion of the pertinent provisions and relevant facts 
contained in the documents submitted with the application. Copies of all 
relevant contracts, agreements, leases, instruments, and other documents 
shall be submitted with the application.
    (b) The applicant shall state whether he requests or intends to 
request that there be a conference or hearing regarding the application. 
Any request not made at the time the application is filed shall be made 
as soon thereafter as possible. The request and the OHA determination on 
the request shall be made in accordance with subpart F of this part.
    (c) The application shall include a discussion of all relevant 
authorities, including, but not limited to, DOE rules, regulations, and 
decisions on appeals and exceptions relied upon to support the 
particular action sought therein.
    (d) The application shall specify the exact nature and extent of the 
relief requested.



Sec. 1003.25  OHA evaluation.

    (a)(1) OHA may initiate an investigation of any statement in an 
application and utilize in its evaluation any relevant facts obtained by 
such investigation. The OHA may solicit and accept submissions from 
third persons relevant to any application provided that the applicant is 
afforded an opportunity to respond to all third person submissions. In 
evaluating an application, the OHA may consider any other source of 
information. The OHA on its own initiative may convene a hearing or 
conference, if, in its discretion, it considers that such hearing or 
conference will advance its evaluation of the application. The OHA may 
issue appropriate orders as warranted in the proceeding.
    (2) If the OHA determines that there is insufficient information 
upon which to base a decision and if upon request additional information 
is not submitted by the applicant, the OHA may dismiss the application 
without prejudice. If the failure to supply additional information is 
repeated or willful, the OHA may dismiss the application with prejudice. 
If the applicant fails to provide the notice required by Sec. 1003.23, 
the OHA may dismiss the application without prejudice.
    (b)(1) The OHA shall consider an application for an exception only 
when it determines that a more appropriate proceeding is not provided by 
DOE regulations.

[[Page 755]]

    (2) An application for an exception may be granted to alleviate or 
prevent serious hardship, gross inequity or unfair distribution of 
burdens.
    (3) An application for an exception shall be decided in a manner 
that is, to the extent possible, consistent with the disposition of 
previous applications for exception.



Sec. 1003.26  Decision and Order.

    (a) Upon consideration of the application and other relevant 
information received or obtained during the proceeding, the OHA shall 
issue an order granting or denying the application, in whole or in part.
    (b) The Decision and Order shall include a written statement setting 
forth the relevant facts and the legal basis of the order. The Decision 
and Order shall provide that any person aggrieved thereby may file an 
appeal in accordance with Sec. 1003.27.
    (c) The OHA shall serve a copy of the Decision and Order upon the 
applicant, any other person who participated in the proceeding, and upon 
any other person readily identifiable by the OHA as one who is aggrieved 
by such Decision and Order.



Sec. 1003.27  Appeal of exception order.

    (a) Except as provided in paragraph (b) of this section, any person 
aggrieved by an order issued by the OHA under this subpart may file an 
appeal with the OHA in accordance with subpart C of this part. Any 
appeal filed under this paragraph must be filed within 30 days of 
service, or constructive service under Sec. 1003.14, of the order from 
which the appeal is taken.
    (b) Any person aggrieved or adversely affected by the denial of a 
request for exception relief filed pursuant to Sec. 504 of the 
Department of Energy Organization Act (42 U.S.C. 7194) may appeal to the 
Federal Energy Regulatory Commission, in accordance with the 
Commission's regulations.



                            Subpart C_Appeals



Sec. 1003.30  Purpose and scope.

    This subpart establishes the procedures for the filing of an 
administrative appeal of a DOE order and for the consideration of the 
appeal by the Office of Hearings and Appeals. Unless a program rule or 
regulation or a DOE delegation of authority provides otherwise, a person 
aggrieved by a DOE order appealable under this subpart has not exhausted 
his or her administrative remedies until an appeal has been filed under 
this subpart and an order granting or denying the appeal has been 
issued. A person filing an appeal must also file an ``Application for 
Stay'' under subpart D of this part if the grant of a stay is necessary 
under Section 10(c) of the Administrative Procedure Act (5 U.S.C. 704) 
to preclude judicial review pending final action on the appeal.



Sec. 1003.31  Who may file.

    Any person may file an appeal under this subpart who is so 
authorized by Sec. 1003.27, a program rule or regulation, or a DOE 
delegation of authority.



Sec. 1003.32  What to file.

    A person filing under this subpart shall file an ``Appeal of Order'' 
which should be clearly labeled as such both on the appeal and on the 
outside of the envelope in which the appeal is transmitted, and shall be 
in writing. The general filing requirements stated in Sec. 1003.9 shall 
be complied with in addition to the requirements stated in this subpart.



Sec. 1003.33  Where to file.

    The appeal shall be filed with the OHA at the address provided in 
Sec. 1003.11.



Sec. 1003.34  Notice.

    (a) The appellant shall send by United States mail a copy of the 
appeal and any subsequent amendments or other documents relating to the 
appeal, or a copy from which confidential information has been deleted 
in accordance with Sec. 1003.9(f), to each person who is reasonably 
ascertainable by the appellant as a person who would be aggrieved by the 
OHA action sought, including those who participated in the process that 
led to the issuance of the order from which the appeal has been taken. 
The copy of the appeal shall be accompanied by a statement that the 
person may submit comments regarding the appeal to the OHA within 10

[[Page 756]]

days. The appeal filed with the OHA shall include certification to the 
OHA that the appellant has complied with the requirements of this 
paragraph and shall include the names and addresses of each person to 
whom a copy of the appeal was sent.
    (b) Notwithstanding the provisions of paragraph (a) of this section, 
if any appellant determines that compliance with paragraph (a) of this 
section would be impracticable, the appellant shall:
    (1) Comply with the requirements of paragraph (a) of this section 
with regard to those persons whom it is reasonable and possible to 
notify; and
    (2) Include with the appeal a description of the persons or class or 
classes of persons to whom notice was not sent. The OHA may require the 
appellant to provide additional or alternative notice, may determine 
that the notice required by paragraph (a) of this section is not 
impracticable, or may determine that notice should be published in the 
Federal Register.
    (c) The OHA shall serve notice on any other person readily 
identifiable by the OHA as one who would be aggrieved by the OHA action 
sought and may serve notice on any other person that written comments 
regarding the appeal will be accepted if filed within 10 days of the 
service of that notice.
    (d) Any person submitting written comments to the OHA with respect 
to an appeal filed under this subpart shall send a copy of the comments, 
or a copy from which confidential information has been deleted in 
accordance with Sec. 1003.9(f), to the appellant. The person shall 
certify to the OHA that he has complied with the requirements of this 
paragraph. The OHA may notify other persons participating in the 
proceeding of such comments and provide an opportunity for such persons 
to respond.



Sec. 1003.35  Contents.

    (a) The appeal shall contain a concise statement of grounds upon 
which it is brought and a description of the relief sought. It shall 
include a discussion of all relevant authorities, including, but not 
limited to, DOE rules, regulations, and decisions on appeals and 
exceptions relied upon to support the appeal. If the appeal includes a 
request for relief based on significantly changed circumstances, there 
shall be a complete description of the events, acts, or transactions 
that comprise the significantly changed circumstances, and the appellant 
shall state why, if the significantly changed circumstance is new or 
newly discovered facts, such facts were not or could not have been 
presented during the process that led to the issuance of the order from 
which the appeal has been taken. For purposes of this subpart, the term 
``significantly changed circumstances'' shall mean--
    (1) The discovery of material facts that were not known or could not 
have been known at the time of the process that led to the issuance of 
the order from which the appeal has been taken;
    (2) The discovery of a law, rule, regulation, order or decision on 
an appeal or any exception that was in effect at the time of the process 
that led to the issuance of the order from which the appeal has been 
taken, and which, if such had been made known to DOE, would have been 
relevant and would have substantially altered the outcome; or
    (3) A substantial change in the facts or circumstances upon which an 
outstanding and continuing order affecting the appellant was issued, 
which change has occurred during the interval between issuance of the 
order and the date of the appeal and was caused by forces or 
circumstances beyond the control of the appellant.
    (b) A copy of the order that is the subject of the appeal shall be 
submitted with the appeal.
    (c) The appellant shall state whether he requests or intends to 
request that there be a conference or hearing regarding the appeal. Any 
request not made at the time the appeal is filed shall be made as soon 
thereafter as possible. The request and the OHA determination on the 
request shall be made in accordance with subpart F of this part.



Sec. 1003.36  OHA evaluation.

    (a)(1) The OHA may initiate an investigation of any statement in an 
appeal and utilize in its evaluation any relevant facts obtained by such 
investigation. The OHA may solicit and accept

[[Page 757]]

submissions from third persons relevant to any appeal provided that the 
appellant is afforded an opportunity to respond to all third person 
submissions. In evaluating an appeal, the OHA may consider any other 
source of information. The OHA on its own initiative may convene a 
conference or hearing if, in its discretion, it considers that such 
conference or hearing will advance its evaluation of the appeal.
    (2) If the OHA determines that there is insufficient information 
upon which to base a decision and if, upon request, the necessary 
additional information is not submitted, the OHA may dismiss the appeal 
with leave to refile within a specified time. If the failure to supply 
additional information is repeated or willful, the OHA may dismiss the 
appeal with prejudice. If the appellant fails to provide the notice 
required by Sec. 1003.34, the OHA may dismiss the appeal without 
prejudice.
    (b) The OHA may issue an order summarily denying the appeal if--
    (1) It is not filed in a timely manner, unless good cause is shown; 
or
    (2) It is defective on its face for failure to state, and to present 
facts and legal argument in support thereof, that the DOE action was 
erroneous in fact or in law, or that it was arbitrary or capricious.
    (c) The OHA may deny any appeal if the appellant does not establish 
that--
    (1) The appeal was filed by a person aggrieved by a DOE action;
    (2) The DOE's action was erroneous in fact or in law; or
    (3) The DOE's action was arbitrary or capricious.



Sec. 1003.37  Decision and Order.

    (a) Upon consideration of the appeal and other relevant information 
received or obtained during the proceeding, the OHA shall enter an 
appropriate order, which may include the modification of the order that 
is the subject of the appeal.
    (b) The Decision and Order shall include a written statement setting 
forth the relevant facts and the legal basis of the Decision and Order. 
The Decision and Order shall state that it is a final order of the DOE 
of which the appellant may seek judicial review.
    (c) The OHA shall serve a copy of the Decision and Order upon the 
appellant, any other person who participated in the proceeding, and upon 
any other person readily identifiable by the OHA as one who is aggrieved 
by such Decision and Order.



                             Subpart D_Stays



Sec. 1003.40  Purpose and scope.

    (a) This subpart establishes the procedures for applying for a stay. 
It also specifies the nature of the relief which may be effectuated 
through the approval of a stay.
    (b) An application for a stay will be considered if it is incident 
to a submission over which OHA has jurisdiction. An application for stay 
may also be considered if the stay is requested pending judicial review 
of an order issued by the OHA.
    (c) All applicable DOE rules, regulations, orders, and generally 
applicable requirements shall be complied with unless and until an 
application for a stay is granted.



Sec. 1003.41  What to file.

    A person filing under this subpart shall file an ``Application for 
Stay'' which should be clearly labeled as such both on the application 
and on the outside of the envelope in which the application is 
transmitted. The application shall be in writing. The general filing 
requirements stated in Sec. 1003.9 shall be complied with in addition 
to the requirements stated in this subpart.



Sec. 1003.42  Where to file.

    An Application for Stay shall be filed with the OHA at the address 
provided in Sec. 1003.11.



Sec. 1003.43  Notice.

    (a) An applicant for stay shall notify each person readily 
identifiable as one who will be directly aggrieved by the OHA action 
sought that it has filed an Application for Stay. The applicant shall 
serve the application on each identified person and shall notify each 
such person that the OHA will receive and endeavor to consider, subject 
to

[[Page 758]]

time constraints imposed by the urgency of the proceeding, written 
comments on the application that are submitted immediately.
    (b) Any person submitting written comments to the OHA with respect 
to an application filed under this subpart shall send a copy of the 
comments, or a copy from which confidential information has been deleted 
in accordance with Sec. 1003.9(f), to the applicant. The person shall 
certify to the OHA that he has complied with the requirements of this 
paragraph. The OHA may notify other persons participating in the 
proceeding of such comments and provide an opportunity for such persons 
to respond.
    (c) The OHA shall require the applicant to take reasonable measures 
depending on the circumstances and urgency of the case to notify each 
person readily identified as one that would be directly aggrieved by the 
OHA action sought of the date, time and place of any hearing or other 
proceedings in the matter. However, if the Director of the OHA concludes 
that the circumstances presented by the applicant justify immediate 
action, the OHA may issue a Decision on the Application for Stay prior 
to receipt of written comments or the oral presentation of views by 
adversely affected parties.



Sec. 1003.44  Contents.

    (a) An Application for Stay shall contain a full and complete 
statement of all relevant facts pertaining to the act or transaction 
that is the subject of the application and to the OHA action sought. 
Such facts shall include, but not be limited to, all information that 
relates to satisfaction of the criteria in Sec. 1003.45(b).
    (b) The application shall include a description of the proceeding 
incident to which the stay is being sought. This description shall 
contain a discussion of all DOE actions relevant to the proceeding.
    (c) The applicant shall state whether he requests that a conference 
or hearing be convened regarding the application, as provided in subpart 
F of this part.



Sec. 1003.45  OHA evaluation.

    (a)(1) The OHA may initiate an investigation of any statement in an 
application and utilize in its evaluation any relevant facts obtained by 
such investigation. The OHA may order the submission of additional 
information, and may solicit and accept submissions from third persons 
relevant to an application provided that the applicant is afforded an 
opportunity to respond to all third person submissions. In evaluating an 
application, the OHA may also consider any other source of information, 
and may conduct hearings or conferences either in response to requests 
by parties in the proceeding or on its own initiative.
    (2) If the OHA determines that there is insufficient information 
upon which to base a decision and if upon request additional information 
is not submitted by the applicant, the OHA may dismiss the application 
without prejudice. If the failure to supply additional information is 
repeated or willful, the OHA may dismiss the application with prejudice.
    (3) The OHA shall process applications for stay as expeditiously as 
possible. When administratively feasible, the OHA shall grant or deny an 
Application for Stay within 10 business days after receipt of the 
application.
    (4) Notwithstanding any other provision of the DOE regulations, the 
OHA may make a decision on any Application for Stay prior to the receipt 
of written comments.
    (b) The criteria to be considered and weighed by the OHA in 
determining whether a stay should be granted are:
    (1) Whether a showing has been made that an irreparable injury will 
result in the event that the stay is denied;
    (2) Whether a showing has been made that a denial of the stay will 
result in a more immediate hardship or inequity to the applicant than a 
grant of the stay would cause to other persons affected by the 
proceeding;
    (3) Whether a showing has been made that it would be desirable for 
public policy reasons to grant immediate relief pending a decision by 
OHA on the merits;
    (4) Whether a showing has been made that it is impossible for the 
applicant

[[Page 759]]

to fulfill the requirements of an outstanding order or regulatory 
provision; and
    (5) Whether a showing has been made that there is a strong 
likelihood of success on the merits.



Sec. 1003.46  Decision and Order.

    (a) In reaching a decision with respect to an Application for Stay, 
the OHA shall consider all relevant information in the record. An 
Application for Stay may be decided by the issuance of an order either 
during the course of a hearing or conference in which an official 
transcript is maintained or in a separate written Decision and Order. 
Any such order shall include a statement of the relevant facts and the 
legal basis of the decision. The approval or denial of a stay is not an 
order of the OHA that is subject to administrative or judicial review.
    (b) In its discretion and upon a determination that it would be 
desirable to do so in order to further the objectives stated in the 
regulations or in the statutes the DOE is responsible for administering, 
the OHA may order a stay on its own initiative.



                  Subpart E_Modification or Rescission



Sec. 1003.50  Purpose and scope.

    This subpart establishes the procedures for the filing of an 
application for modification or rescission of a DOE order. An 
application for modification or rescission is a summary proceeding that 
will be initiated only if the criteria described in Sec. 1003.55(b) are 
satisfied.



Sec. 1003.51  What to file.

    A person filing under this subpart shall file an ``Application for 
Modification (or Rescission),'' which should be clearly labeled as such 
both on the application and on the outside of the envelope in which the 
application is transmitted, and shall be in writing. The general filing 
requirements stated in Sec. 1003.9 shall be complied with in addition 
to the requirements stated in this subpart.



Sec. 1003.52  Where to file.

    The application shall be filed with the OHA at the address provided 
in Sec. 1003.11.



Sec. 1003.53  Notice.

    (a) The applicant shall send by United States mail a copy of the 
application and any subsequent amendments or other documents relating to 
the application, from which confidential information has been deleted in 
accordance with Sec. 1003.9(f), to each person who is reasonably 
ascertainable by the applicant as a person who would be aggrieved by the 
OHA action sought, including persons who participated in the process 
that led to the issuance of the order for which the modification or 
rescission is sought. The copy of the application shall be accompanied 
by a statement that the person may submit comments regarding the 
application to the OHA within 10 days. The application filed with the 
OHA shall include certification to the OHA that the applicant has 
complied with the requirements of this paragraph and shall include the 
names and addresses of all persons to whom a copy of the application was 
sent.
    (b) If an applicant determines that compliance with paragraph (a) of 
this section would be impracticable, the applicant shall:
    (1) Comply with the requirements of paragraph (a) of this section 
with regard to those persons whom it is reasonable and possible to 
notify; and
    (2) Include with the application a description of the persons or 
class or classes of persons to whom notice was not sent. The OHA may 
require the applicant to provide additional or alternative notice, may 
determine that the notice required by paragraph (a) of this section is 
not impracticable, or may determine that notice should be published in 
the Federal Register.
    (c) The OHA shall serve notice on any other person readily 
identifiable by the OHA as one who would be aggrieved by the OHA action 
sought and may serve notice on any other person that written comments 
regarding the application will be accepted if filed within 10 days of 
service of that notice.
    (d) Any person submitting written comments to the OHA with respect 
to

[[Page 760]]

an application filed under this subpart shall send a copy of the 
comments, or a copy from which confidential information has been deleted 
in accordance with Sec. 1003.9(f), to the applicant. The person shall 
certify to the OHA that he has complied with the requirement of this 
paragraph. The OHA may notify other persons participating in the 
proceeding of such comments and provide an opportunity for such persons 
to respond.



Sec. 1003.54  Contents.

    (a) The application shall contain a full and complete statement of 
all relevant facts pertaining to the circumstances, act or transaction 
that is the subject of the application and to the OHA action sought. 
Such facts shall include the names and addresses of all affected persons 
(if reasonably ascertainable), a complete statement of the business or 
other reasons that justify the act or transaction, a description of the 
acts or transactions that would be affected by the requested action, and 
a full description of the pertinent provisions and relevant facts 
contained in any relevant documents. Copies of all contracts, 
agreements, leases, instruments, and other documents relevant to the 
application shall be submitted to the OHA upon its request. A copy of 
the order of which modification or rescission is sought shall be 
included with the application.
    (b) The applicant shall state whether he requests or intends to 
request that there be a conference regarding the application. Any 
request not made at the time the application is filed shall be made as 
soon thereafter as possible. The request and the OHA determination on 
the request shall be made in accordance with subpart F of this part.
    (c) The applicant shall fully describe the events, acts, or 
transactions that comprise the significantly changed circumstances, as 
defined in Sec. 1003.55(b)(2), upon which the application is based. The 
applicant shall state why, if the significantly changed circumstance is 
new or newly discovered facts, such facts were not or could not have 
been presented during the process that led to the issuance of the order 
for which modification or rescission is sought.
    (d) The application shall include a discussion of all relevant 
authorities, including, but not limited to, DOE rules, regulations, and 
decisions on appeal and exceptions relied upon to support the action 
sought therein.



Sec. 1003.55  OHA evaluation.

    (a)(1) The OHA may initiate an investigation of any statement in an 
application and utilize in its evaluation any relevant facts obtained by 
such investigation. The OHA may solicit and accept submissions from 
third persons relevant to any application for modification or rescission 
provided that the applicant is afforded an opportunity to respond to all 
third person submissions. In evaluating an application for modification 
or rescission, the OHA may convene a conference, on its own initiative, 
if, in its discretion, it considers that such conference will advance 
its evaluation of the application.
    (2) If the OHA determines that there is insufficient information 
upon which to base a decision and if upon request the necessary 
additional information is not submitted, the OHA may dismiss the 
application without prejudice. If the failure to supply additional 
information is repeated or willful, the OHA may dismiss the application 
with prejudice. If the applicant fails to provide the notice required by 
Sec. 1003.53, the OHA may dismiss the application without prejudice.
    (b)(1) An application for modification or rescission of an order 
shall be processed only if--
    (i) The application demonstrates that it is based on significantly 
changed circumstances; and
    (ii) The period within which a person may file an appeal has lapsed 
or, if an appeal has been filed, a final order has been issued.
    (2) For purposes of this subpart, the term ``significantly changed 
circumstances'' shall mean--
    (i) The discovery of material facts that were not known or could not 
have been known at the time of the proceeding and action upon which the 
application is based;
    (ii) The discovery of a law, rule, regulation, order or decision on 
appeal or exception that was in effect at the time

[[Page 761]]

of the proceeding upon which the application is based and which, if such 
had been made known to the OHA, would have been relevant to the 
proceeding and would have substantially altered the outcome; or
    (iii) There has been a substantial change in the facts or 
circumstances upon which an outstanding and continuing order of the OHA 
affecting the applicant was issued, which change has occurred during the 
interval between issuance of such order and the date of the application 
and was caused by forces or circumstances beyond the control of the 
applicant.



Sec. 1003.56  Decision and Order.

    (a) Upon consideration of the application and other relevant 
information received or obtained during the proceeding, the OHA shall 
issue a Decision and Order granting or denying the application.
    (b) The Decision and Order shall include a written statement setting 
forth the relevant facts and the legal basis of the Decision and Order. 
When appropriate, the Decision and Order shall state that it is a final 
order of which the applicant may seek judicial review.
    (c) The OHA shall serve a copy of the Decision and Order upon the 
applicant, any other person who participated in the proceeding and upon 
any other person readily identifiable by the OHA as one who is aggrieved 
by such Decision and Order.



                   Subpart F_Conferences and Hearings



Sec. 1003.60  Purpose and scope.

    This subpart establishes the procedures for requesting and 
conducting an OHA conference or hearing. Such proceedings shall be 
convened in the discretion of the OHA, consistent with OHA requirements.



Sec. 1003.61  Conferences.

    (a) The OHA in its discretion may direct that a conference be 
convened, on its own initiative or upon request by a person, when it 
appears that such conference will materially advance the proceeding. The 
determination as to who may attend a conference convened under this 
subpart shall be in the discretion of the OHA, but a conference will 
usually not be open to the public.
    (b) A conference may be requested in connection with any proceeding 
of the OHA by any person who would be aggrieved by that proceeding. The 
request may be made in writing or verbally, but must include a specific 
showing as to why such conference will materially advance the 
proceeding. The request shall be addressed to the OHA, as provided in 
Sec. 1003.11.
    (c) A conference may only be convened after actual notice of the 
time, place and nature of the conference is provided to the person who 
requested the conference.
    (d) When a conference is convened in accordance with this section, 
each person may present views as to the issues involved. Documentary 
evidence may be presented at the conference, but will be treated as if 
submitted in the regular course of the proceeding. A transcript of the 
conference will not usually be prepared. However, the OHA in its 
discretion may have a verbatim transcript prepared.
    (e) Because a conference is solely for the exchange of views 
incident to a proceeding, there will be no formal reports or findings 
unless the OHA in its discretion determines that such would be 
advisable.



Sec. 1003.62  Hearings.

    (a) The OHA in its discretion may direct that a hearing be convened 
on its own initiative or upon request by a person, when it appears that 
such hearing will materially advance the proceeding. All hearings 
convened pursuant to this subpart shall be conducted by the Director of 
the OHA or his designee. The determination as to who may attend a 
hearing convened under this subpart shall be in the discretion of OHA. 
Hearings will be open to the public, but may be closed at the discretion 
of OHA if the reason is put in the record.
    (b) A hearing may be requested by an applicant, appellant, or any 
other person who would be aggrieved by the OHA action sought. The 
request shall be in writing and shall include a specific showing as to 
why such hearing will materially advance the proceeding. The request 
shall be addressed

[[Page 762]]

to the OHA at the address provided in Sec. 1003.11.
    (c) A hearing may be convened only after actual notice of the time, 
place, and nature of the hearing is provided both to the applicant or 
appellant and to any other person readily identifiable by the OHA as one 
who would be aggrieved by the OHA action involved. The notice shall 
include, as appropriate:
    (1) A statement that such person may participate in the hearing; or
    (2) A statement that such person may request a separate conference 
or hearing regarding the application or appeal.
    (d) When a hearing is convened in accordance with this section, each 
person may present views as to the issue or issues involved. Documentary 
evidence may be presented at the hearing, but will be treated as if 
submitted in the regular course of the proceeding. A transcript of the 
hearing will be prepared.
    (e) If material factual issues remain in dispute after an 
application or appeal has been filed, the Director of the OHA or his 
designee may issue an order convening an evidentiary hearing in which 
witnesses shall testify under oath, subject to cross-examination, for 
the record and in the presence of a Presiding Officer. A Motion for 
Evidentiary Hearing should specify the type of witness or witnesses 
whose testimony is sought, the scope of questioning that is anticipated, 
and the relevance of the questioning to the proceeding. A motion may be 
summarily denied for lack of sufficient specificity, because an 
evidentiary hearing would place an undue burden on another person or the 
DOE, or because an evidentiary hearing would cause undue delay.
    (f) A Motion for Evidentiary Hearing must be served on any person 
from whom information is sought and on parties to the underlying 
administrative action. Any person who wishes to respond to a Motion for 
Evidentiary Hearing must do so within ten days of service.
    (g) In reaching a decision with respect to a request for a hearing 
or motion filed under this subpart, the OHA shall consider all relevant 
information in the record. If an order is issued granting a hearing or 
evidentiary hearing, in whole or in part, the order shall specify the 
parties, any limitations on the participation of a party, and the issues 
to be considered. An order of the OHA issued under this section is an 
interlocutory order which is subject to further administrative review or 
appeal only upon issuance of a final Decision and Order in the 
proceeding concerned.
    (h) At any evidentiary hearing, the parties shall have the 
opportunity to present material evidence that directly relates to a 
particular issue set forth for hearing. The Presiding Officer may 
administer oaths or affirmations, rule on objections to the presentation 
of evidence, receive relevant material, require the advance submission 
of documents offered as evidence, dispose of procedural requests, 
determine the format of the hearing, modify any order granting a Motion 
for Evidentiary Hearing, direct that written motions, documents or 
briefs be filed with respect to issues raised during the course of the 
hearing, ask questions of witnesses, issue subpoenas, direct that 
documentary evidence be served upon other parties (under protective 
order if such evidence is deemed confidential) and otherwise regulate 
the conduct of the hearing.



                Subpart G_Private Grievances and Redress



Sec. 1003.70  Purpose and scope.

    The OHA shall receive and consider petitions that seek special 
redress relief or other extraordinary assistance as provided for in the 
Federal Energy Administration Act of 1974, Section 21 (15 U.S.C. 780), 
apart from or in addition to the other proceedings described in this 
part. This subpart may also apply if cross referenced in another DOE 
rule or regulation, or in a DOE delegation of authority. Petitions under 
this subpart shall include those seeking special assistance based on an 
assertion that DOE is not complying with its rules, regulations, or 
orders.



Sec. 1003.71  Who may file.

    Any person may file a petition under this subpart who is adversely 
affected by any DOE rule, regulation or order

[[Page 763]]

subject to 15 U.S.C. 780 or who is so authorized by a program rule or 
regulation or a DOE delegation of authority.



Sec. 1003.72  What to file.

    The person seeking relief under this subpart shall file a ``Petition 
for Special Redress or Other Relief,'' which shall be clearly labeled as 
such both on the petition and on the outside of the envelope in which it 
is transmitted, and shall be in writing. The general filing requirements 
stated in Sec. 1003.9 shall be complied with in addition to the 
requirements stated in this subpart.



Sec. 1003.73  Where to file.

    A petition shall be filed with the OHA at the address provided in 
Sec. 1003.11.



Sec. 1003.74  Notice.

    (a) The person filing the petition, except a petition that asserts 
that the DOE is not complying with agency rules, regulations, or orders, 
shall send by United States mail a copy of the petition and any 
subsequent amendments or other documents relating to the petition, or a 
copy from which confidential information has been deleted in accordance 
with Sec. 1003.9(f), to each person who is reasonably ascertainable by 
the petitioner as a person who would be aggrieved by the OHA action 
sought. The copy of the petition shall be accompanied by a statement 
that the person may submit comments regarding the petition to the OHA 
within 10 days. The copy filed with the OHA shall include certification 
that the requirements of this paragraph have been complied with and 
shall include the names and addresses of each person to whom a copy of 
the petition was sent.
    (b) Notwithstanding the provisions of paragraph (a) of this section, 
if the petitioner determines that compliance with paragraph (a) of this 
section would be impracticable, the petitioner shall:
    (1) Comply with the requirements of paragraph (a) of this section 
with regard to those persons whom it is reasonable and practicable to 
notify; and
    (2) Include with the petition a description of the persons or class 
or classes of persons to whom notice was not sent.
    (3) The OHA may require the petitioner to provide additional or 
alternative notice, or may determine that the notice required by 
paragraph (a) of this section is not impracticable, or may determine 
that notice should be published in the Federal Register.
    (c) The OHA shall serve notice on any other person readily 
identifiable by the OHA as one who would be aggrieved by the OHA action 
sought and may serve notice on any other person that written comments 
regarding the petition will be accepted if filed within 10 days of 
service of that notice.
    (d) Any person submitting written comments to the OHA regarding a 
petition filed under his subpart shall send a copy of the comments, or a 
copy from which confidential information has been deleted in accordance 
with Sec. 1003.9(f), to the petitioner. The person shall certify to the 
OHA that he has complied with the requirements of this paragraph. The 
OHA may notify other persons participating in the proceeding of such 
comments and provide an opportunity for such persons to respond.



Sec. 1003.75  Contents.

    The petition shall contain a full and complete statement of all 
relevant facts pertaining to the circumstances, act or transaction that 
is the subject of the petition and to the OHA action sought. Such facts 
shall include, but not be limited to, the names and addresses of all 
affected persons (if reasonably ascertainable); a complete statement of 
the business or other reasons that justify the act or transaction, if 
applicable; a description of the act or transaction, if applicable; a 
description of the acts or transactions that would be affected by the 
requested action; a full discussion of the pertinent provisions and 
relevant facts contained in the documents submitted with the petition, 
and an explanation of how the petitioner is aggrieved by DOE's position. 
Copies of all contracts, agreements, leases, instruments, and other 
documents relevant to the petition shall be submitted to the OHA upon 
its request.



Sec. 1003.76  OHA evaluation of request.

    (a)(1) The OHA may initiate an investigation of any statement in a 
petition

[[Page 764]]

and utilize in its evaluation any relevant facts obtained by such 
investigation. The OHA may solicit and accept submissions from third 
persons relevant to any petition provided that the petitioner is 
afforded an opportunity to respond to all third person submissions. In 
evaluating a petition, the OHA may consider any other source of 
information. The OHA on its own initiative may convene a conference, if, 
in its discretion, it considers that such will advance its evaluation of 
the petition.
    (2) If the OHA determines that there is insufficient information 
upon which to base a decision and if, upon request, the necessary 
additional information is not submitted, the OHA may dismiss the 
petition without prejudice. If the failure to supply additional 
information is repeated or willful, the OHA may dismiss the petition 
with prejudice. If the petitioner fails to provide the notice required 
by Sec. 1003.74, the OHA may dismiss the petition without prejudice.
    (b)(1) The OHA will dismiss without prejudice a ``Petition for 
Special Redress or Other Relief'' if it determines that another more 
appropriate proceeding is provided by this part.
    (2) The OHA will dismiss with prejudice a ``Petition for Special 
Redress or Other Relief'' filed by a person who has exhausted his 
administrative remedies with respect to any proceeding provided by this 
part, and received a final order therefrom that addresses the same issue 
or transaction.



Sec. 1003.77  Decision and Order.

    (a) Upon consideration of the petition and other relevant 
information received or obtained during the proceeding, the OHA will 
issue a Decision and Order granting or denying the petition.
    (b) The Decision and Order denying or granting the petition shall 
include a written statement setting forth the relevant facts and legal 
basis for the Decision and Order. Such Decision and Order shall state 
that it is a final order of the DOE of which the petitioner may seek 
judicial review.



PART 1004_FREEDOM OF INFORMATION--Table of Contents



Sec.
1004.1 Purpose and scope.
1004.2 Definitions.
1004.3 Public reading facilities and policy on contractor records.
1004.4 Elements of a request.
1004.5 Processing requests for records.
1004.6 Requests for classified records.
1004.7 Responses by authorizing officials: Form and content.
1004.8 Appeals of initial denials.
1004.9 Fees for providing records.
1004.10 Exemptions.
1004.11 Handling information of a private business, foreign government, 
          or an international organization.
1004.12 Computation of time.

    Authority: 5 U.S.C. 552.

    Source: 53 FR 15661, May 3, 1988, unless otherwise noted.



Sec. 1004.1  Purpose and scope.

    This part contains the regulations of the Department of Energy (DOE) 
that implement 5 U.S.C. 552, Pub. L. 89-487, as amended by Pub. L. 93-
502, 88 Stat. 1561, by Pub. L. 94-409, 90 Stat. 1241, and by Pub. L. 99-
570, 100 Stat. 3207-49. The regulations of this part provide information 
concerning the procedures by which records may be requested from all DOE 
offices, excluding the Federal Energy Regulatory Commission (FERC). 
Records of the DOE made available pursuant to the requirements of 5 
U.S.C. 552 shall be furnished to members of the public as prescribed by 
this part. Persons seeking information or records of the DOE may find it 
helpful to consult with a DOE Freedom of Information Officer before 
invoking the formal procedures set out below. To the extent permitted by 
other laws, the DOE will make records available which it is authorized 
to withhold under 5 U.S.C. 552 whenever it determines that such 
disclosure is in the public interest.



Sec. 1004.2  Definitions.

    As used in this part:
    (a) Appeal Authority means the Office of Hearings and Appeals.
    (b) Authorizing or Denying Official means that DOE officer as 
identified by the Directorate of Administration by separate directive, 
having custody of or

[[Page 765]]

responsibility for records requested under 5 U.S.C. 552. In DOE 
Headquarters, the term refers to The Freedom of Information Officer as 
defined below and officials who report directly to either the Office of 
the Secretary or a Secretarial Officer as also defined below. In the 
Field Offices, the term refers to the head of a field location 
identified in Sec. 1004.2(h) and the heads of field offices to which 
they provide administrative support and have delegated this authority.
    (c) `Commercial use' request refers to a request from or on behalf 
of one who seeks information for a use or purpose that furthers the 
commercial, trade, or profit interests of the requester or the person on 
whose behalf the request is made. In determining whether a requester 
properly belongs in this category, agencies must determine how the 
requester will use the documents requested. Moreover, where DOE has 
reasonable cause to doubt the use to which a requester will put the 
records sought, or where that use is not evident from the request 
itself, the DOE will seek additional clarification before assigning the 
request to a specific category.
    (d) Department or Department of Energy (DOE) means all 
organizational entities which are a part of the executive department 
created by Title II of the DOE Organization Act, Pub L. 95-91. This 
specifically excludes the FERC.
    (e) Direct costs means those expenditures which the DOE actually 
incurs in searching for and duplicating (and in the case of commercial 
requesters, reviewing) documents to respond to a FOIA request. Direct 
costs include, for example, the salary of the employee performing the 
work (the basic rate of pay for the employee plus 16 percent of that 
rate to cover benefits) and the cost of operating duplicating machinery. 
Not included in direct costs are overhead expenses such as costs of 
space, and heating or lighting the facility in which the records are 
stored.
    (f) Duplication refers to the process of making a copy of a document 
necessary to respond to a FOIA request. Such copies can take the form 
of, but are not limited to, paper copy, microform, audiovisual 
materials, or machine readable documentation (e.g., magnetic tape or 
disk). The copy provided must be in a form that can be reasonably used 
by requesters.
    (g) Educational institution refers to a preschool, a public or 
private elementary or secondary school, an institution of graduate 
higher education, an institution of undergraduate higher education, an 
institution of professional education, and an institution of vocational 
education, which operates a program or programs of scholarly research.
    (h) Freedom of Information Officer means the person designated to 
administer the Freedom of Information Act at the following DOE offices:
    (1) Bonneville Power Administration, P.O. Box 3621-KDP-7, Portland, 
OR 97232.
    (2) Carlsbad Field Office, P.O. Box 3090, Carlsbad, NM 88221.
    (3) Chicago Office, 9800 S. Cass Avenue, Argonne, IL 60439.
    (4) Environmental Management Consolidated Business Center, 250 East 
5th Street, Suite 500, Cincinnati, OH 45202.
    (5) Golden Field Office, 1617 Cole Boulevard, Golden, CO 80401.
    (6) Headquarters, Department of Energy, Washington, DC 20585.
    (7) Idaho Operations Office, 1955 Fremont Avenue, MS 1203, Idaho 
Falls, ID 83401.
    (8) National Nuclear Security Administration Service Center, P.O. 
Box 5400, Albuquerque, NM 87185-5400.
    (9) National Nuclear Security Administration Nevada Site Office, 
P.O. Box 98518, Las Vegas, NV 89193-3521.
    (10) National Energy Technology Laboratory, 3610 Collins Ferry Road, 
Morgantown, WV 26507-0800.
    (11) Oak Ridge Office, P.O. Box 2001, Oak Ridge, TN 37831.
    (12) Office of Scientific and Technical Information, P.O. Box 2001, 
Oak Ridge, TN 37831.
    (13) Pacific Northwest Site Office, P.O. Box 350, Mail Stop K8-50, 
Richland, WA 99352.
    (14) Pittsburgh Naval Reactors, P.O. Box 109, West Mifflin, PA 
15122-0109.
    (15) Richland Operations Office, P.O. Box 550, Mail Stop A7-75, 
Richland, WA 99352.
    (16) Savannah River Operations Office, P.O. Box A, Aiken, SC 29801.

[[Page 766]]

    (17) Schenectady Naval Reactors, P.O. Box 1069, Schenectady, NY 
12301.
    (18) Southeastern Power Administration, 1166 Athens Tech Road, 
Elberton, GA 30635-6711.
    (19) Southwestern Power Administration, One West Third, S1200, 
Tulsa, OK 74103.
    (20) Strategic Petroleum Reserve Project Management Office, 900 
Commerce Road East-MS FE-455, New Orleans, LA 70123.
    (21) Western Area Power Administration, 12155 W. Alameda Parkway, 
P.O. Box 281213, Lakewood, CO 80228-8213.
    (i) General Counsel means the General Counsel provided for in 
section 202(b) of the DOE Organization Act, or any DOE attorney 
designated by the General Counsel as having responsibility for 
counseling the Department on Freedom of Information Act matters.
    (j) Headquarters means all DOE facilities functioning within the 
Washington metropolitan area.
    (k) Non-commercial scientific institution refers to an institution 
that is not operated on a ``commercial'' basis as that term is 
referenced in Sec. 1004.2(c), and which is operated solely for the 
purpose of conducting scientific research, the results of which are not 
intended to promote any particular product or industry.
    (l) Office means any administrative or operating unit of the DOE, 
including those in field offices.
    (m) Representative of the news media refers to any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term news means information that is 
about current events or that would be of current interest to the public. 
Examples of news media entities include television or radio stations 
broadcasting to the public at large, and publishers of periodicals (but 
only in those instances when they can qualify as disseminators of 
``news'') who make their products available for purchase or subscription 
by the general public. These examples are not intended to be all-
inclusive.
    Moreover, as traditional methods of news delivery evolve (e.g., 
electronic dissemination of newspapers through telecommunications 
services), such alternative media would be included in this category. In 
the case of ``freelance'' journalists, they may be regarded as working 
for a news organization if they can demonstrate a solid basis for 
expecting publication through that organization, even though not 
actually employed by it. A publication contract would be the clearest 
proof, but agencies may also look to the past publication record of a 
requester in making this determination.
    (n) Review refers to the process of examining documents located in 
response to a commercial use request (see Sec. 1004.2(c)) to determine 
whether any portion of any document located is permitted to be withheld. 
It also includes processing any documents for disclosure, e.g., doing 
all that is necessary to excise them and otherwise pepare them for 
release. Review does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    (o) Search includes all time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material within documents. The DOE will search for 
material in the most efficient and least expensive manner in order to 
minimize cost for both DOE and the requester. For example, DOE will not 
engage in line-by-line search when merely duplicating an entire document 
would prove the less expensive and quicker method of complying with a 
request. ``Search'' will be distinguished, moreover, from ``review'' of 
material in order to determine whether the material is exempt from 
disclosure. Searches may be done manually or by computer using existing 
programming.
    (p) Secretarial Officer means the Under Secretary; Under Secretary 
for Science; Administrator, Energy Information Administration; 
Administrator, National Nuclear Security Administration; Assistant 
Secretary for Congressional and Intergovernmental Affairs; Assistant 
Secretary for Energy Efficiency and Renewable Energy; Assistant 
Secretary for Environmental Management; Assistant Secretary for Fossil 
Energy; Assistant Secretary for Policy and International Affairs; 
Assistant Secretary for Nuclear Energy; Chief Financial Officer; Chief 
Health, Safety

[[Page 767]]

and Security Officer; Chief Human Capital Officer; Chief Information 
Officer; Director, Office of Civilian Radioactive Waste Management; 
Director, Office of Economic Impact and Diversity; Director, Office of 
Electricity Delivery and Energy Reliability; Director, Office of 
Hearings and Appeals; Director, Office of Legacy Management; Director, 
Office of Management; Director, Office of Public Affairs; Director, 
Office of Science; General Counsel; Inspector General; and Senior 
Intelligence Officer.
    (q) Statute specifically providing for setting the level of fees for 
particular types of records, at 5 U.S.C. 552(a)(4)(A)(vi), means any 
statute that specifically requires a government agency, such as the 
Government Printing Office (GPO) or the National Technical Information 
Service (NTIS), to set the level of fees for particular types of 
records, in order to:
    (1) Serve both the general public and private sector organizations 
by conveniently making available government information;
    (2) Ensure that groups and individuals pay the cost of publications 
and other services which are for their special use so that these costs 
are not borne by the general taxpaying public;
    (3) Operate an information dissemination activity on a self-
sustaining basis to the maximum extent possible; or
    (4) Return revenue to the Treasury for defraying, wholly or in part, 
appropriated funds used to pay the cost of disseminating government 
information.

[53 FR 15661, May 3, 1988, as amended at 71 FR 68734, Nov. 28, 2006]



Sec. 1004.3  Public reading facilities and policy on contractor records.

    (a) The DOE Headquarters will maintain, in the public reading 
facilities, the materials which are required by 5 U.S.C. 552(a)(2) to be 
made available for public inspection and copying. The principal public 
reading facility will be located at the Freedom of Information Office, 
1000 Independence Avenue, SW, Washington, DC. A complete listing of 
other facilities is available from the Freedom of Information Officer at 
DOE Headquarters.
    (b) Each of the designated field offices will maintain in public 
reading facilities certain materials maintained in the Headquarters 
facility and other materials associated with the particular field 
offices.
    (c) Each of these public reading facilities will maintain and make 
available for public inspection and copying current indices of the 
materials at that facility which are required to be indexed by 5 U.S.C. 
552(a)(2) or other applicable statutes.
    (d) [Reserved]
    (e) Contractor Records. (1) When a contract with DOE provides that 
any records acquired or generated by the contractor in its performance 
of the contract shall be the property of the Government, DOE will make 
available to the public such records that are in the possession of the 
Government or the contractor, unless the records are exempt from public 
disclosure under 5 U.S.C. 552(b)(2).
    (2) Notwithstanding paragraph (e)(1) of this section, records owned 
by the Government under contract that contain information or technical 
data having commercial value as defined in Sec. 1004.3(e)(4) or 
information for which the contractor claims a privilege recognized under 
Federal or State law shall be made available only when they are in the 
possession of the Government and not otherwise exempt under 5 U.S.C. 
552(b).
    (3) The policies stated in this paragraph:
    (i) Do not affect or alter contractors' obligations to provide to 
DOE upon request any records that DOE owns under contract, or DOE's 
rights under contract to obtain any contractor records and to determine 
their disposition, including public dissemination; and
    (ii) Will be applied by DOE to maximize public disclosure of records 
that pertain to concerns about the environment, public health or safety, 
or employee grievances.
    (4) For purposes of Sec. 1004.3(e)(2), ``technical data and 
information having commercial value'' means technical data and related 
commercial or financial information which is generated or acquired by a 
contractor and possessed by that contractor, and whose disclosure the 
contractor certifies to DOE

[[Page 768]]

would cause competitive harm to the commercial value or use of the 
information or data.

[53 FR 15661, May 3, 1988, as amended at 59 FR 63884, Dec. 12, 1994]



Sec. 1004.4  Elements of a request.

    (a) Addressed to the Freedom of Information Officer. A request for a 
record of the DOE which is not available in a public reading facility, 
as described in Sec. 1004.3, shall be addressed to the appropriate 
Headquarters or field Freedom of Information Officer, Department of 
Energy, at a location listed in Sec. 1004.2(h) of this part, and both 
the envelope and the letter shall be clearly marked ``Freedom of 
Information Request.'' Except as provided in Sec. 1004.4(e), a request 
will be considered to be received by the DOE for purposes of 5 U.S.C. 
552(a)(6) upon actual receipt by the Freedom of Information Officer. 
Requests delivered after regular business hours of the Freedom of 
Information Office are considered received on the next regular business 
day.
    (b) Request must be in writing and for reasonably described records. 
A request for access to records must be submitted in writing and must 
reasonably describe the records requested to enable DOE personnel to 
locate them with a reasonable amount of effort. Where possible, specific 
information regarding dates, titles, file designations, and other 
information which may help identify the records should be supplied by 
the requester, including the names and titles of any DOE officers or 
employees who have been contacted regarding the request prior to the 
submission of a written request. If the request relates to a matter in 
pending litigation, the court and its location should be identified to 
aid in locating the documents. If the records are known to be in a 
particular office of the DOE, the request should identify that office.
    (c) Categorical requests. (1) Must meet reasonably described records 
requirement. A request for all records falling within a reasonably 
specific and well-defined category shall be regarded as conforming to 
the statutory requirement that records be reasonably described if DOE 
personnel can reasonably determine which particular records are sought 
in the request. The request must enable the DOE to identify and locate 
the records sought by a process that is not unreasonably burdensome or 
disruptive of DOE operations. The Freedom of Information Officer may 
take into consideration problems of search which are associated with the 
files of an individual office within the Department and determine that a 
request is not one for reasonably described documents as it pertains to 
that office.
    (2) Assistance in reformulating a non-conforming request. If a 
request does not reasonably describe the records sought, as specified in 
paragraph (c)(1) of this section, the DOE response will specify the 
reasons why the request failed to meet the requiremnts of paragraph 
(c)(1) of this section and will invite the requester to confer with 
knowledgeable DOE personnel in an attempt to restate the request or 
reduce the request to managable proportions by reformulation or by 
agreeing on an orderly procedure for the production of the records. If 
DOE responds that additional information is needed from the requester to 
render records reasonably described, any reformulated request submitted 
by the requester will be treated as an initial request for purposes of 
calculating the time for DOE response.
    (d) Nonexistent records. (1) 5 U.S.C. 552 does not require the 
compilation or creation of a record for the purpose of satisfying a 
request for records.
    (2) 5 U.S.C. 552 does not require the DOE to honor a request for a 
record not yet in existence, even where such a document may be expected 
to come into existence at a later time.
    (3) If a requested record is known to have been destroyed or 
otherwise disposed of, or if no such record is known to exist, the 
requester will be so notified.
    (e) Assurance of willingness to pay fees. A request shall include 
(1) an assurance to pay whatever fees will be assessed in accordance 
with Sec. 1004.9, (2) an assurance to pay those fees not exceeding some 
specified dollar amount, or (3) a request for a waiver or reduction of 
fees. No request will be deemed to have

[[Page 769]]

been received until the DOE has received some valid assurance of 
willingness to bear fees anticipated to be associated with the 
processing of the request or a specific request of a waiver or reduction 
of fees.
    (f) Requests for records or information of other agencies. Some of 
the records in the files of the DOE have been obtained from other 
Federal agencies or contain information obtained from other Federal 
agencies.
    (1) Where a document originated in another Federal agency, the 
Authorizing Official will refer the request to the originating agency 
and so inform the requester, unless the originator agrees to direct 
release by DOE.
    (2) Requests for DOE records containing information received from 
another agency, or records prepared jointly by DOE and other agencies, 
will be treated as requests for DOE records except that the Authorizing 
Official will coordinate with the appropriate official of the other 
agency. The notice of determination to the requester, in the event part 
or all of the record is recommended for denial by the other agency, will 
cite the other agency Denying Official as well as the appropriate DOE 
Denying Official if a denial by DOE is also involved.



Sec. 1004.5  Processing requests for records.

    (a) Freedom of Information Officers will be responsible for 
processing requests for records submitted pursuant to this part. Upon 
receiving such a request, the Freedom of Information Officer will, 
except as provided in paragraph (c) of this section, ascertain which 
Authorizing Official has responsibility for, custody of, or concern with 
the records requested. The Freedom of Information Officer will review 
the request, consulting with the Authorizing Official where appropriate, 
to determine its compliance with Sec. 1004.4. Where a request complies 
with Sec. 1004.4, the Freedom of Information Officer will acknowledge 
receipt of the request to the requester and forward the request to the 
Authorizing Official for action.
    (b) The Authorizing Official will promptly identify and review the 
records encompassed by the request. The Authorizing Official will 
prepare a written response (1) granting the request, (2) denying the 
request, (3) granting/denying it in part, (4) replying with a response 
stating that the request has been referred to another agency under Sec. 
1004.4(f) or Sec. 1004.6(e), (5) informing the requester that 
responsive records cannot be located or do not exist.
    (c) Where a request involves records which are in the custody of or 
are the concern of more than one Authorizing Official, the Freedom of 
Information Officer will identify all concerned Authorizing Officials, 
send copies of the request to them and forward the request for action to 
the Authorizing Official that can reasonably be expected to have custody 
of most of the requested records. This Authorizing Official will prepare 
a DOE response to the requester consistent with paragraph (b) of this 
section, which will identify any other Authorizing Official, having 
responsibility for the denial of records.
    (d) Time for processing requests. (1) Action pursuant to paragraph 
(b) of this section will be taken within 10 working days of receipt of a 
request for DOE records (``receipt'' is defined in Sec. 1004.4(a)), 
except that, if unusual circumstances require an extension of time 
before a decision on a request can be reached and the person requesting 
records is promptly informed in writing by the Authorizing Official of 
the reasons for such extension and the date on which a determination is 
expected to be dispatched, then the Authorizing Official may take an 
extension not to exceed 10 working days.
    (2) For purposes of this section and Sec. 1004.8(d), the term 
``unusual circumstances'' may include but is not limited to the 
following:
    (i) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
offices processing the request;
    (ii) The need to search for, collect and appropriately examine a 
voluminous amount of separate and distinct records which are responsive 
to a single request; or
    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a

[[Page 770]]

substantial interest in the determination of the request, or among two 
or more components of the Department having substantial subject matter 
interest therein.
    (3) The requester must be promptly notified in writing of the 
extension, the reasons for the extension, and the date on which a 
determination is expected to be made.
    (4) If no determination has been made at the end of the 10-day 
period, or the last extension thereof, the requester may deem his 
adminstrative remedies to have been exhausted, giving rise to a right of 
review in a district court of the United States as specified in 5 U.S.C. 
552(a)(4). When no determination can be made within the applicable time 
limit, the responsible Authorizing Official will nevertheless continue 
to process the request. If the DOE is unable to provide a response 
within the statutory period, the Authorizing Official will inform the 
requester of the reason for the delay; the date on which a determination 
may be expected to be made; that the requester can seek remedy through 
the courts, but ask the requester to forego such action until a 
determination is made.
    (5) Nothing in this part shall preclude the Authorizing Official and 
a requester from agreeing to an extension of time for the initial 
determination on a request. Any such agreement will be confirmed in 
writing and will clearly specify the total time agreed upon.



Sec. 1004.6  Requests for classified records.

    (a) All requests for classified records and Unclassified Controlled 
Nuclear Information will be subject to the provisions of this part with 
the special qualifications noted below.
    (b) All requests for records made in accordance with this part, 
except those requests for access to classified records which are made 
specifically pursuant to the mandatory review provisions of Executive 
Order 12356 or any successor thereto, may be automatically considered a 
Freedom of Information Act request.
    (c) Concurrence of the Director of Classification is required on all 
responses involving requests for classified records. The Director of 
Classification will be informed of the request by either the Freedom of 
Information Officer or the Authorizing Official to whom the action is 
assigned, and will advise the office originating the records, or having 
responsibility for the records, and consult with such office or offices 
prior to making a determination under this section.
    (d) The written notice of a determination to deny records, or 
portions of records, which contain both classified material and other 
exempt material, will be concurred in by the Director of Classification 
who will be the Denying Official for the classified portion of such 
records in accordance with Sec. Sec. 1004.5(c) and 1004.7(b)(2). If 
other DOE officials or appropriate officials of other agencies are 
responsible for denying any portion of the record, their names and 
titles or positions will be listed in the notice of denial in accordance 
with Sec. Sec. 1004.5(c) and 1004.7(b)(2) and it will be clearly 
indicated what portion or portions they were responsible for denying.
    (e) Requests for DOE records containing classified information 
received from another agency, and requests for classified documents 
originating in another agency, will be coordinated with or referred to 
the other agency consistent with the provisions of Sec. 1004.4(f). 
Coordination or referral of information or documents subject to this 
section will be effected by the Director of Classification (in 
consultation with the Authorizing Official) with the appropriate 
official of the other agency.



Sec. 1004.7  Responses by authorizing officials: Form and content.

    (a) Form of grant. Records requested pursuant to Sec. 1004.4 will 
be made available promptly, when they are identified and determined to 
be nonexempt under this Regulation, the Freedom of Information Act, and 
where the applicable fees are $15 or less or where it has been 
determined that the payment of applicable fees should be waived. Where 
the applicable fees exceed $15, the records may be made available before 
all charges are paid.
    (b) Form of denial. A reply denying a request for a record will be 
in writing.

[[Page 771]]

It will be signed by the Denying Official pursuant to Sec. 1004.5 (b) 
or (c) and will include:
    (1) Reason for denial. A statement of the reason for denial, 
containing a reference to the specific exemption under the Freedom of 
Information Act authorizing the withholding of the record and a brief 
explanation of how the exemption applies to the record withheld, and a 
statement of why a discretionary release is not appropriate.
    (2) Persons responsible for denial. A statement setting forth the 
name and the title or position of each Denying Official and identifying 
the portion of the denial for which each Denying Official is 
responsible.
    (3) Segregation of nonexempt material. A statement or notation 
addressing the issue of whether there is any segregable nonexempt 
material in the documents or portions thereof identified as being 
denied.
    (4) Adequacy of search. Although a determination that no such record 
is known to exist is not a denial, the requester will be informed that a 
challenge may be made to the adequacy of the search by appealing within 
30 calendar days to the Office of Hearings and Appeals.
    (5) Administrative appeal. A statement that the determination to 
deny documents made within the statutory time period, may be appealed 
within 30 calendar days to the Office of Hearings and Appeals.



Sec. 1004.8  Appeal of initial denials.

    (a) Appeal to Office of Hearings and Appeals. When the Authorizing 
Official has denied a request for records in whole or in part or has 
responded that there are no documents responsive to the request 
consistent with Sec. 1004.4(d), or when the Freedom of Information 
Officer has denied a request for waiver of fees consistent with Sec. 
1004.9, the requester may, within 30 calendar days of its receipt, 
appeal the determination to the Office of Hearings and Appeals.
    (b) Elements of appeal. The appeal must be in writing, addressed to 
the Director, Office of Hearings and Appeals, Department of Energy, 1000 
Independence Avenue SW., Washington, DC 20585 and both the envelope and 
letter must be clearly marked ``Freedom of Information Appeal.'' The 
appeal must contain a concise statement of grounds upon which it is 
brought and a description of the relief sought. It should also include a 
discussion of all relevant authorities, including, but not limited to, 
DOE (and predecessor agencies) rulings, regulations, interpretations and 
decisions on appeals and any judicial determinations being relied upon 
to support the appeal. A copy of the letter containing the determination 
which is being appealed, must be submitted with the appeal.
    (c) Receipt of appeal. An appeal will be considered to be received 
for purposes of 5 U.S.C. 552(a)(6) upon receipt by the appeal authority. 
Documents delivered after regular business hours of the Office of 
Hearings and Appeals are considerd received on the next regular business 
day.
    (d) Action within 20 working days. (1) The appeal authority will act 
upon the appeal within 20 working days of its receipt, except that if 
unusual circumstances (as defined in Sec. 1004.5(d)(2)) require an 
extension of time before a decision on a request can be reached, the 
appeal authority may extend the time for final action for an additional 
10 working days less the number of days of any statutory extension which 
may have been taken by the Authorizing Official during the period of 
initial determination.
    (2) The requester must be promptly notified in writing of the 
extension, setting forth the reasons for the extension, and the date on 
which a determination is expected to be issued.
    (3) If no determination on the appeal has been issued at the end of 
the 20-day period or the last extension thereof, the requester may 
consider his administrative remedies to be exhausted and seek a review 
in a district court of the United States as specified in 5 U.S.C. 
552(a)(4). When no determination can be issued within the applicable 
time limit, the appeal will nevertheless continue to be processed; on 
expiration of the time limit the requester will be informed of the 
reason for the delay, of the date on which a determination may be 
expected to be issued, and of his right to seek judicial review in the 
United States district court in the district in which he resides or has 
his

[[Page 772]]

principal place of business, the district in which the records are 
situated, or the District of Columbia. The requester may be asked to 
forego judicial review until determination of the appeal.
    (4) Nothing in this part will preclude the appeal authority and a 
requester from agreeing to an extension of time for the decision on an 
appeal. Any such agreement will be confirmed in writing by the appeal 
authority and will clearly specify the total time agreed upon for the 
appeal decision.
    (e) Form of action on appeal. The appeal authority's action on an 
appeal will be in writing and will set forth the reason for the 
decision. It will also contain a statement that it constitutes final 
agency action on the request and that judicial review will be available 
either in the district in which the requester resides or has a principal 
place of business, the district in which the records are situated, or in 
the District of Columbia. Documents determined by the appeal authority 
to be documents subject to release will be made promptly available to 
the requester upon payment of any applicable fees.
    (f) Classified records and records covered by section 148 of the 
Atomic Energy Act. The Secretary of Energy or his designee will make the 
final determination concerning appeals involving the denial of requests 
for classified information or the denial of requests for information 
falling within the scope of section 148 of the Atomic Energy Act of 
1954, as amended (42 U.S.C. 2168).



Sec. 1004.9  Fees for providing records.

    (a) Fees to be charged. The DOE will charge fees that recoup the 
full allowable direct costs incurred. The DOE will use the most 
efficient and least costly methods to comply with requests for documents 
made under the FOIA. The DOE may contract with private sector services 
to locate, reproduce and disseminate records in response to FOIA 
requests when that is the most efficient and least costly method. When 
doing so, however, the DOE will ensure that the ultimate cost to the 
requester is no greater than it would be if the DOE itself had performed 
these tasks. In no case will the DOE contract out responsibilities which 
the FOIA provides that only the agency may discharge, such as 
determining the applicability of an exemption, or determining whether to 
waive or reduce fees. Where the DOE can identify documents that are 
responsive to a request and are maintained for public distribution by 
other agencies such as the National Technical Information Service and 
the Government Printing Office, the Freedom of Information Officer will 
inform requesters of the procedures to obtain records from those 
sources.
    (1) Manual searches for records. Whenever feasible, the DOE will 
charge for manual searches for records at the salary rate(s) (i.e. basic 
pay plus 16 percent) of the employee(s) making the search.
    (2) Computer searches for records. The DOE will charge at the actual 
direct cost of providing the service. This will include the cost of 
operating the central processing unit (CPU) for that portion of 
operating time that is directly attributable to searching for records 
responsive to a FOIA request and operator/programmer salary.
    (3) Review of records. The DOE will charge requesters who are 
seeking documents for commercial use for time spent reviewing records to 
determine whether they are exempt from mandatory disclosure. Charges 
will be assessed only for the initial review (i.e., the review 
undertaken the first time the DOE analyzes the applicability of a 
specific exemption to a particular record or portion of a record. The 
DOE will not charge for review at the administrative appeal level of an 
exemption already applied. However, records or portions of records 
withheld in full under an exemption which is subsequently determined not 
to apply may be reviewed again to determine the applicability of other 
exemptions not previously considered. The costs for such a subsequent 
review would be properly assessable.
    (4) Duplication of records. The DOE will make a per-page charge for 
paper copy reproduction of documents. At present, the charge for paper 
to paper copies will be five cents per page and the charge for microform 
to paper copies will be ten cents per page. For computer generated 
copies, such as tapes or printouts, the DOE will charge the

[[Page 773]]

actual cost, including operator time, for production of the tape or 
printout. For other methods of reproduction or duplication, we will 
charge the actual direct costs of producing the document(s).
    (5) Other charges. It shall be noted that complying with requests 
for special services such as those listed below is entirely at the 
discretion of this agency. Neither the FOIA nor its fee structure cover 
these kinds of services. The DOE will recover the full direct costs of 
providing services such as those enumerated below to the extent that we 
elect to provide them:
    (i) Certifying that records are true copies;
    (ii) Sending records by special methods such as express mail, etc.
    (6) Restrictions on assessing fees. With the exception of requesters 
seeking documents for a commercial use, section (a)(4)(A)(iv) of the 
Freedom of Information Act, as amended, DOE will provide the first 100 
pages of duplication and the first two hours of search time without 
charge. Moreover, DOE will not charge fees to any requester, including 
commercial use requesters, if the cost of collecting the fee would be 
equal to or greater than the fee itself. These provisions work together, 
so that except for commercial use requesters, DOE will not begin to 
assess fees until after the Department has provided the free search and 
reproduction. For example, if a request involves two hours and ten 
minutes of search time and results in 105 pages of documents, DOE will 
charge for only 10 minutes of search time and only five pages of 
reproduction. If this cost is equal to or less than $15.00, the amount 
DOE incurs to process a fee collection, no charges would be assessed. 
For purposes of these restrictions on assessment of fees, the word 
``pages'' refers to paper copies of a standard agency size which will be 
normally be ``8\1/2\x11'' or ``11x14.'' Thus, requesters would not be 
entitled to 100 microfiche or 100 computer disks, for example. A 
microfiche containing the equivalent of 100 pages or 100 pages of 
computer printout, however, might meet the terms of the restriction. 
Similarly, the term ``search time'' is based on a manual search. To 
apply this term to searches made by computer, the DOE will determine the 
hourly cost of operating the central processing unit and the operator's 
hourly salary plus 16 percent. When the cost of the search (including 
the operator time and the cost of operating the computer to process a 
request) equals the equivalent dollar amount of two hours of the salary 
of the computer operator conducting the search, DOE will begin assessing 
charges for computer search.
    (7) Notification of charges. If the DOE determines or estimates that 
the fees to be assessed under this section may amount to more than 
$25.00, the requester will be informed of the estimated amount of fees, 
unless the requester has previously indicated a willingness to pay the 
amount estimated by the agency. In cases where a requester has been 
notified that actual or estimated fees may amount to more than $25.00, 
the request will be deemed not to have been received until the requester 
has agreed to pay the anticipated total fee. A notice to a requester 
pursuant to this paragraph will offer him the opportunity to confer with 
DOE personnel in order to reformulate his request to meet his needs at a 
lower cost.
    (8) Waiving or reducing fees. The DOE will furnish documents without 
charge or at reduced charges if disclosure of the information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government 
and disclosure is not primarily in the commercial interest of the 
requester. This fee waiver standard thus sets forth two basic 
requirements, both of which must be satisfied before fees will be waived 
or reduced. First it must be established that disclosure of the 
requested information is in the public interest because it is likely to 
contribute significantly to public understanding of the operations or 
activities of the government. Second, it must be established that 
disclosure of the information is not primarily in the commercial 
interest of the requester. When these requirements are satisfied, based 
upon information supplied by a requester or otherwise made known to the 
DOE, the waiver or reduction of a

[[Page 774]]

FOIA fee will be granted. In determining when fees should be waived or 
reduced the Freedom of Information Officer should address the following 
two criteria:
    (i) That disclosure of the Information ``is in the Public Interest 
Because it is Likely to Contribute Significantly to Public Understanding 
of the Operations or Activities of the Government.'' Factors to be 
considered in applying this criteria include but are not limited to:
    (A) The subject of the request: Whether the subject of the requested 
records concerns ``the operations or activities of the government'';
    (B) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities;
    (C) The contribution to an understanding by the general public of 
the subject likely to result from disclosure; and
    (D) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of government operations or activities.
    (ii) If Disclosure of the Information ``is Not Primarily in the 
Commercial Interest of the Requester.'' Factors to be considered in 
applying this criteria include but are not limited to:
    (A) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure; and, if so
    (B) The primary interest in disclosure: Whether the magnitude of the 
identified commercial interest of the requester is sufficiently large, 
in comparison with the public interest in disclosure, that disclosure is 
``primarily in the commercial interest of the requester.''
    (b) Fees to be charged--categories of requesters. There are four 
categories of FOIA requesters: Commercial use requesters; educational 
and non-commercial scientific institutions; representatives of the news 
media; and all other requesters. The Freedom of Information Officer will 
make determinations regarding categories of requesters as defined at 
Sec. 1004.2. The Headquarters Freedom of Information Officer will 
assist field Freedom of Information Officers in categorizing requesters, 
and will resolve conflicting categorizations. The FOIA prescribes 
specific levels of fees for each of these categories:
    (1) Commercial use requesters. When the DOE receives a request for 
documents which appears to be for commercial use, charges will be 
assessed to recover the full direct costs of searching for, reviewing 
for release, and duplicating the records sought. Commerical use 
requesters are not entitled to two hours of free search time nor 100 
free pages of reproduction of documents. The DOE will recover the cost 
of searching for and reviewing records even if there is ultimately no 
disclosure of records.
    (2) Educational and non-commercial scientific institution 
requesters. The DOE will provide documents to requesters in this 
category for the cost of reproduction only, excluding charges for the 
first 100 pages. To be eligible for inclusion in this category, 
requesters must show that the request is being made as authorized by and 
under the auspices of a qualifying institution and that the records are 
not sought for a commercial use, but are sought in furtherance of 
scholarly (if the request is from an educational institution) or 
scientific (if the request is from a non-commercial scientific 
institution) research.
    (3) Requesters who are representatives of the news media. The DOE 
will provide documents to requesters in this category for the cost of 
reproduction only, excluding charges for the first 100 pages. To be 
eligible for inclusion in this category, a requester must meet the 
criteria in Sec. 1004.2(m), and his or her request must not be made for 
a commercial use. With respect to this class of requesters, a request 
for records supporting the news dissemination function of the requester 
will not be considered to be a request for a commercial use.
    (4) All other requesters. The DOE will charge requesters who do not 
fall into any of the above categories fees which recover the full 
reasonable direct cost of searching for and reproducing records that are 
responsive to the request, except that the first 100 pages of 
reproduction and the first two hours of search time will be furnished 
without

[[Page 775]]

charge. Moreover, requests from individuals for records about themselves 
filed in DOE systems of records will continue to be processed under the 
fee provisions of the Privacy Act of 1974.
    (5) Charging interest--notice and rate. Interest will be charged 
those requesters who fail to pay fees. The DOE will begin to assess 
interest charges on the amount billed on the 31st day following the day 
on which the billing was sent to the requester. Interest will be at the 
rate prescribed in section 3717 of Title 31 U.S.C. and will accrue from 
the date of the billing.
    (6) Charges for unsuccessful search. The DOE will assess charges for 
time spent searching even if the search fails to identify responsive 
records or if records located are determined to be exempt from 
disclosure. If the DOE estimates that search charges are likely to 
exceed $25, it will notify the requester of the estimated amount of 
fees, unless the requester has indicated in advance his willingness to 
pay fees as high as those anticipated. Such a notice will offer the 
requester the opportunity to confer with agency personnel in order to 
reformulate the request to reduce the cost of the request.
    (7) Aggregating requests. A requester may not file multiple requests 
each seeking portions of a document or documents, solely to avoid 
payment of fees. When the DOE reasonably believes that a requester or, a 
group of requesters acting in concert, is attempting to break a request 
down into a series of requests for the purpose of evading the assessment 
of fees, the DOE will aggregate any such requests and charge the 
appropriate fees. The DOE may consider the time period in which the 
requests have been made in its determination to aggregate the related 
requests. In no case will DOE aggregate multiple requests on unrelated 
subjects from one requester.
    (8) Advance payments. Requesters are not required to make an advance 
payment (i.e., payment before action is commenced or continued on a 
request) unless:
    (i) The DOE estimates or determines that allowable charges that a 
requester may be required to pay are likely to exceed $250.00. In such 
cases, the DOE will notify the requester of the likely cost and obtain a 
satisfactory assurance of full payment where the requester has a history 
of prompt payment of FOIA fees, or require an advance payment of an 
amount up to the full estimated charges in the case of requesters with 
no history of payment.
    (ii) A requester has previously failed to pay a fee in a timely 
fashion (i.e., within 30 days of the date of the billing). The DOE will 
require the requester to pay the full amount delinquent plus any 
applicable interest as provided in paragraph (b)(5) of this section, or 
demonstrate that he has, in fact, paid the delinquent fee; and to make 
an advance payment of the full amount of the estimated current fee 
before we begin to process a new request or a pending request from that 
requester.
    When the DOE acts under paragraphs (b)(8) (i) or (ii) of this 
section, the administrative time limits prescribed in subsection (a)(6) 
of the FOIA (i.e., 10 working days from receipt of initial requests and 
20 working days from receipt of appeals from initial denials, plus 
permissible extensions of these time limits) will begin only after the 
DOE has received fee payments described above.
    (c) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365). The 
DOE will use the authorities of the Debt Collection Act, including 
disclosure to consumer reporting agencies and the use of collection 
agencies, where appropriate, to encourage payment of fees.



Sec. 1004.10  Exemptions.

    (a) 5 U.S.C. 552 exempts from all of its publication and disclosure 
requirements nine categories of records which are described in paragraph 
(b) of that section. These categories include such matters as national 
defense and foreign policy information; investigatory records; internal 
procedures and communications; materials exempted from disclosure by 
other statutes; confidential, commercial, and financial information; and 
matters involving personal privacy.
    (b) Specifically, the exemptions in 5 U.S.C. 552(b) will be applied 
consistent with Sec. 1004.1 of these regulations to matters that are:

[[Page 776]]

    (1) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of the national 
defense or foreign policy and are in fact properly classified pursuant 
to such Executive Order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from disclosure by statute (other than 5 
U.S.C. 552(b)), provided that such statute (i) requires that the matters 
be withheld from the public in such a manner as to leave no discretion 
on the issue, or (ii) establishes particular criteria for withholding or 
refers to particular types of matters to be withheld; for example 
Restricted Data and Formerly Restricted Data under the Atomic Energy Act 
of 1954, as amended (42 U.S.C. 2011 et seq.) are covered by this 
exemption;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Inter-agency or intra-agency memoranda or letters which would 
not be available by law to a party other than an agency in litigation 
with the agency;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information (i) could reasonably be expected to interfere 
with enforcement proceedings, (ii) would deprive a person of a right to 
a fair trial or an impartial adjudication, (iii) could reasonably be 
expected to constitute an unwarranted invasion of personal privacy, (iv) 
could reasonably be expected to disclose the identity of a confidential 
source, including a State, local, or foreign agency or authority or any 
private institution which furnished information on a confidential basis, 
and, in the case of a record or information compiled by a criminal law 
enforcement authority in the course of a criminal investigation or by an 
agency conducting a lawful national security intelligence investigation, 
information furnished by a confidential source, (v) would disclose 
techniques and procedures for law enforcement investigations or 
prosecutions, or would disclose guidelines for law enforcement 
investigations or prosecutions if such disclosure could reasonably be 
expected to risk circumvention of the law, or (vi) could reasonably be 
expected to endanger the life or physical safety of any individual;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (c) Any reasonably segregated non-exempt portion of a record will be 
provided to a requester. The DOE will delete portions which are 
withholdable under the exemptions listed above.



Sec. 1004.11  Handling information of a private business, foreign government, or an international organization.

    (a) Whenever a document submitted to the DOE contains information 
which may be exempt from public disclosure, it will be handled in 
accordance with the procedures in this section. While the DOE is 
responsible for making the final determination with regard to the 
disclosure or nondisclosure of information contained in requested 
documents, the DOE will consider the submitter's views (as that term is 
defined in this section) in making its determination. Nothing in this 
section will preclude the submission of a submitter's views at the time 
of the submission of the document to which the views relate, or at any 
other time.
    (b) When the DOE may determine, in the course of responding to a 
Freedom of Information request, not to release information submitted to 
the DOE (as described in paragraph (a) of this section, and contained in 
a requested document) without seeking any or further submitter's views, 
no notice will be given the submitter.
    (c) When the DOE, in the course of responding to a Freedom of 
Information request, cannot make the determination described in 
paragraph (b) of

[[Page 777]]

this section without having for consideration the submitter's views, the 
submitter shall be promptly notified and provided an opportunity to 
submit his views on whether information contained in the requested 
document (1) is exempt from the mandatory public disclosure requirements 
of the Freedom of Information Act, (2) contains information referred to 
in 18 U.S.C. 1905, or (3) is otherwise exempt by law from public 
disclosure. The DOE will make its own determinations as to whether any 
information is exempt from disclosure. Notice of a determination by the 
DOE that a claim of exemption made pursuant to this paragraph is being 
denied will be given to a person making such a claim no less than seven 
(7) calendar days prior to intended public disclosure of the information 
in question. For purposes of this section, notice is deemed to be given 
when mailed to the submitter at the submitter's last known address.
    (d) When the DOE, in the course of responding to a Freedom of 
Information request, cannot make the determination described in 
paragraph (b) of this section and, without recourse to paragraph (c) of 
this section, previously has received the submitter's views, the DOE 
will consider such submitter's views and will not be required to obtain 
additional submitter's views under the procedure described in paragraph 
(c) of this section. The DOE will make its own determination with regard 
to any claim that information be exempted from disclosure. Notice of the 
DOE's determination to deny a claim of exemption made pursuant to this 
paragraph will be given to a person making such a claim no less than 
seven (7) calendar days prior to its intended public disclosure.
    (e) Notwithstanding any other provision of this section, DOE offices 
may require a person submitting documents containing information that 
may be exempt by law from mandatory disclosure to (1) submit copies of 
each document from which information claimed to be confidential has been 
deleted or (2) require that the submitter's views be otherwise made 
known at the time of the submission. Notice of a determination by the 
DOE that a claim of exemption is being denied will be given to a person 
making such a claim no less than seven (7) calendar days prior to 
intended public disclosure of the information in question. For purposes 
of this section, notice is deemed to be given when mailed to the 
submitter at the submitter's last known address.
    (f) Criteria for determining the applicability of 5 U.S.C. 
552(b)(4). Subject to subsequent decisions of the Appeal Authority, 
criteria to be applied in determining whether information is exempt from 
mandatory disclosure pursuant to Exemption 4 of the Freedom of 
Information Act include:
    (1) Whether the information has been held in confidence by the 
person to whom it pertains;
    (2) Whether the information is of a type customarily held in 
confidence by the person to whom it pertains and whether there is a 
reasonable basis therefore;
    (3) Whether the information was transmitted to and received by the 
Department in confidence;
    (4) Whether the information is available in public sources;
    (5) Whether disclosure of the information is likely to impair the 
Government's ability to obtain similar information in the future; and
    (6) Whether disclosure of the information is likely to cause 
substantial harm to the competitive position of the person from whom the 
information was obtained.
    (g) When the DOE, in the course of responding to a Freedom of 
Information request, determines that information exempt from the 
mandatory public disclosure requirements of the Freedom of Information 
Act is to be released in accordance with Sec. 1004.1, the DOE will 
notify the submitter of the intended discretionary release no less than 
seven (7) days prior to intended public disclosure of the information in 
question.
    (h) As used in this section, the term submitter's views means, with 
regard to a document submitted to the DOE, an item-by-item indication, 
with accompanying explanation, addressing whether the submitter 
considers the information contained in the document

[[Page 778]]

to be exempt from the mandatory public disclosure requirements of the 
Freedom of Information Act, to be information referred to in 18 U.S.C. 
1905, or to be otherwise exempt by law from mandatory public disclosure. 
The accompanying explanation shall specify the justification for 
nondisclosure of any information under consideration. If the submitter 
states that the information comes within the exemption in 5 U.S.C. 
552(b)(4) for trade secrets and commercial or financial information, the 
submitter shall include a statement specifying why such information is 
privileged or confidential and, where appropriate, shall address the 
criteria in paragraph (f) of this section. In all cases, the submitter 
shall address the question of whether or not discretionary disclosure 
would be in the public interest.



Sec. 1004.12  Computation of time.

    Except as otherwise noted, in computing any period of time 
prescribed or allowed by this part, the day of the event from which the 
designated period of time begins to run is not to be included; the last 
day of the period so computed is to be included; and Saturdays, Sundays, 
and legal holidays are excepted.



PART 1005_INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF ENERGY PROGRAMS AND ACTIVITIES--Table of Contents



Sec.
1005.1 What is the purpose of these regulations?
1005.2 What definitions apply to these regulations?
1005.3 What programs and activities of the Department are subject to 
          these regulations?
1005.4 What are the Secretary's general responsibilities under the 
          Order?
1005.5 What is the Secretary's obligation with respect to Federal 
          interagency coordination?
1005.6 What procedures apply to the selection of programs and activities 
          under these regulations?
1005.7 How does the Secretary communicate with state and local officials 
          concerning the Department's programs and activities?
1005.8 How does the Secretary provide states an opportunity to comment 
          on proposed Federal financial assistance and direct Federal 
          development?
1005.9 How does the Secretary receive and respond to comments?
1005.10 How does the Secretary make efforts to accommodate 
          intergovernmental concerns?
1005.11 What are the Secretary's obligations in interstate situations?
1005.12 How may a state simplify, consolidate, or substitute federally 
          required state plans?
1005.13 May the Secretary waive any provision of these regulations?

    Authority: E. O. 12372, July 14, 1982, 47 FR 30959, as amended April 
8, 1983, 48 FR 15887; sec. 401 of the Intergovernmental Cooperation Act 
of 1968, as amended (31 U.S.C. 6506).

    Source: 48 FR 29182, June 24, 1983, unless otherwise noted.



Sec. 1005.1  What is the purpose of these regulations?

    (a) The regulations in this part implement Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982 
and amended on April 8, 1983. These regulations also implement 
applicable provisions of section 401 of the Intergovernmental 
Cooperation Act of 1968.
    (b) These regulations are intended to foster an intergovernmental 
partership and a strengthened Federalism by relying on state processes 
and on state, areawide, regional and local coordination for review of 
proposed federal financial assistance and direct federal development.
    (c) These regulations are intended to aid the internal management of 
the Department, and are not intended to create any right or benefit 
enforceable at law by a party against the Department or its officers.



Sec. 1005.2  What definitions apply to these regulations?

    Department means the U.S. Department of Energy.
    Order means Executive Order 12372, issued July 14, 1982, and amended 
April 8, 1983 and titled ``Intergovernmental Review of Federal 
Programs.''
    Secretary means the Secretary of the U.S. Department of Energy or an 
official or employee of the Department acting for the Secretary under a 
delegation of authority.

[[Page 779]]

    State means any of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust 
Territory of the Pacific Islands.



Sec. 1005.3  What programs and activities of the Department are subject to these regulations?

    (a) The Secretary publishes in the Federal Register a list of the 
Department's program and activities that are subject to the order and 
these regulations.
    (b) Unless otherwise stated in the Federal Register listing 
identified in paragraph (a) of this section, these regulations do not 
apply to the Department's financial assistance transactions with other 
than governmental entities.
    (c) The Bonneville Power Administration shall satisfy the 
requirements of these regulations by compliance with the consultation 
requirements of the Pacific Northwest Electric Power Planning and 
Conservation Act, Public Law 96-501.



Sec. 1005.4  What are the Secretary's general responsibilities under the Order?

    (a) The Secretary provides opportunities for consultation by elected 
officials of those state and local governments that would provide the 
nonfederal funds, for, or that would be directly affected by, proposed 
federal financial assistance from, or direct federal development by, the 
Department.
    (b) If a state adopts a process under the Order to review and 
coordinate proposed federal financial assistance and direct federal 
development, the Secretary, to the extent permitted by law:
    (1) Uses the state process to determine official views of state and 
local elected officials;
    (2) Communicates with state and local elected officials as early in 
a program planning cycle as is reasonably feasible to explain specific 
plans and actions;
    (3) Make efforts to accommodate state and local elected official's 
concerns with proposed federal financial assistance and direct federal 
development that are communicated through the state process;
    (4) Allows the states to simplify and consolidate existing federally 
required state plan submissions;
    (5) Where state planning and budgeting systems are sufficient and 
where permitted by law, encourages the substitution of State plans for 
federally required state plans;
    (6) Seeks the coordination of views of affected state and local 
elected officials in one state with those of another state when proposed 
federal financial assistance or direct federal development has an impact 
on interstate metropolitan urban centers or other interstate areas; and
    (7) Supports state and local governments by discouraging the 
reauthorization or creation of any planning organization which is 
federally-funded, which has a limited purpose, and which is not 
adequately representative of, or accountable to, state or local elected 
officials.



Sec. 1005.5  What is the Secretary's obligation with respect to Federal interagency coordination?

    The Secretary, to the extent practicable, consults with and seeks 
advice from all other substantially affected federal departments and 
agencies in an effort to assure full coordination between such agencies 
and the Department regarding programs and activities covered under these 
regulations.



Sec. 1005.6  What procedures apply to the selection of programs and activities under these regulations?

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec. 1005.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities, shall consult with local elected 
officials.
    (b) Each state that adopts a process shall notify the Secretary of 
the Department's programs and activities selected for that process.
    (c) A state may notify the Administrator of changes in its 
selections at any time. For each change, the state shall submit to the 
Secretary an assurance that the state has consulted with

[[Page 780]]

local elected officials regarding the change. The Department may 
establish deadlines by which states are required to inform the Secretary 
of changes in their program selections.
    (d) The Secretary uses a state's process as soon as feasible, 
depending on individual programs and activities, after the Secretary is 
notified of its selections.



Sec. 1005.7  How does the Secretary communicate with state and local officials concerning the Department's programs and activities?

    (a) [Reserved]
    (b) The Secretary provides notice to directly affected state, 
areawide, regional, and local entities in a state of proposed Federal 
financial assistance or direct Federal development if:
    (1) The state has not adopted a process under the Order; or
    (2) The assistance or development involves a program or activity not 
selected for the state process. This notice may be made by publication 
in the Federal Register or other appropriate means, which the Department 
in its discretion deems appropriate.



Sec. 1005.8  How does the Secretary provide states an opportunity to comment on proposed Federal financial assistance and direct Federal development?

    (a) Except in unusual circumstances, the Secretary gives state 
processes or directly affected State, areawide, regional and local 
officials and entities--
    (1) At least 30 days from the date established by the Secretary to 
comment on proposed Federal financial assistance in the form of 
noncompeting continuation awards; and
    (2) At least 60 days from the date established by the Secretary to 
comment on proposed direct Federal development or Federal financial 
assistance other than noncompeting continuation awards.
    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with the Department have been 
delegated.



Sec. 1005.9  How does the Secretary receive and respond to comments?

    (a) The Secretary follows the procedures in Sec. 1005.10 if:
    (1) A state office or official is designated to act as a single 
point of contact between a state process and all federal agencies, and
    (2) That office or official transmits a state process recommendation 
for a program selected under Sec. 1005.6.
    (b)(1) The single point of contact is not obligated to transmit 
comments from state, areawide, regional or local officials and entities 
where there is no state process recommendation.
    (2) If a state process recommendation is transmitted by a single 
point of contact, all comments from, state, areawide, regional, and 
local officials and entities that differ from it must also be 
transmitted.
    (c) If a state has not established a process, or is unable to submit 
a state process recommendation, state, areawide, regional and local 
officials and entities may submit comments either to the applicant or to 
the Department.
    (d) If a program or activity is not selected for a state process, 
state, areawide, regional and local officials and entities may submit 
comments either to the applicant or to the Department. In addition, if a 
state process recommendation for a nonselected program or activity is 
transmitted to the Department by the single point of contact, the 
Secretary follows the procedures of Sec. 1005.10 of this part.
    (e) The Secretary considers comments which do not constitute a state 
process recommendation submitted under these regulations and for which 
the Secretary is not required to apply the procedures of Sec. 1005.10 
of this part, when such comments are provided by a single point of 
contact, by the applicant, or directly to the Department by a commenting 
party.



Sec. 1005.10  How does the Secretary make efforts to accommodate intergovernmental concerns?

    (a) If a state process provides a state process recommendation to 
the Department through its single point of contact, the Secretary 
either:
    (1) Accepts the recommendation;
    (2) Reaches a mutually agreeable solution with the state process; or
    (3) Provides the single point of contact with such written 
explanation of

[[Page 781]]

the decision, as the Secretary in his or her discretion deems 
appropriate. The Secretary may also supplement the written explanation 
by providing the explanation to the single point of contact by 
telephone, other telecommunication, or other means.
    (b) In any explanation under paragraph (a)(3) of this section, the 
Secretary informs the single point of contact that:
    (1) The Department will not implement its decision for at least ten 
days after the single point of contact receives the explanation; or
    (2) The Secretary has reviewed the decision and determined that, 
because of unusual circumstances, the waiting period of at least ten 
days is not feasible.
    (c) For purposes of computing the waiting period under paragraph 
(b)(1) of this section, a single point of contact is presumed to have 
received written notification 5 days after the date of mailing of such 
notification.



Sec. 1005.11  What are the Secretary's obligations in interstate situations?

    (a) The Secretary is responsible for:
    (1) Identifying proposed federal financial assistance and direct 
federal development that have an impact on interstate areas;
    (2) Notifying appropriate officials and entities in states which 
have adopted a process and which select the Department's program or 
activity;
    (3) Making efforts to identify and notify the affected state, 
areawide, regional, and local officials and entities in those states 
that have not adopted a process under the Order or do not select the 
Department's program or activity;
    (4) Responding pursuant to Sec. 1005.10 of this part if the 
Secretary receives a recommendation from a designated areawide agency 
transmitted by a single point of contact, in cases in which the review, 
coordination, and communication with the Department have been delegated.
    (b) The Secretary uses the procedures in Sec. 1005.10 if a state 
process provides a state process recommendation to the Department 
through a single point of contact.



Sec. 1005.12  How may a state simplify, consolidate, or substitute federally required state plans?

    (a) As used in this section:
    (1) Simplify means that a state may develop its own format, choose 
its own submission date, and select the planning period for a state 
plan.
    (2) Consolidate means that a state may meet statutory and regulatory 
requirements by combining two or more plans into one document and that 
the state can select the format, submission date, and planning period 
for the consolidated plan.
    (3) Substitute means that a state may use a plan or other document 
that it has developed for its own purposes to meet Federal requirements.
    (b) If not inconsistent with law, a state may decide to try to 
simplify consolidate, or substitute federally required state plans 
without prior approval by the Secretary.
    (c) The Secretary reviews each state plan that a state has 
simplified, consolidated, or substituted and accepts the plan only if 
its contents meet federal requirements.



Sec. 1005.13  May the Secretary waive any provision of these regulations?

    In an emergency, the Secretary may waive any provision of these 
regulations.



PART 1008_RECORDS MAINTAINED ON INDIVIDUALS (PRIVACY ACT)--Table of Contents



                      Subpart A_General Provisions

Sec.
1008.1 Purpose and scope.
1008.2 Definitions.
1008.3 Employee standards of conduct with regard to privacy.
1008.4 Procedures for identifying the individual making a request for 
          access to or amendment of records.
1008.5 Effect of the Freedom of Information Act (FOIA).

               Subpart B_Requests for Access or Amendment

1008.6 Procedures for Privacy Act requests.
1008.7 Processing of requests.
1008.8 Action in response to a request for access: disclosure of 
          requested information to subject individuals.
1008.9 Action in response to a request for access: initial denial of 
          access.

[[Page 782]]

1008.10 Action in response to a request for correction or amendment of 
          records.
1008.11 Appeals of denials of requests pursuant to Sec. 1008.6.
1008.12 Exemptions.
1008.13 Fees.
1008.14 Requests under false pretenses.
1008.15 Civil remedies.

                  Subpart C_Disclosure to Third Parties

1008.16 Prohibition against disclosure.
1008.17 Conditions of disclosure.
1008.18 Accounting for disclosures.
1008.19 Criminal penalties--improper disclosure.

      Subpart D_Maintenance and Establishment of Systems of Records

1008.20 Content of systems of records.
1008.21 Collection of information by DOE about an individual for a 
          system of records.
1008.22 Use and collection of social security numbers.
1008.23 Public notice of systems of records.
1008.24 Criminal penalties--failure to publish a system notice.

    Authority: 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.; 5 U.S.C. 
552a.

    Source: 45 FR 61577, Sept. 16, 1980, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 1008.1  Purpose and scope.

    (a) This part establishes the procedures to implement the Privacy 
Act of 1974 (Pub. L. 93-579, 5 U.S.C. 552a) within the Department of 
Energy.
    (b) This part applies to all systems of records, as defined in Sec. 
1008.2(m), maintained by DOE.
    (c) This part applies to all divisions within the DOE, and to the 
personnel records of the Federal Energy Regulatory Commission (FERC), 
which are maintained by DOE on behalf of FERC. These regulations do not 
apply to other systems of records maintained by FERC. These regulations 
also apply to DOE contractors and their employees to the extent required 
by 5 U.S.C. 552a(m).



Sec. 1008.2  Definitions.

    (a) Department or Department of Energy (DOE) means all 
organizational entities which are a part of the executive department 
created by title II of the Department of Energy Organization Act, Public 
Law 95-91, except the Federal Energy Regulatory Commission (FERC).
    (b) Director, Office of Hearings and Appeals means the Director or 
his delegate.
    (c) DOE locations means each of the following DOE components:
    (1) Bonneville Power Administration, P.O. Box 3621-KDP-7, Portland, 
OR 97232.
    (2) Carlsbad Field Office, P.O. Box 3090, Carlsbad, NM 88221.
    (3) Chicago Office, 9800 S. Cass Avenue, Argonne, IL 60439.
    (4) Environmental Management Consolidated Business Center, 250 East 
5th Street, Suite 500, Cincinnati, OH 45202.
    (5) Golden Field Office, 1617 Cole Boulevard, Golden, CO 80401.
    (6) Headquarters, Department of Energy, Washington, DC 20585.
    (7) Idaho Operations Office, 1955 Fremont Avenue, MS 1203, Idaho 
Falls, ID 83401.
    (8) National Nuclear Security Administration Service Center, P.O. 
Box 5400, Albuquerque, NM 87185-5400.
    (9) National Nuclear Security Administration Nevada Site Office, 
P.O. Box 98518, Las Vegas, NV 89193-3521.
    (10) National Energy Technology Laboratory, 3610 Collins Ferry Road, 
Morgantown, WV 26507-0800.
    (11) Oak Ridge Office, P.O. Box 2001, Oak Ridge, TN 37831.
    (12) Office of Scientific and Technical Information, 175 S. Oak 
Ridge Turnpike, P.O. Box 62, Oak Ridge, TN 37830.
    (13) Pacific Northwest Site Office, P.O. Box 350, Mail Stop K8-50, 
Richland, WA 99352.
    (14) Pittsburgh Naval Reactors, P.O. Box 109, West Mifflin, PA 
15122-0109.
    (15) Richland Operations Office, P.O. Box 550, Mail Stop A7-75, 
Richland, WA 99352.
    (16) Savannah River Operations Office, P.O. Box A, Aiken, SC 29801.
    (17) Schenectady Naval Reactors, P.O. Box 1069, Schenectady, NY 
12301.
    (18) Southeastern Power Administration, 1166 Athens Tech Road, 
Elberton, GA 30635-6711.
    (19) Southwestern Power Administration, One West Third, S1200, 
Tulsa, OK 74103.

[[Page 783]]

    (20) Strategic Petroleum Reserve Project Management Office, 900 
Commerce Road East-MS FE-455, New Orleans, LA 70123.
    (21) Western Area Power Administration, 12155 W. Alameda Parkway, 
P.O. Box 281213, Lakewood, CO 80228-8213.
    (d) General Counsel means the General Counsel provided for in 
section 202(b) of the Department of Energy Organization Act, or any DOE 
attorney designated by the General Counsel.
    (e) Headquarters means all DOE facilities functioning within the 
Washington, DC metropolitan area.
    (f) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence, but does not include 
proprietorships, businesses, or corporations. Where appropriate, the 
term individual also includes a duly authorized representative of an 
individual.
    (g) Maintain means maintain, collect, use, or disseminate.
    (h) Privacy Act Officer means the person designated by the Director, 
Office of Administration, as responsible for administering the DOE's 
program for implementing the requirements of the Privacy Act of 1974 at 
the DOE locations listed at Sec. 1008.2(c).
    (i) Record means any item, collection, or grouping of information 
about an individual that is maintained by or for the DOE including, but 
not limited, to education, financial transactions, medical history, and 
criminal or employment history, and that contains that individual's 
name, or other identifying number, symbol, or other identifying 
particulars assigned to the individual, such as a finger or voice print 
or photograph. See subsection (a)(4) of the Act.
    (j) Routine use means, with respect to the disclosure of a record, 
the use of such record for a purpose which is compatible with the 
purpose for which it was collected. See subsection (a)(7) of the Act.
    (k) Statistical record means a record in a system of records 
maintained for statistical research or reporting purposes only and not 
used in whole or in part in making any determination about an 
identifiable individual, except as provided by 13 U.S.C. 8. See 
subsection (a)(6) of the Act.
    (l) System Manager means the DOE official who is responsible for a 
system of records as designated in the system notice of that system of 
records published by DOE.
    (m) System of records means a group of any records under DOE control 
from which information is retrieved by the name of the individual or by 
some identifying number, symbol, or other identifying particulars 
assigned to the individual. See subsection (a)(5) of the Act.
    (n) Act means the Privacy Act of 1974, Public Law 93-579; references 
to subsections of the Act mean subsections of section 3 of the Act.

[45 FR 61577, Sept. 16, 1980, as amended at 71 FR 68735, Nov. 28, 2006]



Sec. 1008.3  Employee standards of conduct with regard to privacy.

    (a) The Headquarters DOE Privacy Act Officer shall assure that DOE 
personnel are advised of the provisions of the Privacy Act, including 
the criminal penalties and civil liabilities provided therein, 
(subsections (g) and (i) of the Act), and that DOE personnel are made 
aware of their responsibilities: to protect the security of personal 
information to assure its accuracy, relevance, timeliness and 
completeness; to avoid unauthorized disclosure; and to insure that no 
system of records concerning individuals, no matter how insignificant or 
specialized, is maintained without public notice.
    (b) DOE personnel shall:
    (1) Collect or maintain no information of a personal nature about 
individuals unless relevant and necessary to achieve a purpose or carry 
out a responsibility of the DOE as required by statute or by Executive 
Order. See subsection (e)(1) of the Act and Sec. 1008.18(a).
    (2) Collect information, wherever possible, directly from the 
individual to whom it pertains. See subsection (e)(2) of the Act and 
Sec. 1009.19(a).
    (3) Inform individuals from whom information is collected of the 
authority for collection, the principal purposes for which the 
information will be used, the routine uses that will be made of the 
information, and the effects of not furnishing the information. See 
subsection (e)(3) of the Act and Sec. 1008.19(b).

[[Page 784]]

    (4) Collect, maintain, use or disseminate no information concerning 
an individual's rights guaranteed by the First Amendment, unless:
    (i) The individual has volunteered such; or
    (ii) The information is expressly authorized by statute to be 
collected, maintained, used or disseminated; or
    (iii) The activities involved are pertinent to and within the scope 
of an authorized law enforcement activity. See subsection (e)(7) of the 
Act and Sec. 1008.18(b).
    (5) Advise their supervisors of the existence or proposal of any 
system of records which retrieves information about individuals by the 
individual's name or other identifying number, symbol, or identifying 
particulars assigned to the individual.
    (6) Maintain an accounting, in the prescribed form, of all 
disclosures of information other than those to officers or employees who 
have a need for the record in the performance of their duties and those 
required under the Freedom of Information Act. See subsection (c) of the 
Act.
    (7) Disclose no records other than to DOE personnel without the 
advance written consent of the individual, except as authorized by 5 
U.S.C. 552a(b) including routine uses published in the Federal Register.
    (8) Maintain and process information concerning individuals with 
care to insure that no inadvertent disclosure of the information is 
made. See subsection (e)(10) of the Act.
    (9) Inform the proper DOE authorities of any information maintained 
in a DOE system of records which is not authorized by the Privacy Act of 
1974.
    (c) Heads of Headquarters Divisions and Offices and heads of the 
other DOE locations shall review annually the systems of records subject 
to their responsibility to insure compliance with the requirements of 
the Privacy Act of 1974.



Sec. 1008.4  Procedures for identifying the individual making a request for access to or amendment of records.

    (a) When a request for information about or for access to or 
correction of a record pertaining to an individual and contained in a 
system of records has been made pursuant to Sec. 1008.6, valid 
identification of the individual making the request shall be required 
before information will be given, access granted or a correction 
considered, to insure that information is given, corrected, or records 
disclosed or corrected only at the request of the proper person.
    (b) Subject to paragraphs (c) and (d) of this section, an individual 
making a request may establish his identity by:
    (1) Including with his request, if submitted by mail, a photocopy of 
two identifying documents bearing his name and signature, one of which 
shall bear his current home or business address and date of birth; or
    (2) Appearing at the appropriate DOE location during the regular 
business hours and presenting either of the following:
    (i) One identifying document bearing the individual's photograph and 
signature, such as a driver's license or passport; or
    (ii) Two identifying documents bearing the individual's name and 
signature, one of which shall bear the individual's current home or 
business address and date of birth; or
    (3) Providing such other proof of identity as the Privacy Act 
Officer deems satisfactory in the circumstances of a particular request.
    (c) If the Privacy Act Officer or the appropriate System Manager 
determines that the information in a record is so sensitive that 
unauthorized access could cause harm or embarrassment to the individual 
whose record in involved, or if the individual making the request is 
unable to produce satisfactory evidence of identity under paragraph (b) 
or (d) of this section, the individual making the request may be 
required to submit a notarized statement attesting to his identity and 
his understanding of the criminal penalties provided under section 1001 
of title 18 of the United States Code for making false statements to a 
Government agency and under subsection (i)(3) of the Act for obtaining 
records under false pretenses. Copies of these statutory provisions and 
forms of such notarized statements may be obtained upon request from the 
Privacy Act Officer,

[[Page 785]]

Headquarters, Department of Energy, Washington, DC.
    (d) When an individual acting as the parent of a minor or the legal 
guardian of the person to whom a record pertains makes a request 
pursuant to Sec. 1008.6 of this part:
    (1) Such an individual shall establish his personal identity in the 
same manner required in either paragraph (b) or (c) of this section.
    (2) In addition, such an individual shall establish his identity in 
the representative capacity of parent or legal guardian. In the case of 
the parent of a minor, the proof of identity shall be a certified or 
authenticated copy of the minor's birth certificate. In the case of the 
legal guardian of a person who has been declared incompetent due to 
physical or mental incapacity or age by a court of competent 
jurisdiction, the proof of identity shall be a certified or 
authenticated copy of the order from a court of competent jurisdiction.
    (3) A parent or legal guardian may act only for a living individual, 
not for a decedent. Requests for the records of decedents will be 
handled under the Freedom of Information Act (5 U.S.C. 552).



Sec. 1008.5  Effect of the Freedom of Information Act (FOIA).

    (a) DOE shall not rely on any exemption contained in the Freedom of 
Information Act (5 U.S.C. 552) to withhold from the individual to whom 
it pertains, any record which is otherwise accessible to such individual 
under this part.
    (b) DOE shall rely on subsection (b) of the Privacy Act to withhold 
information from a person other than the person to whom the record 
pertains only when the information is also exempt from disclosure under 
the FOIA.
    (c) Where a request for access to records is submitted pursuant to 
both the FOIA and the Privacy Act, the DOE shall, to the maximum extent 
possible, process the request under the provisions of this part, 
including the time limits of this part.



               Subpart B_Requests for Access or Amendment



Sec. 1008.6  Procedures for Privacy Act requests.

    (a) Any individual may--
    (1) Ask the DOE whether a system of records maintained by the DOE 
contains records about him or her;
    (2) Request access to information pertaining to him or her that is 
maintained in a DOE system of records;
    (3) Request that information about him or her in a DOE system of 
records be amended or corrected. Requests for correction or amendment 
may include inquiries concerning:
    (i) Whether such information is relevant or necessary to accomplish 
a purpose that DOE is required to accomplish by statute or Executive 
Order; or
    (ii) If the information is to be used by the DOE in making a 
determination about the individual, whether the information is as 
accurate, relevant, timely, or complete as is reasonably necessary to 
assure fairness in the determination.
    (b) Requests submitted pursuant to this section shall:
    (1) Be in writing and signed by the individual making the request;
    (2) State that the request is a ``Privacy Act Access'' or ``Privacy 
Act Amendment'' request;
    (3) Include the identification information required by Sec. 1008.4;
    (4) Specify, if possible, the title and identifying number of the 
system of records as listed in DOE's published notices of system of 
records;
    (5) Provide if possible any additional information to aid DOE in 
responding to the request, for example, a description of the records 
sought;
    (6) Indicate, as appropriate, the time, place, and form of access 
sought.
    (c) Any request not addressed and marked as specified in paragraph 
(a) of this section shall be forwarded immediately to the appropriate 
Privacy Act Officer. An improperly addressed request will not be deemed 
to have been received for purposes of measuring time periods pursuant to 
Sec. Sec. 1008.7 and 1008.10 until actual receipt by the appropriate 
Privacy Act Officer. The individual making the request shall be

[[Page 786]]

notified that the request was improperly addressed and the date when the 
request was received by the Privacy Act Officer.
    (d) Assistance in preparing an access request pursuant to this 
section may be obtained from any DOE Privacy Act Officer at the 
locations listed at Sec. 1008.2(e).
    (e) An individual shall not be required to state a reason or 
otherwise justify his request for information or access to a record 
pertaining to him/her that is contained in a system of records.



Sec. 1008.7  Processing of requests.

    (a) Receipt of a request made in accordance with Sec. 1008.6 shall 
be promptly acknowledged by the Privacy Act Officer.
    (b) Each request shall be acted upon promptly. Every effort will be 
made to respond within ten working days of the date of receipt by the 
System Manager or designee. If a response cannot be made within ten 
working days, the appropriate Privacy Act Officer shall send an interim 
response providing information on the status of the request, including 
an estimate of the time within which action is expected to be taken on 
the request and asking for any further information as may be necessary 
to respond to the request. Action will be completed as soon as possible, 
but not later than 20 working days after receipt of the original 
specific inquiry. In unusual circumstances and for good cause, the 
appropriate Privacy Act Officer may decide that action cannot be 
completed within the initial 20 working days. In such case, the 
appropriate Privacy Act Officer will advise the individual of the reason 
for the delay and the date (not to exceed an additional 20 working days) 
by which action can be expected to be completed.
    (c) The term unusual circumstances as used in this section includes 
situations where a search for requested records from inactive storage is 
necessary; cases where a voluminous amount of data is involved; 
instances where information on other individuals must be separated or 
expunged from the particular record; and cases where consultation with 
other agencies which have substantial interest in the response to the 
request is necessary.
    (d) Upon receiving a request, the Privacy Act Officer shall 
ascertain which System Manager or Managers of the DOE have primary 
responsibility for, custody of, or concern with the system or systems of 
records subject to the request and shall forward the request to such 
System Manager or Managers. The System Manager or Managers shall 
promptly identify and, in consultation with the General Counsel, review 
the records encompassed by the request.
    (e) Where the request is for access to or information about records, 
after reviewing the material the System Manager or Managers concerned 
shall transmit to the Privacy Act Officer the requested material. The 
transmission to the Privacy Act Officer shall include any recommendation 
that the request be granted or wholly or partially denied and shall set 
forth any exemption categories supporting denials. Any denial 
recommendation must be concurred in by the appropriate General Counsel.
    (f) Where the request is for correction or amendment of records, 
after reviewing the material the System Manager or Managers shall 
transmit a recommended decision to the Privacy Act Officer. Any 
recommendation that the request be granted or wholly or partially denied 
shall cite the exemption relied on and set forth the policy 
considerations supporting a denial. Any recommendation of denial must be 
concurred in by General Counsel.



Sec. 1008.8  Action in response to a request for access: disclosure of requested information to subject individuals.

    (a) Consistent with the recommendation of the System Manager and the 
concurrence of the appropriate General Counsel, the Privacy Act Officer 
shall provide to the requesting individual the information about or 
access to a record or information pertaining to the individual contained 
in a system of records, unless the request is being denied in accordance 
with Sec. 1008.9 of this part. The Privacy Act Officer shall notify the 
individual of such determination and provide the following information:

[[Page 787]]

    (1) Whether there is information or a record pertaining to him that 
is contained in a system of records;
    (2) The methods of access as set forth in paragraph (b) of this 
section;
    (3) The place at which the record or information may be inspected;
    (4) The earliest date on which the record or information may be 
inspected and the period of time that the record or information will 
remain available for inspection. In no event shall the earliest date be 
later than thirty calendar days from the date of notification.
    (5) An indication that copies of the records are enclosed, or the 
estimated date by which a copy of the record could be mailed and the 
estimate of fees that would be charged to provide other than the first 
copy of the record, pursuant to Sec. 1008.13.
    (6) The fact that the individual, if he wishes, may be accompanied 
by another person during the in-person review of the record or 
information, provided that the individual shall first furnish to the 
Privacy Act Officer a written statement authorizing disclosure of that 
individual's record in the accompanying person's presence; and
    (7) Any additional requirements that must be satisfied in order to 
provide information about or to grant access to the requested record or 
information.
    (b) The following methods of access to records or information 
pertaining to an individual and contained in a system of records may be 
available to that individual depending on the circumstances of a 
particular request:
    (1) A copy of the record may be enclosed with the initial response 
in accordance with paragraph (a) of this section;
    (2) Inspection in person may be arranged during the regular business 
hours of the DOE in the office specified by the Privacy Act Officer;
    (3) Transfer of records to a Federal facility more convenient to the 
individual may be arranged, but only if the Privacy Act Officer 
determines that a suitable facility is available, that the individual's 
access can be properly supervised at that facility, and that transmittal 
of the records or information to that facility will not unduly interfere 
with operations of the DOE or involve unreasonable costs, in terms of 
money or manpower; and
    (4) The requested number of copies in addition to the initial copy 
may be mailed at the request of the individual, subject to payment of 
the fees prescribed in Sec. 1008.13.
    (c) If the Privacy Act Officer believes, based upon a recommendation 
of the System Manager and the agency's medical officer, that disclosure 
of medical and/or psychological information directly to an individual 
could have an adverse effect upon that individual, the individual may be 
asked:
    (1) To designate in writing a physician or mental health 
professional to whom he would like the records to be disclosed; or
    (2) To submit a signed statement by his physician or a mental health 
professional indicating that, in his view, disclosure of the requested 
records or information directly to the individual will not have an 
adverse effect upon the individual. If the individual refuses to 
designate a physician or mental health professional, or to submit a 
signed statement from his physician or mental health professional as 
provided in paragraphs (c) (1) and (2) of this section, the request will 
be considered denied, and the appeal rights provided in Sec. 1008.11 
will be available to the individual.
    (d) The Privacy Act Officer shall supply such other information and 
assistance at the time of an individual's review of his record as is 
necessary to make the record intelligible to the individual.
    (e) The DOE will, as required by subsection (d)(1), assure an 
individual's right ``to review his or her record and have a copy made of 
all or any portion thereof in a form comprehensible to him.'' However, 
original records will be made available to individuals only under the 
supervision of the Privacy Act Officer or his designee. Individuals will 
be provided at their request with a copy, but not the original, of 
records pertaining to them.



Sec. 1008.9  Action in response to a request for access: initial denial of access.

    (a) A request by an individual for information about or access to a 
record

[[Page 788]]

or information pertaining to that individual that is contained in a 
system of records may be denied only upon a determination by the 
appropriate System Manager, with the concurrence of the appropriate 
General Counsel, that:
    (1) The record is subject to an exemption under Sec. 1008.12;
    (2) The record is information compiled in reasonable anticipation of 
a civil action or proceeding; or
    (3) The individual has unreasonably failed to comply with the 
procedural requirements of this part.
    (b) The Privacy Act Officer shall give written notice of the denial 
of a request of information about or access to records or information 
pertaining to the individual and contained in a system of records. Such 
written notice shall be sent by certified or registered mail, return 
receipt requested and shall include the following information:
    (1) The System Manager's name and title;
    (2) The reasons for the denial, including citation to the 
appropriate sections of the Privacy Act and this part; and
    (3) Notification of the individual's right to appeal the denial 
pursuant to Sec. 1008.11 and to administrative and judicial review 
under 5 U.S.C. 552a(g)(1)(B), as limited by 552a(g)(5).
    (c) Nothing in this section shall:
    (1) Require the furnishing of information or records that are not 
retrieved by the name or by some other identifying number, symbol or 
identifying particular of the individual making the request;
    (2) Prevent a System Manager from waiving any exemption authorizing 
the denial of records, in accordance with Sec. 1008.12.



Sec. 1008.10  Action in response to a request for correction or amendment of records.

    (a) The Privacy Act Officer must respond in writing to the requester 
for amendment of a record within 10 working days of receipt. This 
response shall inform the requester of the decision whenever possible.
    (b) If the decision cannot be reached within 10 working days, the 
requester shall be informed of the reason for delay and the date (within 
20 working days) it is expected that the decision will be made.
    (c) The Privacy Act Officer, consistent with the recommendation of 
the System Manager or Managers, as concurred in by the appropriate 
General Counsel, if appropriate, shall do one of the following:
    (1) Instruct the System Manager to make the requested correction or 
amendment; and advise the individual in writing of such action, 
providing either a copy of the corrected or amended record, or a 
statement as to the means whereby the correction or amendment was 
accomplished in cases where a copy cannot be provided (for example, 
erasure of information from a record maintained only in an electronic 
data bank); or
    (2) Inform the individual in writing that his request is denied in 
whole or in part. Such denial shall be sent by certified or registered 
mail, return receipt requested, and shall provide the following 
information:
    (i) The System Manager's name and title;
    (ii) The reasons for the denial; including citation to the 
appropriate sections of the Act and this part; and
    (iii) Notification of the individual's right to appeal the denial 
pursuant to Sec. 1008.11 and to administrative and judicial review 
under 5 U.S.C. 552a(g)(1)(B), as limited by 5 U.S.C. 552a(g)(5).
    (iv) Notification of the right of the individual to submit a 
statement of disagreement consistent with Sec. 1008.11(g).
    (d) Whenever an individual's record is amended pursuant to a request 
by that individual, the Privacy Act Officer or the System Manager, as 
appropriate, shall notify all persons and agencies to which the amended 
portion of the record had been disclosed prior to its amendment, if an 
accounting of such disclosure was required by the Act. The notification 
shall request a recipient agency maintaining the record to acknowledge 
receipt of the notification, to correct or amend the record and to 
apprise an agency or person to which it had disclosed the record of the 
substance of the amendment.
    (e) The following criteria will be taken into account by the DOE in 
reviewing a request for amendment:

[[Page 789]]

    (1) The sufficiency of the evidence submitted by the individual;
    (2) The factual accuracy of the information;
    (3) The relevance and necessity of the information in relation to 
the purpose for which it was collected;
    (4) If such information is used in making any determination about 
the individual, whether the information is as accurate, relevant, 
timely, and complete as is reasonably necessary to assure fairness to 
the individual in such determination;
    (5) The degree of possibility that denial of the request could 
unfairly result in a determination adverse to the individual;
    (6) The nature of the record sought to be corrected or amended; and
    (7) The propriety and feasibility of complying with the specific 
means of amendment requested by the individual.
    (f) The DOE will not undertake to gather evidence for the 
individual, but does reserve the right to verify the evidence that the 
individual submits.
    (g) Amendment of a record requested by an individual may be denied 
upon a determination that:
    (1) The individual has failed to establish, by a preponderance of 
the evidence, the propriety of the amendment in relation to the criteria 
stated in paragraph (c) of this section;
    (2) The record sought to be amended was compiled in a terminated 
judicial, quasi-judicial or quasi-legislative proceeding to which the 
individual was a party or participant;
    (3) The record sought to be amended is the subject of a pending 
judicial, quasi-judicial or quasi-legislative proceeding to which the 
individual is a party or participant;
    (4) The amendment would violate a duly enacted statute or 
promulgated regulation;
    (5) The individual has unreasonably failed to comply with the 
procedural requirements of this part; or
    (6) The record has been properly exempted from the provisions of 
subsection (d) of the Act.
    (h) Nothing in this section shall restrict the DOE from granting in 
part or denying in part a request for amendment of records.

[45 FR 61577, Sept. 16, 1980; 46 FR 31637, June 17, 1981]



Sec. 1008.11  Appeals of denials of requests pursuant to Sec. 1008.6.

    (a) Any individual may appeal the denial of a request made by him 
for information about or for access to or correction or amendment of 
records. An appeal shall be filed within 30 calendar days after receipt 
of the denial. When an appeal is filed by mail, the postmark is 
conclusive as to timeliness. The appeal shall be in writing and must be 
signed by the individual. The words ``PRIVACY ACT APPEAL'' should appear 
in capital letters on the envelope and the letter. Appeals of denials 
relating to records maintained in government-wide systems of records 
reported by the OPM, shall be filed, as appropriate, with the Assistant 
Director for Agency Compliance and Evaluation, Office of Personnel 
Management (OPM), 1900 E Street, NW., Washington, DC 20415. All other 
appeals relating to DOE records shall be directed to the Director, 
Office of Hearings and Appeals (OHA), Department of Energy, 
Headquarters, Washington, DC.
    (b) An appeal not addressed and marked as specified in paragraph (a) 
of this section shall be forwarded immediately to the Assistant Director 
for Agency Compliance and Evaluation, OPM, or the Director, OHA, as 
appropriate. An appeal that is not properly addressed by an individual 
shall not be deemed to have been received for purposes of time periods 
in this section until actual receipt of the appeal by the Assistant 
Director, OPM, or the Director, OHA. In each instance when an appeal so 
forwarded is received, the individual filing the appeal shall be 
notified that the appeal was improperly addressed and the date when the 
appeal was received by the Assistant Director, OPM, or the Director, 
OHA.
    (c) The appeal shall include the following:
    (1) A copy of the original request for access or for amendment;
    (2) A copy of the initial denial; and
    (3) A statement of the reasons why the initial denial is believed to 
be in error.

[[Page 790]]

    (d) The records or record to which the individual was denied access, 
or which was requested to be corrected or amended, will be supplied to 
the appropriate appeal authority by the Privacy Act Officer who issued 
the initial denial. While such records normally will comprise the entire 
record on appeal, the appeal authority may seek such additional 
information as is necessary to assure that the final determination is 
fair and equitable.
    (e) No personal appearance or hearing on appeal will be allowed.
    (f) The appropriate appeal authority for DOE records shall act upon 
the appeal and issue a final determination in writing no later than 20 
working days from the date on which the appeal is received. However, the 
appeal authority may extend the ten-day period upon a determination that 
a fair and equitable review cannot be made within that period. In such 
cases the individual shall be advised in writing of the reason for the 
extension and of the estimated date by which a final determination will 
be issued. The final determination shall be issued not later than the 
30th working day after receipt of the appeal unless unusual 
circumstances, as defined in Sec. 1008.7, are present, whereupon an 
additional 30 days may be extended.
    (g) If an appeal of a denial of access is granted, a copy of the 
determination shall be transmitted promptly to the individual, the 
Privacy Act Officer and the appropriate System Manager. Upon receipt of 
the determination, the Privacy Act Officer promptly shall take action 
consistent with Sec. 1008.8.
    (h) If an appeal of a denial of correction or amendment is granted, 
the final determination shall identify the specific corrections or 
amendments to be made. A copy of the determination shall be transmitted 
promptly to the individual, the Privacy Act Officer and the appropriate 
System Manager. Upon receipt of the determination, the Privacy Act 
Officer promptly shall take steps to insure that the actions set forth 
in Sec. 1008.10 (a) and (b) are taken.
    (i) If the appeal of a denial of access is denied, the final 
determination shall state the reasons for the denial and shall be 
transmitted promptly to the individual, the Privacy Act Officer and the 
appropriate System Manager. The determination shall also include a 
statement identifying the right of the individual to administrative and 
judicial review pursuant to 5 U.S.C. 552a(g)(1)(B) as limited by 5 
U.S.C. 552a(g)(5).
    (j) If the appeal of a denial of correction or amendment is denied, 
the final determination shall state the reasons for the denial and shall 
be transmitted promptly to the individual, the Privacy Act Officer and 
the appropriate System Manager.
    (1) The determination also shall include the following:
    (i) Notice of the right of the individual to file with the Privacy 
Act Officer a concise, signed statement of reasons for disagreeing with 
the final determination, receipt of which statement will be acknowledged 
by the Privacy Act Officer.
    (ii) An indication that any disagreement statement filed by the 
individual will be noted and appended to the disputed record and that a 
copy of the statement will be provided by the Privacy Act Officer or the 
System Manager, as appropriate, to persons and agencies to which the 
record is disclosed subsequent to the date of receipt of such statement;
    (iii) An indication that the DOE shall append to any disagreement 
statement filed by the individual a copy of the final determination or a 
summary thereof, which determination or summary also will be provided to 
persons and agencies to which the disagreement statement is disclosed; 
and,
    (iv) A statement of the right of the individual to administrative 
and judicial review under 5 U.S.C. 552a(g)(1)(B), as limited by 5 U.S.C. 
552a(g)(5).
    (2) Although a copy of the final determination or a summary thereof 
will be treated as part of the individual's record for purposes of 
disclosure in instances where the individual has filed a disagreement 
statement, it will not be subject to correction or amendment by the 
individual.
    (3) Where an individual files a statement of disagreement consistent 
with

[[Page 791]]

paragraph (j)(1) of this section, the Privacy Act Officer shall take 
steps to insure that the actions provided in paragraphs (j)(1) (i), (ii) 
and (iii) of this section are taken.



Sec. 1008.12  Exemptions.

    (a) General exemptions--(1) Generally. 5 U.S.C. 552a(j)(2) allows 
the exemption of any system of records within the DOE from any part of 
section 552a except subsections (b), (c)(1) and (2), (e)(4)(A) through 
(F) (e)(6), (7), (9), (10), and (11), and (i) of the Act if the system 
of records is maintained by a DOE component which performs as its 
principal function any activity pertaining to the enforcement of 
criminal laws, including police efforts to prevent, control, or reduce 
crime or to apprehend criminals, and which consists of:
    (i) Information compiled for the purpose of identifying individual 
criminal offenders and alleged offenders;
    (ii) Information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; or
    (iii) Reports identifiable to an individual compiled at any stage of 
the process of enforcement of the criminal laws from arrest or 
indictment through release from supervision.
    (2) Applicability of general exemptions to DOE systems of records--
(i) Investigative Files of the Inspector General (DOE-54). This system 
of records is being exempted pursuant to subsection (j)(2) of the Act in 
order to aid the Office of the Inspector General in the performance of 
its law enforcement function. The system is exempted from subsections 
(c)(3) and (4); (d)(1)-(4); (e)(1)-(3); (4)(G), (H), and (I); (5) and 
(8); and (g) of the Act. The system is exempt from these provisions for 
the following reasons: notifying an individual at the individual's 
request of the existence of records in an investigative file pertaining 
to such individual, or granting access to an investigative file could 
(A) interfere with investigative and enforcement proceedings and with 
co-defendants' right to a fair trial; (B) disclose the identity of 
confidential sources and reveal confidential information supplied by 
these sources; and (C) disclose investigative techniques and procedures.
    (ii) Law Enforcement Investigative Records (DOE-84). This system of 
records is being exempted pursuant to subsection (j)(2) of the Act to 
enable the Office of Counterintelligence to carry out its duties and 
responsibilities as they pertain to its law enforcement function. The 
system is exempted from subsections (c)(3) and (4), (d), (e) (1), (2), 
and (3), (e)(4) (G) and (H), (e)(8), (f), and (g) of the Act. The system 
is exempt from these provisions for the following reasons: Notifying an 
individual at the individual's request of the existence of records in an 
investigative file pertaining to such individual, or granting access to 
an investigative file could interfere with investigative and enforcement 
proceedings and with co-defendants' right to a fair trial; disclose the 
identity of confidential sources and reveal confidential information 
supplied by these sources; and disclose investigative techniques and 
procedures.
    (b) Specific exemptions. Subsection (k) of the Privacy Act 
establishes seven categories of systems of records which may be exempted 
from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (7) of 
the Act. The Department has exempted systems of records under four of 
these provisions, as follows:
    (1) Classified material. (i) Subsection (k)(1) permits exemption of 
systems of records that are specifically authorized under criteria 
established under statute or Executive Order to be kept secret in the 
interest of national defense or foreign policy, and are in fact properly 
classified pursuant to such statute or Executive Order. Restricted Data 
and Formerly Restricted Data under the Atomic Energy Act of 1954, as 
amended, are included in this exemption.
    (ii) The DOE systems of records listed below have been exempted 
under subsection (k)(1) to the extent they contain classified 
information, in order to prevent serious damage to the national defense 
or foreign policy that could arise from providing individuals access to 
classified information. Systems exempted under subsection (k)(1) are:
    (A) Alien Visits and Participation (DOE-52).
    (B) Clearance Board Cases (DOE-46).

[[Page 792]]

    (C) Security Correspondence Files (DOE-49).
    (D) Foreign Travel Records (DOE-27)
    (E) Legal Files (Claims, Litigations, Criminal Violation, Patents, 
and other Legal Files) (DOE-41).
    (F) Personnel Security Clearance Files (DOE-43).
    (G) Personnel Security Clearance Index (Automated) (DOE-42).
    (H) Special Access Authorization for Categories of Classified 
Information (DOE-44).
    (I) Administrative and Analytical Records and Reports (DOE-81).
    (J) Law Enforcement Investigative Records (DOE-84).
    (K) Employee Concerns Program Records (DOE-3)
    (L) Whistleblower Investigation, Hearing and Appeal Records (DOE-7)
    (M) Intelligence Related Access Authorization (DOE-15)
    (2) Investigatory material compiled for law enforcement purposes. 
(i) Subsection (k)(2) permits the exemption of investigatory material 
compiled for law enforcement purposes: Provided, however, That if any 
individual is denied any right, privilege, or benefit to which he would 
otherwise be entitled by Federal law, or for which he would otherwise be 
eligible, as a result of the maintenance of such material, such material 
shall be provided to such individual, except to the extent that the 
disclosure of such material would reveal the identity of a source who 
furnished information to the Government under an express promise that 
the identity of the source would be held in confidence, or, prior to 
September 27, 1975, under an implied promise that the identity of the 
source would be held in confidence.
    (ii) The DOE systems of records listed below have been exempted 
under subsection (k)(2) in order to prevent subjects of investigation 
from frustrating the investigatory process through access to records 
about themselves or as a result of learning the identities of 
confidential informants; to prevent disclosure of investigative 
techniques; to maintain the ability to obtain necessary information; and 
thereby to insure the proper functioning and integrity of law 
enforcement activities. Systems of records exempted under subsection 
(k)(2) are:
    (A) Alien Visits and Participation (DOE-52).
    (B) Clearance Board Cases (DOE-46).
    (C) Security Correspondence Files (DOE-49).
    (D) Foreign Travel Records (DOE-27).
    (E) Legal Files (Claims, Litigation, Criminal Violations, Patents, 
and other Legal Files) (DOE-41).
    (F) Personnel Security Clearance Files (DOE-43).
    (G) Personnel Security Clearance Index (Automated) (DOE-42).
    (H) Special Access Authorization for Categories of Classified 
Information (DOE-44).
    (I) DOE Personnel and General Employment Records (DOE-1) (only 
personnel investigative records concerning current and former DOE 
employees and applicants for employment by DOE).
    (J) Investigative Files of the Inspector General (DOE-54) (only 
investigative records concerning past and present DOE employees).
    (K) Administrative and Analytical Records and Reports (DOE-81).
    (L) Law Enforcement Investigative Records (DOE-84).
    (M) Allegation-Based Inspections Files of the Office of Inspector 
General (DOE-83).
    (N) Employee Concerns Program Records (DOE-3)
    (O) Whistleblower Investigation, Hearing and Appeal Records (DOE-7)
    (P) Intelligence Related Access Authorization (DOE-15)
    (3) Investigatory material compiled for determining suitability for 
Federal employment. (i) Subsection (k)(5) permits exemption of systems 
of records that contain investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualification for 
Federal civilian employment, military service, Federal contracts, or 
access to classified information, but only to the extent that the 
disclosure of such material would reveal the identity of a source who 
furnished information to the Government under an express promise that 
the identity of the source would be held in confidence, or, prior to 
September 27, 1975, under an implied promise that the identity of the 
source would be held in confidence.

[[Page 793]]

    (ii) The DOE systems of records listed below have been exempted 
under subsection (k)(5) to the extent they contain the kinds of records 
described in subsection (k)(5) in order to maintain DOE's ability to 
obtain candid information on candidates for employment, contracts, or 
access to classified information and to fulfill commitments made to 
sources to protect the confidentiality of information, and thereby to 
facilitate proper selection or continuation of the best applicants or 
persons for a given position or contract. Systems exempted under 
subsection (k)(5) are:
    (A) DOE Personnel and General Employment Records (DOE-1);
    (B) Personnel Security Clearance Files (DOE-43);
    (C) Investigative Files of the Inspector General (DOE-54);
    (D) Alien Visits and Participation (DOE-52);
    (E) Clearance Board Cases (DOE-46);
    (F) Security Correspondence Files (DOE-49);
    (G) Foreign Travel Records (DOE-27);
    (H) Legal Files (Claims, Litigation, Criminal Violations, Patents, 
and other Legal Files) (DOE-41);
    (I) Personnel Security Clearance Index (Automated) (DOE-42);
    (J) Special Access Authorization for Categories of Classified 
Information (DOE-44);
    (K) DOE Personnel: Supervisor-Maintained Personnel Records (DOE-2);
    (L) Applications for DOE Employment (DOE-4);
    (M) Administrative and Analytical Records and Reports (DOE-81);
    (N) Law Enforcement Investigative Records (DOE-84).
    (O) Allegation-Based Inspections Files of the Office of Inspector 
General (DOE-83).
    (P) Employee Concerns Program Records (DOE-3)
    (Q) Whistleblower Investigation, Hearing and Appeal Records (DOE-7)
    (R) Intelligence Related Access Authorization (DOE-15)
    (4) Testing or examination material. (i) Subsection (k)(6) permits 
exemption of systems of records that include testing or examination 
material used solely to determine individual qualifications for 
appointment or promotion in the Federal service, the disclosure of which 
would compromise the objectivity or fairness of the testing of 
examination process.
    (ii) The DOE systems of records listed below have been exempted to 
the extent they contain testing or examination material in order to 
protect the integrity of the personnel testing and evaluation process 
and to avoid providing individuals with unfair advantage, by premature 
or unfair disclosure of testing or rating information. Systems exempted 
under subsection (k)(6) are:
    (A) (DOE-2) DOE Personnel: Supervisor-Maintained Personnel Records.
    (B) (DOE-4) Applications for DOE Employment.
    (C) (DOE-1) DOE Personnel and General Employment Records.
    (c) Application of exemptions to particular requests. (1) The 
Privacy Act Officer, consistent with the recommendation of the System 
Manager and with concurrence of the appropriate General Counsel, may 
make available records which the DOE is authorized to withhold under 
this section.
    (2) With respect to records containing material or information that 
would reveal the identity of a source who was given an assurance of 
confidentiality, a determination to make records available pursuant to 
paragraph (c)(1) of this section shall be made only if the source 
consents to the release of such information to the individual, or if it 
is determined that the material or information is not adverse or 
detrimental to the individual, or for good cause shown. The exercise of 
discretion with respect to waiver of the exemption shall be final.
    (3) Prior to making a determination to deny access to a record in a 
system of records covered by exemption (k)(1) for classified material 
(see paragaph (b)(1) of this section), the System Manager shall consult 
with the Director, Division of Classification, to verify the current 
classification status of the information in the requested record.

[45 FR 61577, Sept. 16, 1980, as amended at 60 FR 35836, July 12, 1995; 
62 FR 67519, Dec. 24, 1997; 67 FR 4171, Jan. 29, 2002]

[[Page 794]]



Sec. 1008.13  Fees.

    (a) The only fees to be charged to or collected from an individual 
under the provisions of this part are for copying records at the request 
of the individual. The fee charged shall be consistent with the fee 
schedule set forth in paragraph (b) of this section.
    (1) No fees shall be charged or collected for the following: Search 
for and retrieval of records; review of records; copying by the DOE 
incident to granting access; copying at the initiative of the DOE 
without a request from the individual; copying when the aggregate of 
fees for copying is $25 or less; time spent providing copies; 
transportation of records and personnel; and first class postage.
    (2) It is the policy of the DOE to provide an individual with one 
copy of each record corrected or amended pursuant to request without 
charge.
    (3) As required by the Office of Personnel Management in its 
published regulations implementing the Act, the DOE will charge no fee 
for a single copy of a personnel record covered by that Commission's 
Government-wide published notice of systems of records.
    (b) The schedule of fees is as follows:
    (1) $.10 per copy of each page.
    (2) For other forms of copying and other forms of materials (e.g., 
cassettes, computer materials), the direct cost of the materials, 
personnel, and equipment shall be charged, but only with prior specific 
approval of the person making the request, when such charges would be in 
excess of $25.
    (c) The Privacy Act Officer may, upon application by an individual, 
furnish any records without charge or at a reduced rate, if the Privacy 
Act Officer determines that such waiver or reduction of fees is in the 
public interest.
    (d) Payment shall be made by check or money order payable to the 
United States Department of Energy.
    (e) Advance payment of all or part of the fees may be required at 
the discretion of the Privacy Act Officer. Unless the individual 
requesting the copies specifically states that he is willing to pay 
whatever fees are assessed for meeting the request or, alternatively, 
specifies an amount in excess of $25 that he is willing to pay and which 
in fact covers the anticipated fees for meeting the request, a request 
that is expected to involve assessed fees in excess of $25 shall not be 
deemed to have been received, for purposes of the time periods specified 
in Sec. Sec. 1008.7 and 1008.10 until the individual making the request 
is notified of the anticipated cost, agrees to bear it, and makes any 
advance deposit required. Such notification shall be made by the Privacy 
Act Officer as promptly as possible after receipt of the request.



Sec. 1008.14  Requests under false pretenses.

    Subsection (i)(3) of the Act provides that any person who knowingly 
and willingly requests or obtains any record concerning an individual 
from an agency under false pretenses shall be quilty of a misdeamenaor 
and fined not more than $5,000.



Sec. 1008.15  Civil remedies.

    Subsection (g) of the Act provides that an individual may bring suit 
against the DOE for a violation of the Privacy Act, as follows:
    (a) If the DOE refuses to grant a request for access to an 
individual's records, the court may order the DOE to provide the 
individual with access to his or her records and award reasonable 
litigation costs and attorney's fees.
    (b) If the DOE refuses to amend a record or fails to review an 
amendment request as required by subsection (d)(3) of the Act, the court 
may order the DOE to make the amendment and award reasonable litigation 
costs and attorney's fees.
    (c) If the DOE makes an adverse determination based on a record 
which is not maintained in an accurate, timely, relevant, and complete 
manner, the individual may be awarded actual damages of at least $1,000. 
In order to prevail, the individual must show that:
    (1) The DOE's action was willful and intentional; and
    (2) The adverse determination was based on the faulty record.
    (d) If the DOE fails to comply with any other provision of the 
Privacy Act or agency rule promulgated under the Act, in such a way as 
to have an adverse effect on the individual, the court may award actual 
damages of at least

[[Page 795]]

$1,000. In order to prevail, the individual must show that:
    (1) The DOE's action was willful and intentional; and
    (2) The agency's action had an adverse effort on the individual; and
    (3) The adverse effect was causally related to the DOE's action.



                  Subpart C_Disclosure to Third Parties



Sec. 1008.16  Prohibition against disclosure.

    Except as provided in Sec. 1008.17, the DOE shall not disclose any 
record which is contained in a system of records, by any means of 
communication, to any agency or to any person other than the individual 
who is the subject of the record.



Sec. 1008.17  Conditions of disclosure.

    (a) Notwithstanding the prohibition contained in Sec. 1008.16, the 
DOE may disclose records covered by this part (1) to the individual to 
whom the record pertains or to an agency or (2) to a person other than 
the individual where he has given his prior written consent to the 
disclosure or has made a written request for such disclosure.
    (b) Notwithstanding the prohibition contained in Sec. 1008.16 the 
DOE may also disclose records covered by this part whenever the 
disclosure is:
    (1) To officers and employees of the DOE who have a need for the 
record in the performance of their duties;
    (2) Required under the Freedom of Information Act (5 U.S.C. 552);
    (3) For a routine use (as defined in Sec. 1008.2) which is 
described in the Federal Register notice for the system of records which 
the disclosure is to be made;
    (4) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to the provisions of 
title 13 of the United States Code;
    (5) To a recipient who has provided the agency with advance adequate 
written assurance that the record will be used solely as a statistical 
research or reporting record, and the record is to be transferred in a 
form that is not individually identifiable;
    (6) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the United States Government, or for evaluation by the 
Administrator of General Services or his designee to determine whether 
the record has such value;
    (7) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law and if the head of the agency or instrumentality has made a 
written request to the DOE specifying the particular portion desired and 
the law enforcement activity for which the record is sought;
    (8) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if upon such disclosure 
notification is transmitted to the last known address of such 
individual;
    (9) To either House of Congress, or to any committee or subcommittee 
thereof, any joint committee of Congress or subcommittee of any such 
joint committee, to the extent of matter within its jurisdiction;
    (10) To the Comptroller General, or any of his authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office;
    (11) Pursuant to the order of a court of competent jurisdiction.
    (c) Notwithstanding the prohibition contained in Sec. 1008.16 of 
this part, the DOE may also disclose records covered by this part when 
disseminating a corrected or amended record or notation of a 
disagreement statement as required by subsection (c)(4) of the Act.



Sec. 1008.18  Accounting for disclosures.

    (a) For each disclosure of information contained in a system of 
records under his control, except disclosures to authorized officers and 
employees of DOE and disclosures required by the Freedom of Information 
Act, the appropriate System Manager shall keep an accurate accounting 
of:
    (1) The date, nature, and purposes of each disclosure of a record 
made to any person or to another agency; and

[[Page 796]]

    (2) The name and address of the person or agency to which the 
disclosure was made.
    (b) The accounting shall be retained for at least five years or the 
life of the record, whichever is longer, after the disclosure for which 
the accounting is made.
    (c) The accounting described in paragraph (a) of this section shall 
be made available to the individual named in the record upon written 
request to the Privacy Act Officer at the appropriate DOE location 
listed at Sec. 1008.2(c) of this part. However, the accounting shall 
not be revealed with respect to disclosures made under Sec. 
1008.17(b)(7) of this part, pertaining to law enforcement activity; or 
with respect to disclosures involving system of records for which DOE 
had claimed an exemption from certain requirements of the Act, as 
provided in Sec. 1008.12 of this part.
    (d) Whenever an amendment or correction of a record or a notation of 
dispute concerning the accuracy of records is made by the DOE in 
accordance with Sec. Sec. 1008.10(a)(2)(iv) and 1008.11(g) of this 
part, DOE shall inform any person or other agency to whom the record was 
previously disclosed if an accounting of the disclosure was made 
pursuant to the requirements of paragraph (a) of this section, unless 
the disclosure was made pursuant to Sec. 1008.17(b)(7) of this part; or 
the disclosure involved a system of records of which DOE has claimed an 
exemption from certain requirements of the Act, as provided in Sec. 
1008.12 of this part.
    (e) The System Manager shall make reasonable efforts to serve notice 
on an individual when any record containing information about such 
individual in a DOE system of records is disclosed to any person under 
compulsory legal process when such process becomes a matter of public 
record.
    (f) Prior to disclosing any record about an individual to any person 
other than an agency, unless the disclosure is pursuant to the Freeedom 
of Information Act, the System Manager shall make reasonable efforts to 
assure that each record is accurate, complete, timely, and relevant for 
DOE's purposes.



Sec. 1008.19  Criminal penalties--improper disclosure.

    Subsection (i)(1) of the Act provides that a Federal employee who 
willfully discloses information subject to the Privacy Act in violation 
of the Act or rules promulgated under it shall be guilty of a 
misdemeanor and fined up to $5,000.



      Subpart D_Maintenance and Establishment of Systems of Records



Sec. 1008.20  Content of systems of records.

    (a) The DOE will maintain in its records only such information about 
an individual as is relevant and necessary to accomplish a purpose DOE 
is required to accomplish by statute or by Executive Order of the 
President, unless an exemption ot this requirement has been claimed by 
DOE, as provided in Sec. 1008.12 of this part.
    (b) The DOE will maintain no record describing how any individual 
exercises rights guaranteed by the First Amendment unless expressly 
authorized by statute or by the individual about whom the record is 
maintained or unless it is pertinent to and within the scope of an 
authorized law enforcement activity.
    (c) The DOE will maintain all records that are used by it to make 
any determination about any individual with such accuracy, relevance, 
timeliness and completeness as is reasonably necessary to assure 
fairness to the individual in such determination.



Sec. 1008.21  Collection of information by DOE about an individual for a system of records.

    (a) The DOE will collect information, to the greatest extent 
practicable, directly from the subject individual when the use of the 
information may result in adverse determinations about an individual's 
rights, benefits and privileges under Federal programs, unless an 
exemption from the Act to this requirement has been claimed by DOE as 
provided in Sec. 1008.12
    (b) Unless an exemption from the Act has been claimed by DOE under 
subsection (j)(2), as provided in Sec. 1008.12, DOE shall inform each 
individual

[[Page 797]]

whom it asks to supply information, on the form or other means by which 
it uses to collect the information, or on a separate form that can be 
retained by the individual, of the following:
    (1) The authority (whether granted by statute or by Executive Order 
of the President) that authorizes the solicitation of the information 
and whether the provision of such information is mandatory or voluntary;
    (2) The principal purpose or purposes for which the information is 
intended to be used;
    (3) The routine uses that may be made of the information, as 
published in the Federal Register pursuant to the requirements of the 
Act; and
    (4) The effect on the individual, if any, of not providing all or 
any part of the requested information.



Sec. 1008.22  Use and collection of social security numbers.

    (a) The System Manager of each system of records which utilizes 
social security numbers as a method of identification without statutory 
authorization or authorization by regulation adopted prior to January 1, 
1975, shall revise the system to avoid future collection and use of the 
social security numbers.
    (b) Heads of Headquarters Divisions and Offices and heads of the 
other DOE locations shall insure that employees authorized to collect 
information from individuals are advised that individuals may not be 
required to furnish social security numbers without statutory 
authorization, and that individuals who are requested to provide social 
security numbers voluntarily must be advised that furnishing the number 
is not required and that no penalty or denial of benefits will flow from 
the refusal to provide it.



Sec. 1008.23  Public notice of systems of records.

    (a) The DOE shall publish in the Federal Register at least annually 
a notice of the existence and character of each of its systems of 
records, which notice shall include:
    (1) The name and location of the system;
    (2) The categories of individuals on whom records are maintained in 
the system;
    (3) The categories of records maintained in the system;
    (4) Each routine use of the records contained in the system, 
including the categories of users and the purpose of such use, subject 
to paragraph (d) of this section;
    (5) The policies and practices of the DOE regarding storage, 
retrievability, access controls, retention, and disposal of the records;
    (6) The title and business address of the DOE official who is 
responsible for the system of records;
    (7) The DOE procedures whereby an individual can be notified at his 
request if the system of records contains a record pertaining to him;
    (8) The DOE procedures whereby an individual can be notified at his 
request about how he can gain access to any record pertaining to him 
contained in the system or records, and how he can contest its content; 
and
    (9) The categories of source of records in the systems.
    (b) Notwithstanding the requirements of paragraph (a) of this 
section, the notice of systems of records shall not necessarily include 
the information in paragraphs (a) (7) through (9) of this section if DOE 
has claimed a general or specific exemption from the requirements of the 
Act, as provided in Sec. 1008.12.
    (c) Copies of the notices as printed in the Federal Register shall 
be available at the DOE locations listed at Sec. 1008.2(c). Requests by 
mail for copies of such notices should be sent to Privacy Act Officer, 
Headquarters, U.S. Department of Energy, Washington, DC. 20585. The 
first copy will be furnished free of charge. For each additional copy, 
the costs of printing and handling may be charged.
    (d) DOE shall publish in the Federal Register notice of any new 
routine use or intended routine use of a record in the system of 
records, at least 30 calendar days prior to the implementation of any 
new routine use of a record in a system of records, or at least 30 
calendar days prior to publication of the annual notice of such routine 
uses, as

[[Page 798]]

provided in paragraph (a) of this section, an opportunity for interested 
persons to submit written comments consisting of data, views, or 
arguments regarding such use to DOE, shall be provided.



Sec. 1008.24  Criminal penalties--failure to publish a system notice.

    Subsection (i)(2) of the Act provides that an agency officer or 
employee who willfully maintains a system of records without publishing 
a system notice as required by subsection (e)(4) of the Act shall be 
guilty of a misdemeanor and fined up to $5,000.



PART 1009_GENERAL POLICY FOR PRICING AND CHARGING FOR MATERIALS AND SERVICES SOLD BY DOE--Table of Contents



Sec.
1009.1 Purpose and scope.
1009.2 Definitions.
1009.3 Policy.
1009.4 Exclusions.
1009.5 Supersessions.
1009.6 Dissemination of prices and charges.

    Authority: Sec. 644 of the Dept. of Energy Organization Act, Pub. L. 
95-91, 91 Stat. 565 (42 U.S.C. 7254); Atomic Energy Act of 1954, as 
amended (42 U.S.C. 2011 et seq.) ``User Fee Statue'', 31 U.S.C. 483a, 42 
U.S.C. 2111, 2112 and 2201.

    Source: 45 FR 70430, Oct. 24, 1980, unless otherwise noted.



Sec. 1009.1  Purpose and scope.

    (a) This part establishes Department of Energy policy for 
establishing prices and charges for Department materials and services 
sold to organizations and persons outside the Federal Government.
    (b) This part applies to all elements of the Department except the 
Federal Energy Regulatory Commission.



Sec. 1009.2  Definitions.

    For the purposes of this regulation:
    (a) Allocable cost means a cost allocable to a particular cost 
objective (i.e., a specific function, project, process, or organization) 
if the costs incurred are chargeable or assignable to such cost 
objectives in accordance with the relative benefits received or other 
equitable relationships. Subject to the foregoing, a cost is allocable 
if:
    (1) It is incurred solely for materials or services sold;
    (2) It benefits both the customer and the Department in proportions 
that can be approximated through use of reasonable methods, or
    (3) It is necessary to the overall operation of the Department and 
is deemed to be assignable in part to materials or services sold.
    (b) Byproduct material means any radioactive material (except 
special nuclear material) yielded in or made radioactive by exposure to 
the radiation incident to the process of producing or utilizing special 
nuclear material.
    (c) Charges means an accumulation of job related costs for materials 
and services sold by the Department.
    (d) Commerical price means the price that a willing buyer is 
currently paying or would pay a willing seller for materials and 
services in the market.
    (e) Direct cost is any cost which can be identified specifically 
with a particular final cost objective.
    (f) Full cost includes all direct costs and all allocable costs of 
producing the material or providing the service consistent with 
generally accepted accounting principles. Direct costs and allocable 
costs may include, but are not limited to, the following cost elements:
    (1) Direct labor.
    (2) Personnel fringe benefits.
    (3) Direct materials.
    (4) Other direct costs.
    (5) Processing materials and chemicals.
    (6) Power and other utilities.
    (7) Maintenance.
    (8) Indirect cost, i.e., common costs which cannot be directly 
assigned to specific cost objectives and are therefore allocated to cost 
objectives in a systematic cost allocation process.
    (9) Depreciation which includes depreciation costs that are directly 
associated with facilities and equipment utilized, and allocated 
depreciation costs for support and general facilities and equipment.
    (10) Added factor includes general and administrative costs and 
other support costs that are incurred for the

[[Page 799]]

benefit of the Department, an organizational unit or a material or 
service as a whole.
    (g) Prices means the monetary amounts generally established and 
published for recurring sales of the same materials and services.
    (h) Source material means uranium or thorium.
    (i) Special nuclear material means plutonium, uranium enriched in 
the isotope 233 or in the isotope 235, or any materials artificially 
enriched by any of the foregoing. Special Nuclear Material does not 
include source material.



Sec. 1009.3  Policy.

    (a) The Department's price or charge for materials and services sold 
to persons and organizations outside the Federal Government shall be the 
Government's full cost for those materials and services, unless 
otherwise provided in this part.
    (b) Exceptions from the Department pricing and charging policy may 
be authorized in accordance with the following provisions:
    (1) Prices and charges for byproduct material sold pursuant to 42 
U.S.C. 2111 and 2112 et seq. shall be either the full cost recovery 
price or the commercial price, whichever is higher, except that lower 
prices and charges may be established by the Department if it is 
determined that such lower prices and charges (i) will provide 
reasonable compensation to the Government for such material, (ii) will 
not discourage the use of or the development of sources of supply 
independent of the DOE of such material, and (iii) will encourage 
research and development. In individual cases, if (ii) and (iii) cannot 
be equally accommodated, greater weight will be given to encouragement 
of research and development.
    (2) Prices and charges for materials and services sold pursuant to 
42 U.S.C. 2201 shall be either the full cost recovery price or the 
commercial price, whichever is higher, except that lower prices and 
charges may be established by the Department if it is determined that 
such lower prices and charges will provide reasonable compensation to 
the Government and will not discourage the development of sources of 
supply independent of the DOE of such material.



Sec. 1009.4  Exclusions.

    This part shall not apply when the amount to be priced or charged is 
otherwise provided for by statute, Executive Order, or regulations. This 
part does not apply to:
    (a) Fees, penalties and fines established by the Economic Regulatory 
Administration of DOE.
    (b) Power marketing and related activities of the Alaska Power 
Administration, the Bonneville Power Administration, the Southeastern 
Power Administration, the Southwestern Power Administration, and the 
Western Power Administration.
    (c) Crude oil, natural gas and other petroleum products and services 
by or from the Naval Petroleum and Oil Shale Reserves.
    (d) Uranium enriching services, source material, and special nuclear 
material.
    (e) Requests for information under the Freedom of Information Act 
and the Privacy Act.
    (f) Energy data and information provided by the Energy Information 
Administration.
    (g) Crude oil and related materials and services from the Strategic 
Petroleum Reserve.
    (h) The disposal of excess and surplus property.
    (i) Access permits for uranium enrichment technology issued in 
accordance with 10 CFR part 725.
    (j) Materials and services provided pursuant to a cooperative 
agreement, research assistance contract or grant, or made available to a 
DOE contractor in connection with a contract, the primary purpose of 
which is to procure materials or services for DOE.



Sec. 1009.5  Supersessions.

    Prices which appear in Federal Register Notices previously published 
by the Department, or its predecessor agencies, for materials and 
services covered by this rule are hereby superseded.

[[Page 800]]



Sec. 1009.6  Dissemination of prices and charges.

    Current prices and charges for specific materials and services are 
available from the DOE laboratory or office providing the material or 
service, or from the responsible program office. If this office cannot 
be determined, inquiries regarding the appropriate contact office should 
be addressed to the Office, of Finance and Accounting, Product 
Accounting and Pricing Branch, Mail Station 4A-139, 1000 Independence 
Avenue, SW., Washington, DC 20585.



PART 1010_CONDUCT OF EMPLOYEES AND FORMER EMPLOYEES--Table of Contents



                     Subpart A_Conduct of Employees

Sec.
1010.101 General.
1010.102 Cross-references to employee ethical conduct standards, 
          financial disclosure regulations, and other conduct rules.
1010.103 Reporting wrongdoing.
1010.104 Cooperation with the Inspector General.

   Subpart B_Procedures for Exemption of Scientific and Technological 
      Information Communications From Post-Employment Restrictions

1010.201 Purpose and scope.
1010.202 Definitions.
1010.203 Procedures for review and approval of requests.

    Authority: 5 U.S.C. 301, 303, 7301; 5 U.S.C. App. (Inspector General 
Act of 1978); 18 U.S.C. 208; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., 
p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 
306.

    Source: 61 FR, 35088, July 5, 1996, unless otherwise noted.

    Effective Date Note: At 75 FR 75375, December 3, 2010, the authority 
citation to Part 1010 was revised, effective January 3, 2011. For the 
convenience of the user, the revised text is set forth as follows:
    Authority: 5 U.S.C. 301, 303, 7301; 5 U.S.C. App. (Ethics in 
Government Act); 5 U.S.C. App. (Inspector General Act of 1978); E.O. 
12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 
12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105; 18 U.S.C. 
207, 208.



                     Subpart A_Conduct of Employees

    Effective Date Note: At 75 FR 75376, December 3, 2010, Sec. 
1010.101 through 1010.104 were designated as Subpart A, and a subpart 
heading was added, effective January 3, 2011.



Sec. 1010.101  General.

    This part applies to employees of the Department of Energy (DOE), 
excluding employees of the Federal Energy Regulatory Commission.

    Effective Date Note: At 75 FR 75376, Dec. 3, 2010, Sec. 1010.101 
was amended by removing the word ``part,'' and adding the word 
``subpart'' in its place, effective January 3, 2011.



Sec. 1010.102  Cross-references to employee ethical conduct standards, financial disclosure regulations, and other conduct rules.

    Employees of DOE are subject to the Standards of Ethical Conduct for 
Employees of the Executive Branch at 5 CFR part 2635, the DOE regulation 
at 5 CFR part 3301 which supplements the executive branch-wide 
standards, the executive branch-wide financial disclosure regulations at 
5 CFR part 2634, the executive branch-wide financial interests 
regulations at 5 CFR part 2640, and the executive branch-wide employee 
responsibilities and conduct regulation at 5 CFR part 735.

[61 FR 35088, July 5, 1996, as amended at 63 FR 30111, June 3, 1998]



Sec. 1010.103  Reporting wrongdoing.

    (a) Employees shall, in fulfilling the obligation of 5 CFR 
2635.101(b)(11), report fraud, waste, abuse, and corruption in DOE 
programs, including on the part of DOE employees, contractors, 
subcontractors, grantees, or other recipients of DOE financial 
assistance, to the Office of Inspector General or other appropriate 
Federal authority.
    (b) All alleged violations of the ethical restrictions described in 
section 1010.102 that are reported in accordance with (a) of this 
section to an appropriate authority within the Department shall in turn 
be referred by that authority to the designated agency ethics official 
or his delegatee, or the Inspector General.

[[Page 801]]



Sec. 1010.104  Cooperation with the Inspector General.

    Employees shall respond to questions truthfully under oath when 
required, whether orally or in writing, and must provide documents and 
other materials concerning matters of official interest. An employee is 
not required to respond to such official inquiries if answers or 
testimony may subject the employee to criminal prosecution.



   Subpart B_Procedures for Exemption of Scientific and Technological 
      Information Communications From Post-Employment Restrictions

    Source: 75 FR 75376, December 3, 2010, unless otherwise noted.

    Effective Date Note: At 75 FR 75376, December 3, 2010, Subpart B was 
added to Part 1010, effective January 3, 2011.



Sec. 1010.201  Purpose and scope.

    (a) This subpart sets forth criteria for the types of communications 
on scientific or technological matters permitted under 18 U.S.C. 
207(j)(5) by defining the term ``scientific or technological 
information.'' This subpart also establishes the procedures for 
receiving and approving requests from former employees of the executive 
branch to make such communications to DOE.
    (b) This subpart applies to any former employee of the executive 
branch subject to the post-employment conflict of interest restrictions 
in 18 U.S.C. 207(a), (c), and (d), who wishes to communicate with DOE 
under the exemption in 18 U.S.C. 207(j)(5) for the purpose of furnishing 
scientific or technological information to DOE offices or officials.
    (c) This subpart does not apply to a former DOE employee's testimony 
as an expert in an adversarial proceeding in which the United States is 
a party or has a direct and substantial interest.



Sec. 1010.202  Definitions.

    For purposes of this subpart:
    (a) Agency designee means an individual serving in a position in DOE 
requiring appointment by the President of the United States with the 
advice and consent of the Senate.
    (b) Authorized communication means any transmission of scientific or 
technological information to any DOE office or official that is approved 
by DOE under Sec. 1010.203 of this subpart.
    (c) DOE means the U.S. Department of Energy.
    (d) Scientific or technological information means: Information of a 
scientific or technological character, such as technical or engineering 
information relating to the natural sciences. The exception does not 
extend to information associated with a nontechnical discipline such as 
law, economics, or political science.
    (e) Incidental references or remarks. Provided the former employee's 
communication primarily conveys information of a scientific or 
technological character, the entirety of the communication will be 
deemed made solely for the purpose of furnishing such information 
notwithstanding an incidental reference or remark:
    (1) Unrelated to the matter to which the post-employment restriction 
applies;
    (2) Concerning feasibility, risk, cost, speed of implementation, or 
other considerations when necessary to appreciate the practical 
significance of the basic scientific or technological information 
provided; or
    (3) Intended to facilitate the furnishing of scientific or 
technological information, such as those references or remarks necessary 
to determine the kind and form of information required or the adequacy 
of information already supplied.



Sec. 1010.203  Procedures for review and approval of requests.

    (a) Any former employee of the executive branch subject to the 
constraints of the post-employment restrictions of 18 U.S.C. 207(a), 
(c), and (d) who wishes to communicate scientific or technological 
information to DOE must contact the DOE office with which the former 
employee wishes to communicate and request authorization to make such 
communication. This request must be in writing and address, in detail, 
information regarding each of the factors set forth in paragraphs

[[Page 802]]

(c)(1) through (c)(6) and (c)(8) of this section.
    (b) In consultation with the Designated Agency Ethics Official 
(DAEO), the agency designee in the office with cognizance over the 
matter must advise the former employee in writing whether the proposed 
communication is an authorized communication. This authority cannot be 
delegated, except to another individual serving in a position in DOE 
requiring appointment by the President of the United States with the 
advice and consent of the Senate.
    (c) In deciding whether a proposed communication is an authorized 
communication, the agency designee receiving the request and the DAEO 
must consider the following factors:
    (1) Whether the former employee has relevant scientific or technical 
qualifications;
    (2) Whether the former employee has qualifications that are 
otherwise unavailable to both the former employee's current employer and 
DOE;
    (3) The nature of the scientific or technological information to be 
conveyed;
    (4) The former employee's position prior to termination;
    (5) The extent of the former employee's involvement in the matter at 
issue during his or her employment, including:
    (i) The former employee's involvement in the same particular matter 
involving specific parties;
    (ii) The time elapsed since the former employee's participation in 
such matter; and
    (iii) The offices within the Federal department or agency involved 
in the matter both during the former employee's period of employment in 
the executive branch and at the time the request is being made;
    (6) The existence of pending or anticipated matters before the 
Federal government from which the former employee or his or her current 
employer may financially benefit, including contract modifications, 
grant applications, and proposals; and
    (7) Whether DOE's interests would be served by allowing the proposed 
communication; and
    (8) Any other relevant information.



PART 1013_PROGRAM FRAUD CIVIL REMEDIES AND PROCEDURES--Table of Contents



Sec.
1013.1 Basis and purpose.
1013.2 Definitions.
1013.3 Basis for civil penalties and assessments.
1013.4 Investigation.
1013.5 Review by the reviewing official.
1013.6 Prerequisites for issuing a complaint.
1013.7 Complaint.
1013.8 Service of complaint.
1013.9 Answer.
1013.10 Default upon failure to file an answer.
1013.11 Referral of complaint and answer to the ALJ.
1013.12 Notice of hearing.
1013.13 Parties to the hearing.
1013.14 Separation of functions.
1013.15 Ex parte contacts.
1013.16 Disqualification of reviewing official or ALJ.
1013.17 Rights of parties.
1013.18 Authority of the ALJ.
1013.19 Prehearing conferences.
1013.20 Disclosure of documents.
1013.21 Discovery.
1013.22 Exchange of witness lists, statements and exhibits.
1013.23 Subpoenas for attendance at hearing.
1013.24 Protective order.
1013.25 Witness fees.
1013.26 Form, filing and service of papers.
1013.27 Computation of time.
1013.28 Motions.
1013.29 Sanctions.
1013.30 The hearing and burden of proof.
1013.31 Determining the amount of penalties and assessments.
1013.32 Location of hearing.
1013.33 Witnesses.
1013.34 Evidence.
1013.35 The record.
1013.36 Post-hearing briefs.
1013.37 Initial decision.
1013.38 Reconsideration of initial decision.
1013.39 Appeal to authority head.
1013.40 Stays ordered by the Department of Justice.
1013.41 Stay pending appeal.
1013.42 Judicial review.
1013.43 Collection of civil penalties and assessments.
1013.44 Right to administrative offset.
1013.45 Deposit in Treasury of United States.
1013.46 Compromise or settlement.
1013.47 Limitations.

    Authority: 31 U.S.C. 3801-3812; 28 U.S.C. 2461 note.

    Source: 53 FR 44385, Nov. 3, 1988, unless otherwise noted.

[[Page 803]]



Sec. 1013.1  Basis and purpose.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act 
of 1986, Pub. L. 99-509, sections 6101-6104, 100 Stat. 1874 (October 21, 
1986), codified at 31 U.S.C. 3801-3812. 31 U.S.C. 3809 of the statute 
requires each authority head to promulgate regulations necessary to 
implement the provisions of the statute.
    (b) Purpose. This part (1) establishes administrative procedures for 
imposing civil penalties and assessments against persons who make, 
submit, or present, or cause to be made, submitted, or presented, false, 
fictitious, or fraudulent claims or written statements to authorities or 
to their agents, and (2) specifies the hearing and appeal rights of 
persons subject to allegations of liability for such penalties and 
assessments.



Sec. 1013.2  Definitions.

    ALJ means an Admininstrative Law Judge in the authority appointed 
pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 
U.S.C. 3344.
    Authority means the Department of Energy.
    Authority head means the Secretary or the Under Secretary of the 
Department of Energy.
    Benefit means, in the context of ``statement,'' anything of value, 
including but not limited to any advantage, preference, privilege, 
license, permit, favorable decision, ruling, status, or loan guarantee.
    Claim means any request, demand, or submission--
    (a) Made to the authority for property, services, or money 
(including money representing grants, loans, insurance, or benefits);
    (b) Made to a recipient of property, services, or money from the 
authority or to a party to a contract with the authority--
    (1) For property or services if the United States--
    (i) Provided such property or services;
    (ii) Provided any portion of the funds for the purchase of such 
property or services; or
    (iii) Will reimburse such recipient or party for the purchase of 
such property or services; or
    (2) For the payment of money (including money representing grants, 
loans, insurance, or benefits) if the United States--
    (i) Provided any portion of the money requested or demanded; or
    (ii) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (c) Made to the authority which has the effect of decreasing an 
obligation to pay or account for property, services, or money.
    Complaint means the administrative complaint served by the reviewing 
official on the defendant under Sec. 1013.7 of this part.
    Defendant means any person alleged in a complaint under Sec. 1013.7 
of this part to be liable for a civil penalty or assessment under Sec. 
1013.3 of this part.
    Department means the Department of Energy.
    Government means the United States Government.
    Individual means a natural person.
    Initial decision means the written decision of the ALJ required by 
Sec. 1013.10 or Sec. 1013.37 of this part, and includes a revised 
initial decision issued following a remand or a motion for 
reconsideration.
    Investigating official means the Inspector General of the Department 
of Energy or an officer or employee of the Inspector General designated 
by the Inspector General and serving in a position for which the rate of 
basic pay is not less than the minimum rate of basic pay for grade GS-16 
under the General Schedule.
    Knows or has reason to know, means that a person, with respect to a 
claim or statement--
    (a) Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    (b) Acts in deliberate ignorance of the truth or falsity of the 
claim or statement; or
    (c) Acts in reckless disregard of the truth or falsity of the claim 
or statement.
    Makes, wherever it appears, shall include the terms presents, 
submits, and causes to be made, presented, or submitted. As the context 
requires, making or made, shall likewise include the corresponding forms 
of such terms.

[[Page 804]]

    Person means any individual, partnership, corporation, association, 
or private organization, and includes the plural of that term.
    Representative means an attorney, who is a member in good standing 
of the bar of any State, Territory, or possession of the United States 
or of the District of Columbia or the Commonwealth of Puerto Rico, and 
designated by a party in writing.
    Reviewing official means the General Counsel of the Department or 
his designee who is--
    (a) Not subject to supervision by, or required to report to, the 
investigating official;
    (b) Not employed in the organizational unit of the authority in 
which the investigating official is employed; and
    (c) Serving in a position for which the rate of basic pay is not 
less than the minimum rate of basic pay for grade GS-16 under the 
General Schedule.
    Statement means any representation, certification, affirmation, 
document, record, or accounting or bookkeeping entry made--
    (a) With respect to a claim or to obtain the approval or payment of 
a claim (including relating to eligibility to make a claim); or
    (b) With respect to (including relating to eligibility for)--
    (1) A contract with, or a bid or proposal for a contract with; or
    (2) A grant, loan, or benefit from, the authority, or any State, 
political subdivision of a State, or other party, if the United States 
Government provides any poztion of the money or property under such 
contract or for such grant, loan, or benefit, or if the Government will 
reimburse such State, political subdivision, or party for any portion of 
the money or property under such contract or for such grant, loan, or 
benefit.



Sec. 1013.3  Basis for civil penalties and assessments.

    (a) Claims. (1) Except as provided in paragraph (c) of this section, 
any person who makes a claim that the person knows or has reason to 
know--
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written statement which asserts 
a material fact which is false, fictitious, or fraudulent;
    (iii) Includes or is supported by any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed, shall be subject, in addition to 
any other remedy that may be prescribed by law, to a civil penalty of 
not more than $8,000 for each such claim.
    (2) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, or money constitutes a separate claim.
    (3) A claim shall be considered made to the authority, recipient, or 
party when such claim is actually made to an agent, fiscal intermediary, 
or other entity, including any State or political subdivision thereof, 
acting for or on behalf of such authority, recipient, or party.
    (4) Each claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (5) If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section shall also be subject to 
an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of this section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.
    (b) Statements. (1) Except as provided in paragraph (c) of this 
section, any person who makes a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that

[[Page 805]]

the person making the statement has a duty to include in such statement, 
and
    (ii) Contains or is accompanied by an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement, shall be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than $8,000 for each 
such statement.
    (2) Each written representation, certification, or affirmation 
constitutes a separate statement.
    (3) A statement shall be considered made to the authority when such 
statement is actually made to an agent, fiscal intermediary, or other 
entity, including any State or political subdivision thereof, acting for 
or on behalf of such authority.
    (c) Application for certain benefits. (1) In the case of any claim 
or statement made by any individual relating to any of the benefits 
listed in paragraph (c)(2) of this section received by such individual, 
such individual may be held liable for penalties and assessments under 
this section only if such claim or statement is made by such individual 
in making application for such benefits with respect to such 
individual's eligibility to receive such benefits.
    (2) For purposes of paragraph (c) of this section, the term 
``benefits'' means benefits under part A of the Energy Conservation in 
Existing Buildings Act of 1976, which are intended for the personal use 
of the individual who receives the benefits or for a member of the 
individual's family.
    (d) No proof of specific intent to defraud is required to establish 
liability under this section.
    (e) In any case in which it is determined that more than one person 
is liable for making a claim or statement under this section, each such 
person may be held liable for a civil penalty under this section.
    (f) In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provided services), 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.

[53 FR 44385, Nov. 3, 1988, as amended at 62 FR 46184, Sept. 2, 1997; 74 
FR 66033, Dec. 14, 2009]



Sec. 1013.4  Investigation.

    (a) If an investigating official concludes that a subpoena pursuant 
to the authority conferred by 31 U.S.C. 3804(a) is warranted--
    (1) The subpoena so issued shall notify the person to whom it is 
addressed of the authority under which the subpoena is issued and shall 
identify the records or documents sought;
    (2) The investigating official may designate a person to act on his 
or her behalf to receive the documents sought; and
    (3) The person receiving such subpoena shall be required to tender 
to the investigating official or the person designated to receive the 
documents a certification that the documents sought have been produced, 
or that such documents are not available and the reasons therefor, or 
that such documents, suitably identified, have been withheld based upon 
the assertion of an identified privilege.
    (b) If the investigating official concludes that an action under the 
Program Fraud Civil Remedies Act may be warranted, the investigating 
official shall submit a report containing the findings and conclusions 
of such investigation to the reviewing official.
    (c) Nothing in this section shall preclude or limit an investigating 
official's discretion to refer allegations directly to the Department of 
Justice for suit under the False Claims Act or other civil relief, or to 
preclude or limit such official's discretion to defer or postpone a 
report or referral to the reviewing official to avoid interference with 
a criminal investigation or prosecution.
    (d) Nothing in this section modifies any responsibility of an 
investigating official to report violations of criminal law to the 
Attorney General.



Sec. 1013.5  Review by the reviewing official.

    (a) If, based on the report of the investigating official under 
Sec. 1013.4(b) of

[[Page 806]]

this part, the reviewing official determines that there is adequate 
evidence to believe that a person is liable under Sec. 1013.3 of this 
part, the reviewing official shall transmit to the Attorney General a 
written notice of the reviewing official's intention to issue a 
complaint under Sec. 1013.7 of this part.
    (b) Such notice shall include--
    (1) A statement of the reviewing official's reasons for issuing a 
complaint;
    (2) A statement specifying the evidence that supports the 
allegations of liability;
    (3) A description of the claims or statements upon which the 
allegations of liability are based;
    (4) An estimate of the amount of money or the value of property, 
services, or other benefits requested or demanded in violation of Sec. 
1013.3 of this part;
    (5) A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    (6) A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.



Sec. 1013.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec. 1013.7 
of this part only if--
    (1) The Department of Justice approves the issuance of a complaint 
in a written statement described in 31 U.S.C. 3803(b)(1), and
    (2) In the case of allegations of liability under Sec. 1013.3(a) of 
this part with respect to a claim, the reviewing official determines 
that, with respect to such claim or a group of related claims submitted 
at the same time such claim is submitted (as defined in paragraph (b) of 
this section), the amount of money or the value of property or services 
demanded or requested in violation of Sec. 1013.3(a) of this part does 
not exceed $150,000.
    (b) For the purposes of this section, a related group of claims 
submitted at the same time shall include only those claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand, or 
submission.
    (c) Nothing in this section shall be construed to limit the 
reviewing official's authority to join in a single complaint against a 
person claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money, or the value of property or services, 
demanded or requested.



Sec. 1013.7  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the 
reviewing official may serve a complaint on the defendant, as provided 
in Sec. 1013.8 of this part.
    (b) The complaint shall state--
    (1) The allegations of liability against the defendant, including 
the statutory basis for liability, an identification of the claims or 
statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such claims or statements;
    (2) The maximum amount of penalties and assessments for which the 
defendant may be held liable;
    (3) Instructions for filing an answer to request a hearing, 
including a specific statement of the defendant's right to request a 
hearing by filing an answer and to be represented by a representative; 
and
    (4) That failure to file an answer within 30 days of service of the 
complaint will result in the imposition of the maximum amount of 
penalties and assessments without right to appeal, as provided in Sec. 
1013.10 of this part.
    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the defendant with a copy of these regulations.



Sec. 1013.8  Service of complaint.

    (a) Service of a complaint must be made by certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure. Service is complete upon receipt.
    (b) Proof of service, stating the name and address of the person on 
whom the complaint was served, and the manner and date of service, may 
be made by--

[[Page 807]]

    (1) Affidavit of the individual serving the complaint by delivery;
    (2) A United States Postal Service return receipt card acknowledging 
receipt; or
    (3) Written acknowledgment of receipt by the defendant or his or her 
representative.



Sec. 1013.9  Answer.

    (a) The defendant may request a hearing by filing an answer with the 
reviewing official within 30 days of service of the complaint. An answer 
shall be deemed to be a request for hearing.
    (b) In the answer, the defendant--
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense on which the defendant intends to rely;
    (3) May state any reasons why the defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Shall state the name, address, and telephone number of the 
person authorized by the defendant to act as defendant's representative, 
if any.
    (c) If the defendant is unable to file an answer meeting the 
requirements of paragraph (b) of this section within the time provided, 
the defendant may, before the expiration of 30 days from service of the 
complaint, file with the reviewing official a general answer denying 
liability and requesting a hearing, and a request for an extension of 
time within which to file an answer meeting the requirements of 
paragraph (b) of this section. The reviewing offical shall file promptly 
with the ALJ the complaint, the general answer denying liability, and 
the request for an extension of time as provided in Sec. 1013.11 of 
this part. For good cause shown, the ALJ may grant the defendant up to 
30 additional days within which to file an answer meeting the 
requirements of paragraph (b) of this section.



Sec. 1013.10  Default upon failure to file an answer.

    (a) If the defendant does not file an answer within the time 
prescribed in Sec. 1013.9(a) of this part, the reviewing official may 
refer the complaint to the ALJ.
    (b) Upon the referral of the complaint, the ALJ shall promptly serve 
on defendant in the manner prescribed in Sec. 1013.8 of this part, a 
notice that an initial decision shall be issued under this section.
    (c) The ALJ shall assume the facts alleged in the complaint to be 
true, and, if such facts establish liability under Sec. 1013.3 of this 
part, the ALJ shall issue an initial decision imposing the maximum 
amount of penalties and assessments allowed under the statute.
    (d) Except as otherwise provided in this section, by failing to file 
a timely answer, the defendant waives any right to further review of the 
penalties and assessments imposed under paragraph (c) of this section, 
and the initial decision shall become final and binding upon the parties 
30 days after it is issued.
    (e) If, before such an initial decision becomes final, the defendant 
files a motion with the ALJ seeking to reopen on the grounds that 
extraordinary circumstances prevented the defendant from filing an 
answer, the initial decision shall be stayed pending the ALJ's decision 
on the motion.
    (f) If, on such motion, the defendant can demonstrate extraordinary 
circumstances excusing the failure to file a timely answer, the ALJ 
shall withdraw the initial decision in paragraph (c) of this section, if 
such a decision has been issued, and shall grant the defendant an 
opportunity to answer the complaint.
    (g) A decision of the ALJ denying a defendant's motion under 
paragraph (e) of this section is not subject to reconsideration under 
Sec. 1013.38 of this part.
    (h) The defendant may appeal to the authority head the decision 
denying a motion to reopen by filing a notice of appeal with the 
authority head within 15 days after the ALJ denies the motion. The 
timely filing of a notice of appeal shall stay the initial decision 
until the authority head decides the issue.
    (i) If the defendant files a timely notice of appeal with the 
authority head, the ALJ shall forward the record of the proceeding to 
the authority head.

[[Page 808]]

    (j) The authority head shall decide expeditiously whether 
extraordinary circumstances excuse the defendant's failure to file a 
timely answer based solely on the record before the ALJ.
    (k) If the authority head decides that extraordinary circumstances 
excused the defendant's failure to file a timely answer, the authority 
head shall remand the case to the ALJ with instructions to grant the 
defendant an opportunity to answer.
    (l) If the authority head decides that the defendant's failure to 
file a timely answer is not excused, the authority head shall reinstate 
the initial decision of the ALJ, which shall become final and binding 
upon the parties 30 days after the authority head issues such decision.



Sec. 1013.11  Referral of complaint and answer to the ALJ.

    Upon receipt of an answer, the reviewing official shall file the 
complaint and answer with the ALJ.



Sec. 1013.12  Notice of hearing.

    (a) When the ALJ receives the complaint and answer, the ALJ shall 
promptly serve a notice of hearing upon the defendant in the manner 
prescribed by Sec. 1013.8 of this part. At the same time, the ALJ shall 
send a copy of such notice to the representative for the Government.
    (b) Such notice shall include--
    (1) The tentative time, date, and place, and the nature of the 
hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the representative of 
the Government and of the defendant, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec. 1013.13  Parties to the hearing.

    (a) The parties to the hearing shall be the defendant and the 
authority.
    (b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the 
False Claims Act may participate in these proceedings to the extent 
authorized by the provisions of that Act.



Sec. 1013.14  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of the authority who takes part in investigating, 
preparing, or presenting a particular case may not, in such case or a 
factually related case--
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the initial decision or the review of 
the initial decision by the authority head, except as a witness or a 
representative in public proceedings; or
    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) The ALJ shall not be responsible to, or subject to the 
supervision or direction of, the investigating official or the reviewing 
official.
    (c) Except as provided in paragraph (a) of this section, the 
representative for the Government may be employed anywhere in the 
authority, including in the offices of either the investigating official 
or the reviewing official.



Sec. 1013.15  Ex parte contacts.

    No party or person (except employees of the ALJ's office) shall 
communicate in any way with the ALJ on any matter at issue in a case, 
unless on notice and opportunity for all parties to participate. This 
provision does not prohibit a person or party from inquiring about the 
status of a case or asking routine questions concerning administrative 
functions or procedures.



Sec. 1013.16  Disqualification of reviewing official or ALJ.

    (a) A reviewing official or ALJ in a particular case may disqualify 
himself or herself at any time.
    (b) A party may file with the ALJ a motion for disqualification of a 
reviewing official or an ALJ. Such motion shall be accompanied by an 
affidavit alleging personal bias or other reason for disqualification.
    (c) Such motion and affidavit shall be filed promptly upon the 
party's discovery of reasons requiring disqualification, or such 
objections shall be deemed waived.

[[Page 809]]

    (d) Such affidavit shall state specific facts that support the 
party's belief that personal basis or other reason for disqualification 
exists and the time and circumstances of the party's discovery of such 
facts. It shall be accompanied by a certificate of the representative of 
record that it is made in good faith.
    (e) Upon the filing of such a motion and affidavit, the ALJ shall 
proceed no further in the case until he or she resolves the matter of 
disqualification in accordance with paragraph (f) of this section.
    (f)(1) If the ALJ determines that a reviewing official is 
disqualified, the ALJ shall dismiss the complaint without prejudice.
    (2) If the ALJ disqualifies himself or herself, the case shall be 
reassigned promptly to another ALJ.
    (3) If the ALJ denies a motion to disqualify, the authority head may 
determine the matter only as part of his or her review or the initial 
decision upon appeal, if any.



Sec. 1013.17  Rights of parties.

    Except as otherwise limited by this part, all parties may--
    (a) Be accompanied, represented, and advised by a representative;
    (b) Participate in any conference held by the ALJ;
    (c) Conduct discovery;
    (d) Agree to stipulations of fact or law, which shall be made part 
of the record;
    (e) Present evidence relevant to the issues at the hearing;
    (f) Present and cross-examine witnesses;
    (g) Present oral arguments at the hearing as permitted by the ALJ; 
and
    (h) Submit written briefs and proposed findings of fact and 
conclusions of law.



Sec. 1013.18  Authority of the ALJ.

    (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceeding is made.
    (b) The ALJ has the authority to--
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses and the 
production of documents at depositions or at hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of 
representatives and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party, take official notice of facts; decide 
cases, in whole or in part, by summary judgment where there is no 
disputed issue of material fact;
    (12) Conduct any conference, argument, or hearing on motions in 
person or by telephone; and
    (13) Exercise such other authority as is necessary to carry out the 
responsibilities of the ALJ under this part.
    (c) The ALJ does not have the authority to find Federal statutes or 
regulations invalid.



Sec. 1013.19  Prehearing conferences.

    (a) The ALJ may schedule prehearing conferences as appropriate.
    (b) Upon the motion of any party, the ALJ shall schedule at least 
one prehearing conference at a reasonable time in advance of the 
hearing.
    (c) The ALJ may use prehearing conferences to discuss the following:
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;
    (3) Stipulations and admissions of fact or as to the contents and 
authenticity of documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;

[[Page 810]]

    (5) Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objection of 
other parties) and written argument;
    (6) Limitation of the number of witnesses);
    (7) Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    (8) Discovery;
    (9) The time, date, and place for the hearing; and
    (10) Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    (d) The ALJ may issue an order containing all matters agreed upon by 
the parties or ordered by the ALJ at a prehearing conference.



Sec. 1013.20  Disclosure of documents.

    (a) Upon written request to the reviewing official, the defendant 
may review any relevant and material documents, transcripts, records, 
and other materials that relate to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec. 1013.4(b) are based, unless such 
documents are subject to a privilege under Federal law. Upon payment of 
fees for duplication, the defendant may obtain copies of such documents.
    (b) Upon written request to the reviewing official, the defendant 
also may obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (c) The notice sent to the Attorney General from the reviewing 
official as described in Sec. 1013.5 of the part is not discoverable 
under any circumstances.
    (d) The defendant may file a motion to compel disclosure of the 
documents subject to the provisions of this section. Such a motion may 
only be filed with the ALJ following the filing of an answer pursuant to 
Sec. 1013.9 of this part.



Sec. 1013.21  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (2) Requests for admissions of the authenticity of any relevant 
document or of the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) For the purpose of this section and Sec. Sec. 1013.22 and 
1013.23 of this part, the term ``documents'' includes information, 
documents, reports, answers, records, accounts, papers, and other data 
and documentary evidence. Nothing contained herein shall be interpreted 
to require the creation of a document.
    (c) Unless mutually agreed to by the parties, discovery is available 
only as ordered by the ALJ. The ALJ shall regulate the timing of 
discovery.
    (d) Motions for discovery. (1) A party seeking discovery may file a 
motion with the ALJ. Such a motion shall be accompanied by a copy of the 
requested discovery, or in the case of depositions, a summary of the 
scope of the proposed deposition.
    (2) Within ten days of service, a party may file an opposition to 
the motion and/or a motion for protective order as provided in Sec. 
1013.24 of this part.
    (3) The ALJ may grant a motion for discovery only if he or she finds 
that the discovery sought--
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    (5) The ALJ may grant discovery subject to a protective order under 
Sec. 1013.24 of this part.
    (e) Depositions. (1) If a motion for deposition is granted, the ALJ 
shall issue a subpoena for the deponent, which may require the deponent 
to produce documents. The subpoena shall specify the time, date, and 
place at which the deposition will be held.

[[Page 811]]

    (2) The party seeking to depose shall serve the subpoena in the 
manner prescribed in Sec. 1013.8 of this part.
    (3) The deponent may file with the ALJ a motion to quash the 
subpoena or a motion for a protective order within ten days of service.
    (4) The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition, which it shall make available to 
all other parties for inspection and copying.
    (f) Each party shall bear its own costs of discovery.



Sec. 1013.22  Exchange of witness lists, statements and exhibits.

    (a) At least 15 days before the hearing or at such other time as may 
be ordered by the ALJ, the parties shall exchange witness lists, copies 
of prior statements of proposed witnesses, and copies of proposed 
hearing exhibits, including copies of any written statements that the 
party intends to offer in lieu of live testimony in accordance with 
Sec. 1013.33(b) of this part. At the time the above documents are 
exchanged, any party that intends to rely on the transcript of 
deposition testimony in lieu of live testimony at the hearing, if 
permitted by the ALJ, shall provide each party with a copy of the 
specific pages of the transcript it intends to introduce into evidence.
    (b) If a party objects, the ALJ shall not admit into evidence the 
testimony of any witness whose name does not appear on the witness list 
or any exhibit not provided to the opposing party as provided above 
unless the ALJ finds good cause for the failure or that there is no 
prejudice to the objecting party.
    (c) Unless another party objects within the time set by the ALJ, 
documents exchanged in accordance with paragraph (a) of this section 
shall be deemed to be authentic for the purpose of admissibility at the 
hearing.



Sec. 1013.23  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the ALJ issue a subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request therefor 
not less than 15 days before the date fixed for the hearing unless 
otherwise allowed by the ALJ for good cause shown. Such request shall 
specify any documents to be produced and shall designate the witnesses 
and describe the address and location thereof with sufficient 
particularity to permit such witnesses to be found.
    (d) The subpoena shall specify the time, date, and place at which 
the witness is to appear and any documents the witness is to produce.
    (e) The party seeking the subpoena shall serve it in the manner 
prescribed in Sec. 1013.8 of this part. A subpoena on a party or upon 
an individual under the control of a party may be served by first class 
mail.
    (f) A party or the individual to whom the subpoena is directed may 
file with the ALJ a motion to quash the subpoena within ten days after 
service or on or before the time specified in the subpoena for 
compliance if it is less than ten days after service.



Sec. 1013.24  Protective order.

    (a) A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    (b) In issuing a protective order, the ALJ may make any order which 
justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the ALJ;

[[Page 812]]

    (6) That the contents of discovery or evidence be sealed;
    (7) That a deposition after being sealed be opened only by order of 
the ALJ;
    (8) That a trade secret or other confidential research, development, 
commercial information, or facts pertaining to any criminal 
investigation, proceeding, or other administrative investigation not be 
disclosed or be disclosed only in a designated way; or
    (9) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
ALJ.



Sec. 1013.25  Witness fees.

    The party requesting a subpoena shall pay the cost of the fees and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in United States District Court. A check 
for witness fees and mileage shall accompany the subpoena when served, 
except that when a subpoena is issued on behalf of the authority, a 
check for witness fees and mileage need not accompany the subpoena.



Sec. 1013.26  Form, filing and service of papers.

    (a) Form. (1) Documents filed with the ALJ shall include an original 
and two copies.
    (2) Every pleading and paper filed in the proceeding shall contain a 
caption setting forth the title of the action, the case number assigned 
by the ALJ, and a designation of the paper (e.g., motion to quash 
subpoena).
    (3) Every pleading and paper shall be signed by, and shall contain 
the address and telephone number of the party or the person on whose 
behalf the paper was filed, or his or her representative.
    (4) Papers are considered filed when they are mailed. Date of 
mailing may be established by a certificate from the party or its 
representative or by proof that the document was sent by certified or 
registered mail.
    (b) Service. A party filing a document with the ALJ shall, at the 
time of filing, serve a copy of such document on every other party. 
Service upon any party of any document other than those required to be 
served as prescribed in Sec. 1013.8 of this part shall be made by 
delivering a copy or by placing a copy of the document in the United 
States mail, postage prepaid, and addressed to the party's last known 
address. When a party is represented by a representative, service shall 
be made upon such representative in lieu of the actual party.
    (c) Proof of service. A certificate by the individual serving the 
document by personal delivery or by mail, setting forth the manner of 
service, shall be proof of service.



Sec. 1013.27  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, 
event, or default, and includes the last day of the period, unless it is 
a Saturday, Sunday, or legal holiday observed by the Federal government, 
in which event it includes the next business day.
    (b) When the period of time allowed is less than seven days, 
intermediate Saturday, Sundays, and legal holidays observed by the 
Federal government shall be excluded from the computation.
    (c) Where a document has been served or issued by placing it in the 
mail, an additional five days will be added to the time permitted for 
any response.



Sec. 1013.28  Motions.

    (a) Any application to the ALJ for an order or ruling shall be by 
motion. Motions shall state the relief sought, the authority relied 
upon, and the facts alleged, and shall be filed with the ALJ and served 
on all other parties.
    (b) Except for motions made during a prehearing conference or at the 
hearing, all motions shall be in writing. The ALJ may require that oral 
motions be reduced to writing.
    (c) Within 15 days after a written motion is served, or such other 
time as may be fixed by the ALJ, any party may file a response to such 
motion.
    (d) The ALJ may not grant a written motion before the time for 
filing responses thereto has expired, except upon consent of the parties 
or following a hearing on the motion, but

[[Page 813]]

may overrule or deny such motion without awaiting a response.
    (e) The ALJ shall make a reasonable effort to dispose of all 
outstanding motions prior to the beginning of the hearing.



Sec. 1013.29  Sanctions.

    (a) The ALJ may sanction a person, including any party or 
representative, for--
    (1) Failing to comply with an order, rule, or procedure governing 
the proceeding;
    (2) Failing to prosecute or defend an action; or
    (3) Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the hearing.
    (b) Any such sanction, including but not limited to those listed in 
paragraphs (c), (d), and (e) of this section, shall reasonably relate to 
the severity and nature of the failure or misconduct.
    (c) When a party fails to comply with an order, including an order 
for taking a deposition, the production of evidence within the party's 
control, or a request for admission, the ALJ may--
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;
    (2) In the case of requests for admission, deem each matter of which 
an admission is requested to be admitted;
    (3) Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon, testimony 
relating to the information sought; and
    (4) Strike any part of the pleadings or other submissions of the 
party failing to comply with such request.
    (d) If a party fails to prosecute or defend an action under this 
part commenced by service of a notice of hearing, the ALJ may dismiss 
the action or may issue an initial decision imposing penalties and 
assessments.
    (e) The ALJ may refuse to consider any motion, request, response, 
brief or other document which is not filed in a timely fashion.



Sec. 1013.30  The hearing and burden of proof.

    (a) The ALJ shall conduct a hearing on the record in order to 
determine whether the defendant is liable for a civil penalty or 
assessment under Sec. 1013.3 of this part, and, if so, the appropriate 
amount of any such civil penalty or assessment considering any 
aggravating or mitigating factors.
    (b) The authority shall prove defendant's liability and any 
aggravating factors by a preponderance of the evidence.
    (c) The defendant shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.
    (d) The hearing shall be open to the public unless otherwise ordered 
by the ALJ for good cause shown.



Sec. 1013.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the authority head, upon appeal, should 
evaluate any circumstances that mitigate or aggravate the violation and 
should articulate in their opinions the reasons that support the 
penalties and assessments they impose. Because of the intangible costs 
of fraud, the expense of investigating such conduct, and the need to 
deter others who might be similarly tempted, ordinarily double damages 
and a significant civil penalty should be imposed.
    (b) Although not exhaustive, the following factors are among those 
that may influence the ALJ and the authority head in determining the 
amount of penalties and assessments to impose with respect to the 
misconduct (i.e., the false, fictitious, or fraudulent claims or 
statement) charged in the complaint:
    (1) The number of false, fictitious, or fraudulent claims or 
statements;
    (2) The time period over which such claims or statements were made;
    (3) The degree of the defendant's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
benefit falsely claimed;
    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the costs of 
investigation;

[[Page 814]]

    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon national 
defense, public health or safety, or public confidence in the management 
of Government programs and operations, including particularly the impact 
on the intended beneficiaries of such programs;
    (8) Whether the defendant has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the defendant attempted to conceal the misconduct;
    (10) The degree to which the defendant has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees or agents is imputed to the 
defendant, the extent to which the defendant's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the defendant cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the defendant assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the defendant's sophistication with respect to it, including the extent 
of the defendant's prior participation in the program or in similar 
transactions;
    (15) Whether the defendant has been found, in any criminal, civil, 
or administrative proceeding to have engaged in similar misconduct or to 
have dealt dishonestly with the Government of the United States or of a 
State, directly or indirectly; and
    (16) The need to deter the defendant and others from engaging in the 
same or similar misconduct.
    (c) Nothing in this section shall be construed to limit the ALJ or 
the authority head from considering any other factors that in any given 
case may mitigate or aggravate the offense for which penalties and 
assessments are imposed.



Sec. 1013.32  Location of hearing.

    (a) The hearing may be held--
    (1) In any judicial district of the United States in which the 
defendant resides or transacts business;
    (2) In any judicial district of the United States in which the claim 
or statement in issue was made; or
    (3) In such other place as may be agreed upon by the defendant and 
the ALJ.
    (b) Each party shall have the opportunity to present argument with 
respect to the location of the hearing.
    (c) The hearing shall be held at the place and at the time ordered 
by the ALJ.



Sec. 1013.33  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing shall be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a written statement or deposition. Any such written statement 
must be provided to all other parties along with the last known address 
of such witness, in a manner which allows sufficient time for other 
parties to subpoena such witness for cross-examination at the hearing. 
Prior written statements of witnesses proposed to testify at the hearing 
and deposition transcripts shall be exchanged as provided in Sec. 
1013.22(a) of this part.
    (c) The ALJ shall exercise reasonable control over the mode and 
order of interrogating witnesses and presenting evidence so as to (1) 
make the interrogation and presentation effective for the ascertainment 
of the truth, (2) avoid needless consumption of time, and (3) protect 
witnesses from harassment or undue embarrassment.
    (d) The ALJ shall permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.
    (e) At the discretion of the ALJ, a witness may be cross-examined on 
matters relevant to the proceeding without regard to the scope of his or 
her direct examination. To the extent permitted by the ALJ, cross-
examination on matters outside the scope of direct examination shall be 
conducted in the manner of direct examination and may proceed by leading 
questions only if the witness is a hostile witness, an adverse party, or 
a witness identified with an adverse party.

[[Page 815]]

    (f) Upon motion of any party, the ALJ shall order witnesses excluded 
so that they cannot hear the testimony of other witnesses. This rule 
does not authorize exclusion of--
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of the party appearing for the entity pro se or designated by 
the party's representative; or
    (3) An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
Government engaged in assisting the representative for the Government.



Sec. 1013.34  Evidence.

    (a) The ALJ shall determine the admissibility of evidence.
    (b) Except as provided in this part, the ALJ shall not be bound by 
the Federal Rules of Evidence. However, the ALJ may apply the Federal 
Rules of Evidence where appropriate, e.g., to exclude unreliable 
evidence.
    (c) The ALJ shall exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is privileged 
under Federal law.
    (f) Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ shall permit the parties to introduce rebuttal witnesses 
and evidence.
    (h) All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the ALJ pursuant to Sec. 1013.24 of this part.



Sec. 1013.35  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the ALJ at a cost not to exceed the 
actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
authority head.
    (c) The record may be inspected and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant 
to Sec. 1013.24 of this part.



Sec. 1013.36  Post-hearing briefs.

    The ALJ may require the parties to file post-hearing briefs. In any 
event, any party may file a post-hearing brief. The ALJ shall fix the 
time for filing such briefs, not to exceed 60 days from the date the 
parties receive the transcript of the hearing or, if applicable, the 
stipulated record. Such briefs may be accompanied by proposed findings 
of fact and conclusions of law. The ALJ may permit the parties to file 
reply briefs.



Sec. 1013.37  Initial decision.

    (a) The ALJ shall issue an initial decision based only on the 
record, which shall contain findings of fact, conclusions of law, and 
the amount of any penalties and assessments imposed.
    (b) The findings of fact shall include a finding on each of the 
following issues:
    (1) Whether the claims or statements identified in the complaint, or 
any portions thereof, violate Sec. 1013.3 of this part;
    (2) If the person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments considering any 
mitigating or aggravating factors that he or she finds in the case, such 
as those described in Sec. 1013.31 of this part.
    (c) The ALJ shall promptly serve the initial decision on all parties 
within 90 days after the time for submission of post-hearing briefs and 
reply briefs (if permitted) has expired. The ALJ shall at the same time 
serve all parties with a statement describing the right of any defendant 
determined to be liable for a civil penalty or assessment to file a 
motion for reconsideration with the ALJ or a notice of appeal with the 
authority head. If the ALJ fails to meet

[[Page 816]]

the deadline contained in this paragraph, he or she shall notify the 
parties of the reason for the delay and shall set a new deadline.
    (d) Unless the initial decision of the ALJ is timely appealed to the 
authority head, or a motion for reconsideration of the initial decision 
is timely filed, the initial decision shall constitute the final 
decision of the authority head and shall be final and binding on the 
parties 30 days after it is issued by the ALJ.



Sec. 1013.38  Reconsideration of initial decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of receipt of the initial decision. If service was made by mail, 
receipt will be presumed to be five days from the date of mailing in the 
absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion shall be accompanied by a supporting brief.
    (c) Responses to such motions shall be allowed only upon request of 
the ALJ.
    (d) No party may file a motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised initial decision.
    (f) If the ALJ denies a motion for reconsideration, the initial 
decision shall constitute the final decision of the authority head and 
shall be final and binding on the parties 30 days after the ALJ denies 
the motion, unless the initial decision is timely appealed to the 
authority head in accordance with Sec. 1013.39.
    (g) If the ALJ issues a revised initial decision, that decision 
shall constitute the final decision of the authority head and shall be 
final and binding on the parties 30 days after it is issued, unless it 
is timely appealed to the authority head in accordance with Sec. 
1013.39 of this part.



Sec. 1013.39  Appeal to authority head.

    (a) Any defendant who has filed a timely answer and who is 
determined in an initial decision to be liable for a civil penalty or 
assessment may appeal such decision to the authority head by filing a 
notice of appeal with the authority head in accordance with this 
section.
    (b)(1) A notice of appeal may be filed at any time within 30 days 
after the ALJ issues an initial decision. However, if any party files a 
motion for reconsideration under Sec. 1013.38 of this part, 
consideration of the appeal shall be stayed automatically pending 
resolution of the motion for reconsideration.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal may be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (3) The authority head may extend the initial 30-day period for an 
additional 30 days if the defendant files with the authority head a 
request for an extension within the initial 30-day period and shows good 
cause.
    (c) If the defendant files a timely notice of appeal with the 
authority head and the time for filing motions for reconsideration under 
Sec. 1013.38 of this part has expired, the ALJ shall forward the record 
of the proceeding to the authority head.
    (d) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (e) The representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (f) There is no right to appear personally before the authority 
head.
    (g) There is no right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the initial decision, the authority head shall not 
consider any objection that was not raised before the ALJ unless a 
demonstration is made of extraordinary circumstances causing the failure 
to raise the objection.
    (i) If any party demonstrates to the satisfaction of the authority 
head that additional evidence not presented at

[[Page 817]]

such hearing is material and that there were reasonable grounds for the 
failure to present such evidence at such hearing, the authority head 
shall remand the matter to the ALJ for consideration of such additional 
evidence.
    (j) The authority head may affirm, reduce, reverse, compromise, 
remand, or settle any penalty or assessment determined by the ALJ in any 
initial decision.
    (k) The authority head shall promptly serve each party to the appeal 
with a copy of the decision of the authority head and a statement 
describing the right of any person determined to be liable for a penalty 
or an assessment to seek judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the authority head 
serves the defendant with a copy of the authority head's decision, a 
determination that a defendant is liable under Sec. 1013.3 of this part 
is final and is not subject to judicial review.



Sec. 1013.40  Stays ordered by the Department of Justice.

    If at any time the Attorney General or an Assistant Attorney General 
designated by the Attorney General transmits to the authority head a 
written finding that continuation of the administrative process 
described in this part with respect to a claim or statement may 
adversely affect any pending or potential criminal or civil action 
related to such claim or statement, the authority head shall stay the 
process immediately. The authority head may order the process resumed 
only upon receipt of the written authorization of the Attorney General.



Sec. 1013.41  Stay pending appeal.

    (a) An initial decision is stayed automatically pending disposition 
of a motion for reconsideration or of an appeal to the authority head.
    (b) No administrative stay is available following a final decision 
of the authority head.



Sec. 1013.42  Judicial review.

    Section 3805 of title 31, United States Code, authorizes judicial 
review by an appropriate United States District Court of a final 
decision of the authority head imposing penalties or assessments under 
this part and specifies the procedures for such review.



Sec. 1013.43  Collection of civil penalties and assessments.

    Sections 3806 and 3808(b) of title 31, United States Code, 
authorizes actions for collection of civil penalties and assessments 
imposed under this part and specify the procedures for such actions.



Sec. 1013.44  Right to administrative offset.

    The amount of any penalty or assessment which has become final, or 
for which a judgment has been entered under Sec. 1013.42 or Sec. 
1013.43 of this part, or any amount agreed upon in a compromise or 
settlement under Sec. 1013.46 of this part, may be collected by 
administrative offset under 31 U.S.C. 3716, except that an 
administrative offset may not be made under this subsection against a 
refund of an overpayment of Federal taxes, then or later owing by the 
United States to the defendant.



Sec. 1013.45  Deposit in Treasury of United States.

    All amounts collected pursuant to this part shall be deposited as 
miscellaneous receipts in the Treasury of the United States, except as 
provided in 31 U.S.C. 3806(g).



Sec. 1013.46  Compromise or settlement.

    (a) Parties may make offers of compromise or settlement at any time.
    (b) The reviewing official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
reviewing official is permitted to issue a complaint and before the date 
on which the ALJ issues an initial decision.
    (c) The authority head has exclusive authority to compromise or 
settle a case under this part at any time after the date on which the 
ALJ issues an initial decision, except during the pendency of any review 
under Sec. 1013.42 of this part or during the pendency of

[[Page 818]]

any action to collect penalties and assessments under Sec. 1013.43 of 
this part.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec. 1013.42 of this part or of any action to recover penalties and 
assessments under 31 U.S.C. 3806.
    (e) The investigating official may recommend settlement terms to the 
reviewing official, the authority head, or the Attorney General, as 
appropriate. The reviewing official may recommend settlement terms to 
the authority head, or the Attorney General, as appropriate.
    (f) Any compromise or settlement must be in writing.



Sec. 1013.47  Limitations.

    (a) The notice of hearing with respect to a claim or statement must 
be served in the manner specified in Sec. 1013.8 of this part within 6 
years after the date on which such claim or statement is made.
    (b) If the defendant fails to file a timely answer, service of 
notice under Sec. 1013.10(b) of this part shall be deemed a notice of a 
hearing for purposes of this section.
    (c) The statute of limitations may be extended by agreement of the 
parties.



PART 1014_ADMINISTRATIVE CLAIMS UNDER FEDERAL TORT CLAIMS ACT--Table of Contents



Sec.
1014.1 Scope of regulations.
1014.2 Administrative claim; when presented; appropriate office.
1014.3 Administrative claim; who may file.
1014.4 Administrative claims; evidence and information to be submitted.
1014.5 Authority to adjust, determine, compromise, and settle.
1014.6 Limitation on authority.
1014.7 Referral to Department of Justice.
1014.8 Investigation and examination.
1014.9 Final denial of claim.
1014.10 Action on approved claims.
1014.11 Penalties.

    Authority: Sec. 1(a), 80 Stat. 306, (28 U.S.C. 2672); 28 CFR part 
14; sec. 644, Pub. L. 95-91, 91 Stat. 599, (42 U.S.C. 7254).

    Source: 45 FR 7768, Feb. 4, 1980, unless otherwise noted.



Sec. 1014.1  Scope of regulations.

    (a) These regulations shall apply only to claims asserted under the 
Federal Tort Claims Act, as amended, accruing on or after January 18, 
1967, for money damages against the United States for injury to, or loss 
of, property or personal injury or death caused by the negligent or 
wrongful act or omission of any employee of the Department of Energy 
(DOE) while acting within the scope of office or employment.
    (b) The terms DOE, Department, and Department of Energy as used in 
this part mean the agency established by the Department of Energy 
Organization Act (Pub. L. 95-91), 42 U.S.C. 7101, et seq., including the 
Federal Energy Regulatory Commission, but do not include any contractor 
of the Department.
    (c) The regulations in this part supplement the Attorney General's 
regulations in part 14 of chapter 1 of title 28 CFR as amended. Those 
regulations, including subsequent amendments thereto, and the 
regulations in this part apply to the consideration by DOE of 
administrative claims under the Federal Tort Claims Act.



Sec. 1014.2  Administrative claim; when presented; appropriate office.

    (a) For purposes of these regulations, a claim shall be deemed to 
have been presented when DOE receives, at a place designated in 
paragraph (b) of this section, an executed Standard Form 95 or other 
written notification of an incident, accompanied by a claim for money 
damages in a definite amount for injury to or loss of property, personal 
injury, or death, that is alleged to have occurred by reason of the 
incident. A claim that should have been presented to DOE but which was 
mistakenly addressed to or filed with another Federal agency, shall be 
deemed to be presented to DOE on the date the claim is received by DOE. 
A claim mistakenly addressed to or filed with DOE shall be transferred 
to the appropriate Federal agency, if ascertainable, or returned to the 
claimant.
    (b) Claims should be mailed in envelopes marked ``Attention Office 
of General Counsel.'' Claims shall be mailed or delivered to the DOE 
installation or office employing the person or persons

[[Page 819]]

whose acts or omissions are alleged to have caused the loss, damage, or 
injury, unless the claimant does not know that address. If the proper 
address is unknown, claims may be mailed or delivered to: The General 
Counsel, U.S. Department of Energy, Washington, DC 20585. Forms may be 
obtained from the same places.
    (c) A claim may be amended by the claimant at any time before final 
DOE action or before the exercise of the claimant's option under 28 
U.S.C. 2675(a). Amendments shall be submitted in writing and signed by 
the claimant or a duly authorized agent or legal representative. If an 
amendment to a pending claim is filed in time, the DOE shall have 6 
months to decide the claim as amended. The claimant's option under 28 
U.S.C. 2675(a) shall not accrue until 6 months after the filing of an 
amendment.



Sec. 1014.3  Administrative claim; who may file.

    (a) A claim for injury to or loss of property may be presented by 
the owner of the property interest that is the subject of the claim or 
the owner's duly authorized agent or legal representative.
    (b) A claim for personal injury may be presented by the injured 
person or the claimant's duly authorized agent or legal representative.
    (c) A claim based on death may be presented by the executor or 
administrator of the decedent's estate or by any other person legally 
entitled to assert such a claim under the applicable State law.
    (d) A claim for a loss that was wholly compensated by an insurer 
with the rights of a subrogee may be presented by the insurer. A claim 
for loss that was partially compensated by an insurer with the rights of 
a subrogee may be presented by the insurer or the insured individually, 
as their respective interests appear, or jointly. Whenever an insurer 
presents a claim asserting the rights of a subrogee, it shall present 
with its claim appropriate evidence that it has the rights of a 
subrogee.
    (e) A claim presented by an agent or legal representative shall be 
presented in the name of the claimant, be signed by the agent or legal 
representative, show the title or legal capacity of the person signing, 
and be accompanied by evidence of authority to present a claim on behalf 
of the claimant.



Sec. 1014.4  Administrative claims; evidence and information to be submitted.

    (a) Death. In support of a claim based on death, the claimant may be 
required to submit the following evidence or information:
    (1) An authenticated death certificate or other competent evidence 
showing the cause of death, the date of death, and the age of the 
decedent.
    (2) Decedent's employment or occupation at time of death, including 
monthly or yearly salary or earnings (if any), and the duration of last 
employment or occupation.
    (3) Full names, addresses, birth dates, kinship, and marital status 
of the decedent's survivors, including identification of those survivors 
who were dependent for support upon the decedent at the time of death.
    (4) The degree of support afforded by the decedent to each survivor 
dependent upon decedent for support at the time of death.
    (5) Decedent's general physical and mental condition before death.
    (6) Itemized bills for medical and burial expenses incurred by 
reason of the incident causing death, or itemized receipts of payment 
for such expenses.
    (7) If damages for pain and suffering prior to death are claimed, a 
physican's detailed statement specifying the injuries suffered, the 
duration of pain and suffering, any drugs administered for pain, and the 
decedent's physical condition between injury and death.
    (8) Any other evidence or information that may have a bearing on 
either the responsibility of the United States for the death or the 
amount of damages claimed.
    (b) Personal injury. In support of a claim for personal injury, 
including pain and suffering, the claimant may be required to submit the 
following evidence or information:
    (1) A written report by the attending physician or dentist setting 
forth the

[[Page 820]]

nature and extent of the injury, the nature and extent of treatment, any 
degree of temporary or permanent disability, the prognosis, the period 
of hospitalization, and any diminished earning capacity. In addition, 
the claimant may be required to submit to a physical or mental 
examination by a physician employed by the DOE or another Federal 
agency. A copy of the physician's report shall be made available to the 
claimant upon the claimant's written request, provided that the claimant 
has, upon request, made or agrees to make available to the DOE any 
physician's reports previously or thereafter made of the physical or 
mental condition which is the subject matter of the claim.
    (2) Itemized bills for medical, dental, and hospital expenses 
incurred, or itemized receipts of payment for such expenses.
    (3) If the prognosis reveals that future treatment will be needed, a 
statement of the expected expenses of such treatment.
    (4) If a claim is made for loss of time from employment, a written 
statement from the claimant's employer showing actual time lost from 
employment, whether the claimant is a full-time or part-time employee, 
and the wages or salary actually lost.
    (5) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amounts of earnings actually 
lost.
    (6) Any other evidence or information that may bear on either the 
responsibility of the United States for the personal injury or the 
damages claimed.
    (c) Property damage. In support of a claim for injury to or loss of 
property, real or personal, the claimant may be required to submit the 
following evidence or information:
    (1) Proof of ownership of the property interest that is the subject 
of the claim.
    (2) A detailed statement of the amount claimed with respect to each 
item of property.
    (3) An itemized receipt of payment for necessary repairs or itemized 
written estimates of the cost of such repairs.
    (4) A statement listing date of purchase, purchase price, and 
salvage value, where repair is not economical.
    (5) Any other evidence or information that may bear on either the 
responsibility of the United States for the injury to or loss of 
property or the damages claimed.



Sec. 1014.5  Authority to adjust, determine, compromise, and settle.

    The General Counsel, the Deputy General Counsel, the Deputy General 
Counsel for Legal Services, the Assistant General Counsel for Legal 
Counsel, and any employees of the Department designated by the General 
Counsel to receive and act on tort claims at Headquarters and field 
locations are authorized to act on claims.



Sec. 1014.6  Limitation on authority.

    (a) An award, compromise, or settlement of a claim in excess of 
$25,000 shall be made only with the prior written approval of the 
Attorney General or his or her designee. For the purposes of this 
paragraph, a principal claim and any derivative or subrogated claim 
shall be treated as a single claim.
    (b) An administrative claim may be adjusted, determined, 
compromised, or settled only after the Department of Justice has been 
consulted if, in the opinion of the General Counsel or designee:
    (1) A new precedent may be involved;
    (2) A question of policy may be involved;
    (3) The United States may be entitled to indemnity or contribution 
from a third party and the DOE is unable to adjust the third party 
claim; or
    (4) The compromise of a particular claim, as a practical matter, may 
control the disposition of a related claim in which the amount to be 
paid may exceed $25,000.
    (c) An administrative claim may be adjusted, determined, 
compromised, or settled only after consultation with the Department of 
Justice when the DOE is aware that the United States or an employee, 
agent, or cost-type contractor of the United States is involved in 
litagation based on a claim arising out of the same incident or 
transaction.

[[Page 821]]

    (d) The authority of DOE subordinate claims officials to make 
awards, compromises, and settlements of over $10,000 is subject to the 
approval of the General Counsel, the Deputy General Counsel, or the 
Deputy General Counsel for Legal Services.



Sec. 1014.7  Referral to Department of Justice.

    (a) When Department of Justice approval or consultation is required 
under Sec. 1014.6, the referral or request shall be transmitted to the 
Department of Justice by the General Counsel or designee.
    (b) When a designee of the General Counsel is processing a claim 
requiring consultation with, or approval of, either the DOE General 
Counsel or the Department of Justice, the referral or request shall be 
sent to the General Counsel in writing and shall contain:
    (1) A short and concise statement of the facts and of the reasons 
for the referral or request,
    (2) Copies of relevant portions of the claim file, and
    (3) A statement of recommendations or views.



Sec. 1014.8  Investigation and examination.

    The DOE may investigate, or may request any other Federal agency to 
investigate, a claim and may conduct, or request another Federal agency 
to conduct, a physical examination of a claimant and provide a report of 
the physical examination.



Sec. 1014.9  Final denial of claim.

    (a) Final denial of an administrative claim shall be in writing and 
sent to the claimant, or the claimant's attorney or legal representative 
by certified or registered mail. The notification of final denial may 
include a statement of the reasons for the denial and shall include a 
statement that, if the claimant is dissatisfied with the Department's 
action, the claimant may file suit in an appropriate U.S. District Court 
not more than 6 months after the notification is mailed.
    (b) Before the commencement of suit and before the 6-month period 
provided in 28 U.S.C. 2401(b) expires, a claimant, or the claimant's 
duly authorized agent, or legal representative, may file a written 
request with the DOE General Counsel for reconsideration of a final 
denial of a claim. Upon the timely filing of a request for 
reconsideration the DOE shall have 6 months from the date of filing to 
decide the claim, and the claimant's option under 28 U.S.C. 2675(a) 
shall not accrue until 6 months after the request for reconsideration is 
filed. Final DOE action on a request for reconsideration shall be made 
in accordance with the provisions of paragraph (a) of this section.



Sec. 1014.10  Action on approved claims.

    (a) Payment of any approved claim shall not be made unless the 
claimant executes (1) a Standard Form 1145, (2) a claims settlement 
agreement, or (3) a Standard Form 95, as appropriate consistent with 
applicable rules of the Department of Justice, Department of the 
Treasury, and the General Accounting Office. When a claimant is 
represented by an attorney, the voucher for payment shall designate both 
the claimant and the attorney as payees, and the check shall be 
delivered to the attorney, whose address shall appear on the voucher.
    (b) If the claimant or the claimant's agent or legal representative 
accepts any award, compromise, or settlement made pursuant to the 
provisions of section 2672 or 2677 of title 28, United States Code, that 
acceptance shall be final and conclusive on the claimant, the claimant's 
agent or legal representative, and any other person on whose behalf or 
for whose benefit the claim has been presented. The acceptance shall 
constitute a complete release of any claim against the United States and 
against any employee of the Government whose act or omission gave rise 
to the claim, by reason of the same subject matter.



Sec. 1014.11  Penalties.

    A person who files a false claim or makes a false or fraudulent 
statement in a claim against the United States may be liable to a fine 
of not more than $10,000 or to imprisonment for not more than 5 years, 
or both (18 U.S.C. 1001), and, in addtion, to a forfeiture of $2,000 and 
a penalty of double the loss

[[Page 822]]

or damage sustained by the United States (31 U.S.C 231).



PART 1015_COLLECTION OF CLAIMS OWED THE UNITED STATES--Table of Contents



                            Subpart A_General

Sec.
1015.100 Scope.
1015.101 Prescription of standards.
1015.102 Definitions and construction.
1015.103 Antitrust, fraud, tax, interagency, transportation account 
          audit, acquisition contract, and financial assistance 
          instrument claims excluded.
1015.104 Compromise, waiver, or disposition under other statutes not 
          precluded.
1015.105 Form of payment.
1015.106 Subdivision of claims not authorized.
1015.107 Required administrative proceedings.
1015.108 No private rights created.

     Subpart B_Standards for the Administrative Collection of Claims

1015.200 Scope.
1015.201 Aggressive agency collection activity.
1015.202 Demand for payment.
1015.203 Collection by administrative offset.
1015.204 Reporting debts.
1015.205 Credit reports.
1015.206 Contracting with private collection contractors and with 
          entities that locate and recover unclaimed assets.
1015.207 Suspension or revocation of eligibility for loans and loan 
          guaranties, licenses, permits, or privileges.
1015.208 Administrative wage garnishment.
1015.209 Tax refund offset.
1015.210 Liquidation of collateral.
1015.211 Collection in installments.
1015.212 Interest, penalties, and administrative costs.
1015.213 Analysis of costs.
1015.214 Use and disclosure of mailing addresses.
1015.215 Federal salary offset.
1015.216 Exemptions.

              Subpart C_Standards for Compromise of Claims

1015.300 Scope.
1015.301 Scope and application.
1015.302 Bases for compromise.
1015.303 Enforcement policy.
1015.304 Joint and several liability.
1015.305 Further review of compromise offers.
1015.306 Consideration of tax consequences to the Government.
1015.307 Mutual releases of the debtor and the Government.

  Subpart D_Standards for Suspending or Terminating Collection Activity

1015.400 Scope.
1015.401 Scope and application.
1015.402 Suspension of collection activity.
1015.403 Termination of collection activity.
1015.404 Exception to termination.
1015.405 Disharge of indebtedness; reporting requirements.

            Subpart E_Referrals to the Department of Justice

1015.500 Scope.
1015.501 Referrals to the Department of Justice and the Department of 
          the Treasury's Cross-Servicing Program.
1015.502 Prompt referral.
1015.503 Claims Collection Litigation Report.
1015.504 Preservation of evidence.
1015.505 Minimum amount of referrals to the Department of Justice.

    Authority: 31 U.S.C. 3701, 3711, 3716, 3717, 3718, and 3720B; 42 
U.S.C. 2201 and 7101, et seq.; 50 U.S.C. 2401 et seq.

    Source: 68 FR 48533, Aug. 14, 2003, unless otherwise noted.



                            Subpart A_General



Sec. 1015.100  Scope.

    This subpart describes the scope of the standards set forth in this 
part. This subpart corresponds to 31 CFR part 900 in the Department of 
the Treasury (Treasury) Federal Claims Collection Standards.



Sec. 1015.101  Prescription of standards.

    (a) The Secretary of the Treasury and the Attorney General of the 
United States issued regulations in 31 CFR parts 900-904, under the 
authority contained in 31 U.S.C. 3711(d)(2). Those regulations prescribe 
standards for Federal agency use in the administrative collection, 
offset, compromise, and the suspension or termination of collection 
activity for civil claims for money, funds, or property, as defined by 
31 U.S.C. 3701(b), unless specific Federal agency statutes or 
regulations apply to such activities or, as provided for by Title 11 of 
the United States Code, when the claims involve bankruptcy. The 
regulations in 31 CFR parts 900-904 also prescribe standards for 
referring

[[Page 823]]

debts to the Department of Justice (DOJ) for litigation. Additional 
guidance is contained in the Office of Management and Budget's (OMB) 
Circular A-129 (Revised), ``Policies for Federal Credit Programs and 
Non-Tax Receivables,'' the Treasury's ``Managing Federal Receivables,'' 
and other publications concerning debt collection and debt management. 
These publications are available from the Department of Energy (DOE) 
Office of Financial Policy, 1000 Independence Ave., SW., Washington, DC 
20585.
    (b) Additional rules governing centralized administrative offset and 
the transfer of delinquent debt to Treasury or Treasury-designated debt 
collection centers for collection (cross-servicing) under the Debt 
Collection Improvement Act of 1996 (DCIA), Public Law 104-134, 110 Stat. 
1321, 1358 (April 26, 1996), are set forth in separate regulations 
issued by Treasury. Rules governing the use of certain debt collection 
tools created under the DCIA, such as administrative wage garnishment, 
also are set forth in separate regulations issued by Treasury. See 
generally, 31 CFR part 285.
    (c) DOE is not limited to the remedies contained in this part and 
may use any other authorized remedies, including alternative dispute 
resolution and arbitration, to collect civil claims, to the extent that 
such remedies are not inconsistent with the Federal Claims Collection 
Act, as amended, Public Law 89-508, 80 Stat. 308 (July 19, 1966), the 
Debt Collection Act of 1982, Public Law 97-365, 96 Stat. 1749 (October 
25, 1982), the DCIA or other relevant law. The regulations in this part 
do not impair DOE's common law rights to collect debts.
    (d) Standards and policies regarding the classification of debt for 
accounting purposes (for example, write-off of uncollectible debt) are 
contained in OMB's Circular A-129 (Revised), ``Policies for Federal 
Credit Programs and Non-Tax Receivables.''



Sec. 1015.102  Definitions and construction.

    (a) For the purposes of the standards in this part, the terms 
``claim'' and ``debt'' are synonymous and interchangeable. They refer to 
an amount of money, funds, or property that has been determined by an 
agency official to be due the United States from any person, 
organization, or entity, except another Federal agency. For the purposes 
of administrative offset under 31 U.S.C. 3716, the terms ``claim'' and 
``debt'' include an amount of money, funds, or property owed by a person 
to a State (including past-due support being enforced by a State), the 
District of Columbia, American Samoa, Guam, the United States Virgin 
Islands, the Commonwealth of the Northern Mariana Islands, or the 
Commonwealth of Puerto Rico.
    (b) A debt is ``delinquent'' if it has not been paid by the date 
specified in DOE's initial written demand for payment or applicable 
agreement or instrument (including a post-delinquency payment 
agreement), unless other satisfactory payment arrangements have been 
made.
    (c) In this part, words in the plural form shall include the 
singular and vice versa, and words signifying the masculine gender shall 
include the feminine and vice versa. The terms ``includes'' and 
``including'' do not exclude matters not listed but do include matters 
that are in the same general class.
    (d) Recoupment is a special method for adjusting debts arising under 
the same transaction or occurrence. For example, obligations arising 
under the same contract generally are subject to recoupment.
    (e) The term ``Department of Energy'' or ``DOE'' includes the 
National Nuclear Security Administration.



Sec. 1015.103  Antitrust, fraud, tax, interagency, transportation account 

audit, acquisition contract, and financial assistance instrument claims excluded.

    (a) The standards in this part relating to compromise, suspension, 
and termination of collection activity do not apply to any debt based in 
whole or in part on conduct in violation of the antitrust laws or to any 
debt involving fraud, the presentation of a false claim, or 
misrepresentation on the part of the debtor or any party having an 
interest in the claim. Only the DOJ has the authority to compromise, 
suspend, or terminate collection activity on such

[[Page 824]]

claims. The standards in this part relating to the administrative 
collection of claims do apply, but only to the extent authorized by the 
DOJ in a particular case. Upon identification of a claim based in whole 
or in part on conduct in violation of the antitrust laws or any claim 
involving fraud, the presentation of a false claim, or misrepresentation 
on the part of the debtor or any party having an interest in the claim, 
DOE will promptly refer the case to the DOJ for action. At its 
discretion, the DOJ may return the claim to DOE for further handling in 
accordance with the standards in this part.
    (b) Part 1015 does not apply to tax debts.
    (c) Part 1015 does not apply to claims between Federal agencies. 
Federal agencies should attempt to resolve interagency claims by 
negotiation in accordance with Executive Order 12146 (3 CFR, 1980 Comp., 
pp. 409-412).
    (d) Part 1015 does not apply to claims arising from the audit of 
transportation accounts pursuant to 31 U.S.C. 3726 which shall be 
determined, collected, compromised, terminated, or settled in accordance 
with regulations published under the authority of 31 U.S.C. 3726 (see 41 
CFR parts 101-141, administered by the Director, Office of 
Transportation Audits, General Services Administration) and are 
otherwise excepted from these regulations.
    (e)(1) Part 1015 does not apply to claims arising out of acquisition 
contracts, subcontracts, and purchase orders which are subject to the 
Federal Acquisition Regulations System, including the Federal 
Acquisition Regulation, 48 CFR subpart 32.6, and the Department of 
Energy Acquisition Regulation, 48 CFR subpart 932.6, and which shall be 
determined or settled in accordance with those regulations; and
    (2) Part 1015 does not apply to claims arising out of financial 
assistance instruments (e.g., grants, cooperative agreements, and 
contracts under cooperative agreements) and loans and loan guarantees, 
which shall be determined or settled in accordance with 10 CFR 600.26 
and 10 CFR 600.112(f).



Sec. 1015.104  Compromise, waiver, or disposition under other statutes not precluded.

    Nothing in this part precludes DOE from disposing of any claim under 
statutes and implementing regulations other than subchapter II of 
chapter 37 of Title 31 of the United States Code (Claims of the United 
States Government) and the standards in this part. In such cases, the 
specifically applicable laws and regulations will generally take 
precedence over this part.



Sec. 1015.105  Form of payment.

    Claims may be paid in the form of money or, when a contractual basis 
exists, the Government may demand the return of specific property or the 
performance of specific services.



Sec. 1015.106  Subdivision of claims not authorized.

    Debts may not be subdivided to avoid the monetary ceiling 
established by 31 U.S.C. 3711(a)(2). A debtor's liability arising from a 
particular transaction or contract shall be considered a single debt in 
determining whether the debt is one of less than $100,000 (excluding 
interest, penalties, and administrative costs) or such higher amount as 
the Attorney General shall from time to time prescribe for purposes of 
compromise or suspension or termination of collection activity.



Sec. 1015.107  Required administrative proceedings.

    DOE is not required to omit, foreclose, or duplicate administrative 
proceedings required by contract or other laws or regulations.



Sec. 1015.108  No private rights created.

    The standards in this part do not create any right or benefit, 
substantive or procedural, enforceable at law or in equity by a party 
against the United States, its agencies, its officers, or any other 
person, nor shall the failure of DOE, Treasury, the DOJ or other agency 
to comply with any of the provisions of this part be available to any 
debtor as a defense.

[[Page 825]]



     Subpart B_Standards for the Administrative Collection of Claims



Sec. 1015.200  Scope.

    The subpart sets forth the standards for administrative collection 
of claims under this part. This subpart corresponds to 31 CFR part 901 
of the Treasury Federal Claims Collection Standards.



Sec. 1015.201  Aggressive agency collection activity.

    (a) Heads of DOE Headquarters Elements and Field Elements or their 
designees must promptly notify the appropriate DOE finance office of 
claims arising from their operations. A claim will be recorded and 
controlled by the responsible finance office upon receipt of 
documentation from a competent authority establishing the amount due.
    (b) In accordance with 31 CFR Chapter IX parts 900-904 and this 
part, DOE will aggressively collect all debts arising out of activities. 
Collection activities shall be undertaken promptly with follow-up action 
taken as necessary.
    (c) Debts referred or transferred to Treasury, or Treasury-
designated debt collection centers under the authority of 31 U.S.C. 
3711(g), shall be serviced, collected, or compromised, or the collection 
action will be suspended or terminated, in accordance with the statutory 
requirements and authorities applicable to the collection of such debts.
    (d) DOE will cooperate with other agencies in its debt collection 
activities.
    (e) DOE will refer debts to Treasury as soon as due process 
requirements are complete, and should refer such debts no later than 180 
days after the debt has become delinquent. On behalf of DOE, Treasury 
will take appropriate action to collect or compromise the referred debt, 
or to suspend or terminate collection action thereon, in accordance with 
the statutory and regulatory requirements and authorities applicable to 
the debt and action. Appropriate action to collect a debt may include 
referral to another debt collection center, a private collection 
contractor, or the DOJ for litigation. (See 31 CFR 285.12, Transfer of 
Debts to Treasury for Collection.) This requirement does not apply to 
any debt that:
    (1) Is in litigation or foreclosure;
    (2) Will be disposed of under an approved asset sale program;
    (3) Has been referred to a private collection contractor for a 
period of time acceptable to Treasury; or
    (4) Will be collected under internal offset procedures within three 
years after the debt first became delinquent.
    (f) Treasury is authorized to charge a fee for services rendered 
regarding referred or transferred debts. DOE will add the fee to the 
debt as an administrative cost (see Sec. 1015.212(c)).



Sec. 1015.202  Demand for payment.

    (a) Written demand as described in paragraph (b) of this section 
will be made promptly upon a debtor of the United States in terms that 
inform the debtor of the consequences of failing to cooperate with DOE 
to resolve the debt. Generally, one demand letter issued 30 days after 
the initial notice, bill, or written demand should suffice. When 
necessary to protect the Government's interest (for example, to prevent 
the running of a statute of limitations), written demand may be preceded 
by other appropriate actions under this Part, including immediate 
referral for litigation.
    (b) Demand letters will inform the debtor of:
    (1) The basis for the indebtedness and the rights, if any, the 
debtor may have to seek review within DOE;
    (2) The applicable standards for imposing any interest, penalties, 
or administrative costs;
    (3) The date by which payment should be made to avoid late charges 
(i.e., interest, penalties, and administrative costs) and enforced 
collection, which generally should not be more than 30 days from the 
date that the demand letter is mailed or hand-delivered;
    (4) The name, address, and phone number of a contact person or 
office within DOE;
    (5) DOE's intent to refer unpaid debts to Treasury for collection;
    (6) DOE's intent to authorize Treasury to add fees for services 
rendered as an administrative fee;

[[Page 826]]

    (7) DOE's intent to authorize Treasury to utilize collection tools 
such as credit bureau reporting, private collection agencies, 
administrative wage garnishment, Federal salary offset, tax refund 
offset, administrative offset, litigation, and other tools, as 
appropriate, to collect the debt;
    (8) DOE's willingness to discuss alternative methods of payment;
    (9) The debtor's entitlement to consideration of a waiver, depending 
on applicable statutory authority; and
    (10) DOE's intent to suspend or revoke licenses, permits, or 
privileges for any inexcusable or willful failure of a debtor to pay 
such a debt in accordance with DOE regulations or governing procedures.
    (c) DOE will seek to ensure that demand letters are mailed or hand-
delivered on the same day that they are dated.
    (d) DOE will seek to respond promptly to communications from 
debtors, within 30 days whenever feasible, and will advise debtors who 
dispute debts to furnish available evidence to support their 
contentions.
    (e) Prior to the initiation of the demand process or at any time 
during or after completion of the demand process, if DOE determines to 
pursue, or is required to pursue, offset, the procedures applicable to 
offset should be followed (see Sec. 1015.203 of this subpart). The 
availability of funds or money for debt satisfaction by offset and DOE's 
determination to pursue collection by offset shall release DOE from the 
necessity of further compliance with paragraphs (a), (b), and (c) of 
this section.
    (f) Prior to referring a debt for litigation, DOE should advise each 
person determined to be liable for the debt that, unless the debt can be 
collected administratively, litigation may be initiated. This 
notification should comply with Executive Order 12988 (3 CFR, 1996 Comp, 
pp. 157-163) and should be given as part of a demand letter under 
paragraph (b) of this section.
    (g) When DOE learns that a bankruptcy petition has been filed with 
respect to a debtor, before proceeding with further collection action, 
DOE should immediately seek legal advice from appropriate legal counsel 
concerning the impact of the Bankruptcy Code on any pending or 
contemplated collection activities. Unless counsel determines that the 
automatic stay imposed at the time of filing pursuant to 11 U.S.C. 362 
has been lifted or is no longer in effect, in most cases collection 
activity against the debtor should stop immediately.
    (1) After seeking legal advice, a proof of claim should be filed in 
most cases with the bankruptcy court or the Trustee. DOE will refer to 
the provisions of 11 U.S.C. 106 relating to the consequences on 
sovereign immunity of filing a proof of claim.
    (2) If DOE is a secured creditor, it may seek relief from the 
automatic stay regarding its security, subject to the provisions and 
requirements of 11 U.S.C. 362.
    (3) Offset is stayed in most cases by the automatic stay. However, 
DOE will seek legal advice from counsel to determine whether its 
payments to the debtor and payments of other agencies available for 
offset may be frozen until relief from the automatic stay can be 
obtained from the bankruptcy court. DOE also will seek legal advice from 
counsel to determine whether recoupment is available.



Sec. 1015.203  Collection by administrative offset.

    (a) Scope. (1) The term ``administrative offset'' has the meaning 
provided in 31 U.S.C. 3701(a)(1).
    (2) This section does not apply to:
    (i) Debts arising under the Social Security Act (42 U.S.C. 301, et. 
seq.) except as provided in 42 U.S.C. 404;
    (ii) Payments made under the Social Security Act (42 U.S.C. 301, et. 
seq.) except as provided for in 31 U.S.C. 3716(c) (see 31 CFR 285.4, 
Federal Benefit Offset);
    (iii) Debts arising under, or payments made under, the Internal 
Revenue Code (see 31 CFR 285.2, Tax Refund Offset) or the tariff laws of 
the United States;
    (iv) Offsets against Federal salaries to the extent these standards 
are inconsistent with regulations published to implement such offsets 
under 5 U.S.C. 5514 and 31 U.S.C. 3716 (see 5 CFR part 550, subpart K, 
and 31 CFR 285.7, Federal Salary Offset);

[[Page 827]]

    (v) Offsets under 31 U.S.C. 3728 against a judgment obtained by a 
debtor against the United States;
    (vi) Offsets or recoupments under common law, state law, or Federal 
statutes specifically prohibiting offsets or recoupments of particular 
types of debts; or
    (vii) Offsets in the course of judicial proceedings, including 
bankruptcy.
    (3) Unless otherwise provided for by contract or law, debts or 
payments that are not subject to administrative offset under 31 U.S.C. 
3716 may be collected by administrative offset under the common law or 
other applicable statutory authority.
    (4) Unless otherwise provided by law, administrative offset of 
payments under the authority of 31 U.S.C. 3716 to collect a debt may not 
be conducted more than 10 years after the Government's right to collect 
the debt first accrued, unless facts material to the Government's right 
to collect the debt were not known and could not reasonably have been 
known by the official or officials of the Government who were charged 
with the responsibility to discover and collect such debts. This 
limitation does not apply to debts reduced to a judgment.
    (5) In bankruptcy cases, DOE will seek legal advice from appropriate 
legal counsel concerning the impact of the Bankruptcy Code, particularly 
11 U.S.C. 106, 362, and 553, on pending or contemplated collections by 
offset.
    (b) Mandatory centralized administrative offset. (1) As described in 
Sec. 1015.201(e), under the DCIA, DOE is required to refer all debts 
over 180 days delinquent to Treasury for purposes of debt collection 
(i.e., cross-servicing). Administrative offset is one type of collection 
tool used by Treasury to collect debts referred under 31 CFR 285.12. 
Thus, by transferring debts to Treasury, DOE will satisfy the 
requirement to notify Treasury of debts for the purposes of 
administrative offset and duplicate referrals are not required. A debt, 
which is not transferred to Treasury for purposes of debt collection, 
however, may be subject to the DCIA requirement of notification to 
Treasury for purposes of administrative offset.
    (2) The names and taxpayer identifying numbers (TINs) of debtors who 
owe debts referred to Treasury as described in paragraph (b)(1) of this 
section shall be compared to the names and TINs on payments to be made 
by Federal disbursing officials. Federal disbursing officials include 
disbursing officials of Treasury, the Department of Defense, the United 
States Postal Service, other Government corporations, and disbursing 
officials of the United States designated by the Secretary of the 
Treasury. When the name and TIN of a debtor match the name and TIN of a 
payee and all other requirements for offset have been met, the payment 
will be offset to satisfy the debt.
    (3) Treasury will notify the debtor/payee in writing that an offset 
has occurred to satisfy, in part or in full, a past due, legally 
enforceable delinquent debt. The notice shall include a description of 
the type and amount of the payment from which the offset was taken, the 
amount of offset that was taken, the identity of DOE as the creditor 
agency requesting the offset, and a contact point within DOE who will 
respond to questions regarding the offset.
    (4) As required in 31 CFR 901.3(b)(4), DOE will refer a delinquent 
debt to Treasury for administrative offset, only after the debtor:
    (i) Has been sent written notice of the type and amount of the debt, 
the intention of DOE to use administrative offset to collect the debt, 
and an explanation of the debtor's rights under 31 U.S.C. 3716; and
    (ii) Has been given:
    (A) The opportunity to inspect and copy DOE records related to the 
debt;
    (B) The opportunity for a review within DOE of the determination of 
indebtedness; and
    (C) The opportunity to make a written agreement to repay the debt.
    (iii) DOE may omit the procedures set forth in paragraph (a)(4) of 
this section when:
    (A) The offset is in the nature of a recoupment;
    (B) The debt arises under a contract as set forth in Cecile 
Industries, Inc. v. Cheney, 995 F.2d 1052 (Fed. Cir. 1993) (notice and 
other procedural protections set forth in 31 U.S.C. 3716(a) do

[[Page 828]]

not supplant or restrict established procedures for contractual offsets 
accommodated by the Contracts Disputes Act); or
    (C) In the case of non-centralized administrative offsets conducted 
under paragraph (c) of this section, DOE first learns of the existence 
of the amount owed by the debtor when there is insufficient time before 
payment would be made to the debtor/payee to allow for prior notice and 
an opportunity for review. When prior notice and an opportunity for 
review are omitted, DOE shall give the debtor such notice and an 
opportunity for review as soon as practicable and shall promptly refund 
any money ultimately found not to have been owed to the Government.
    (iv) When DOE previously has given a debtor any of the required 
notice and review opportunities with respect to a particular debt (see 
Sec. 1015.202), DOE need not duplicate such notice and review 
opportunities before administrative offset may be initiated.
    (5) When DOE refers delinquent debts to Treasury, DOE must certify, 
in a form acceptable to Treasury, that:
    (i) The debt(s) is (are) past due and legally enforceable; and
    (ii) DOE has complied with all due process requirements under 31 
U.S.C. 3716(a) and DOE regulations.
    (6) Payments that are prohibited by law from being offset are exempt 
from centralized administrative offset. Treasury may exempt classes of 
DOE payments from centralized offset upon the written request of the 
Secretary of DOE.
    (7) In accordance with 31 U.S.C. 3716(f), Treasury may waive the 
provisions of the Computer Matching and Privacy Protection Act of 1988 
concerning matching agreements and post-match notification and 
verification (5 U.S.C. 552a(o) and (p)) for centralized administrative 
offset upon receipt of a certification from DOE that the due process 
requirements enumerated in 31 U.S.C. 3716(a) have been met. The 
certification of a debt in accordance with paragraph (b)(5) of this 
section will satisfy this requirement. If such a waiver is granted, only 
the Data Integrity Board of Treasury is required to oversee any matching 
activities, in accordance with 31 U.S.C. 3716(g). This waiver authority 
does not apply to offsets conducted under paragraphs (c) and (d) of this 
section.
    (c) Non-centralized administrative offset. (1) Generally, non-
centralized administrative offsets are ad hoc case-by-case offsets that 
DOE conducts, at DOE's discretion, internally or in cooperation with the 
agency certifying or authorizing payments to the debtor. Unless 
otherwise prohibited by law, when centralized administrative offset is 
not available or appropriate, past due, legally enforceable non-tax 
delinquent debts may be collected through non-centralized administrative 
offset. In these cases, DOE may make a request directly to a payment-
authorizing agency to offset a payment due a debtor to collect a 
delinquent debt. For example, it may be appropriate for DOE to request 
that the Office of Personnel Management (OPM) offset a Federal 
employee's lump sum payment upon leaving Government service to satisfy 
an unpaid advance.
    (2) DOE shall comply with offset requests by creditor agencies to 
collect debts owed to the United States, unless the offset would not be 
in the best interest of the United States with respect to the program of 
DOE, or would otherwise be contrary to law. Appropriate use will be made 
of the cooperative efforts of other agencies in effecting collection by 
administrative offset.
    (3) When collecting multiple debts by non-centralized administrative 
offset, DOE generally will apply the recovered amounts to those debts in 
accordance with the best interests of the United States, as determined 
by the facts and circumstances of the particular case, particularly the 
applicable statute of limitations.
    (d) Requests to OPM to offset a debtor's anticipated or future 
benefit payments under the Civil Service Retirement and Disability Fund. 
Upon providing OPM written certification that a debtor has been afforded 
the procedures provided in paragraph (b)(4) of this section, DOE may 
request OPM to offset a debtor's anticipated or future benefit payments 
under the Civil Service Retirement and Disability Fund (Fund) in 
accordance with regulations codified at 5 CFR 831.1801-831.1808. Upon 
receipt of such a request, OPM will identify and ``flag'' a

[[Page 829]]

debtor's account in anticipation of the time when the debtor requests, 
or becomes eligible to receive, payments from the Fund. This will 
satisfy any requirement that offset be initiated prior to the expiration 
of the time limitations referenced in paragraph (a)(4) of this section.
    (e) Review requirements. (1) For purposes of this section, whenever 
DOE is required to afford a debtor a review within the agency, DOE shall 
provide the debtor with a reasonable opportunity for an oral hearing 
when the debtor requests reconsideration of the debt and DOE determines 
that the question of the indebtedness cannot be resolved by review of 
the documentary evidence, for example, when the validity of the debt 
turns on an issue of credibility or veracity.
    (2) Unless otherwise required by law, an oral hearing under this 
section is not required to be a formal evidentiary hearing, although DOE 
will carefully document all significant matters discussed at the 
hearing.
    (3) This section does not require an oral hearing with respect to 
debt collection systems in which a determination of indebtedness rarely 
involves issues of credibility or veracity and DOE has determined that 
review of the written record is ordinarily an adequate means to correct 
prior mistakes.
    (4) In those cases when an oral hearing is not required by this 
section, DOE will accord the debtor a ``paper hearing,'' that is, a 
determination of the request for reconsideration based upon a review of 
the written record.



Sec. 1015.204  Reporting debts.

    (a) DOE may disclose delinquent debts to consumer reporting agencies 
in accordance with 31 U.S.C. 3711(e), the DCIA, the revised Federal 
Claims Collection Standards (31 CFR parts 900-904) published November 
22, 2000, and other applicable authorities. DOE will ensure that all of 
the rights and protections afforded to the debtor under 31 U.S.C. 
3711(e) have been fulfilled. Additional guidance is contained in 
Treasury's ``Guide to the Federal Credit Bureau Program,'' revised 
October 2001.
    (b) As described in Sec. 1015.201(e), under the DCIA (31 U.S.C. 
3711(g)), DOE is required to transfer all debts over 180 days delinquent 
to Treasury for purposes of debt collection (i.e., cross-servicing). As 
part of its regular debt collection procedures, Treasury will report 
debts it is collecting to the appropriate designated credit reporting 
agencies on behalf of DOE. A debt not transferred to Treasury for 
purposes of debt collection, however, may be subject to the DCIA 
requirement to report all non-tax delinquent consumer debts to credit 
reporting agencies.



Sec. 1015.205  Credit reports.

    (a) In order to aid DOE in making appropriate determinations as to 
the collection and compromise of claims; the collection of interest, 
penalties, and administrative costs; and the likelihood of collecting 
the claim, DOE may institute a credit investigation of the debtor at any 
time following receipt of knowledge of the claim.
    (b) As described in Sec. 1015.201(e), under the DCIA (31 U.S.C. 
3711(g)), DOE is required to transfer all debts over 180 days delinquent 
to Treasury for purposes of debt collection (i.e., cross-servicing). As 
part of its regular debt collection procedures, Treasury may also 
institute a credit investigation of the debtor on behalf of DOE.



Sec. 1015.206  Contracting with private collection contractors and with entities that locate and recover unclaimed assets.

    (a) DOE may contract with private collection contractors in 
accordance with 31 U.S.C. 3718(d), the DCIA, the revised Federal Claims 
Collection Standards (31 CFR parts 900-904) published November 22, 2000, 
and other applicable authorities.
    (b) As described in Sec. 1015.201(e), under the DCIA, DOE is 
required to transfer all debts over 180 days delinquent to Treasury for 
purposes of debt collection (i.e., cross-servicing) under 31 U.S.C. 
3711(g). As part of its regular debt collection procedures, Treasury may 
refer delinquent debts to private collection contractors on behalf of 
DOE.
    (c) DOE may enter into contracts for locating and recovering assets 
of the United States, such as unclaimed assets. DOE must establish 
procedures acceptable to Treasury before entering

[[Page 830]]

into contracts to recover assets of the United States held by a state 
government or a financial institution.
    (d) DOE may enter into contracts for debtor asset and income search 
reports. In accordance with 31 U.S.C. 3718(d), such contracts may 
provide that the fee a contractor charges DOE for such services may be 
payable from the amounts recovered, unless otherwise prohibited by 
statute.



Sec. 1015.207  Suspension or revocation of eligibility for loans and loan guaranties, licenses, permits, or privileges.

    (a) Unless waived by the Secretary of DOE or his designee, DOE may 
not extend financial assistance in the form of a loan, loan guarantee, 
or loan insurance to any person who DOE knows to be delinquent on a non-
tax debt owed to a Federal agency. This prohibition does not apply to 
disaster loans. The authority to waive the application of this section 
may be delegated to the Chief Financial Officer and redelegated only to 
the Deputy Chief Financial Officer of DOE. DOE may extend credit after 
the delinquency has been resolved. See 31 CFR 285.13 (Barring Delinquent 
Debtors From Obtaining Federal Loans or Loan Insurance or Guarantees).
    (b) In non-bankruptcy cases, DOE offices seeking the collection of 
statutory penalties, forfeitures, or other types of claims should 
consider the suspension or revocation of licenses, permits, or other 
privileges for any inexcusable or willful failure of a debtor to pay 
such a debt in accordance with DOE's regulations or governing 
procedures. The debtor should be advised in DOE's written demand for 
payment of DOE's ability to suspend or revoke licenses, permits, or 
privileges. Any DOE office making, guaranteeing, insuring, acquiring, or 
participating in loans should consider suspending or disqualifying any 
lender, contractor, or broker from doing further business with DOE or 
engaging in programs sponsored by DOE if such lender, contractor, or 
broker fails to pay its debts to the Government within a reasonable time 
or if such lender, contractor, or broker has been suspended, debarred, 
or disqualified from participation in a program or activity by another 
Federal agency. The failure of any surety to honor its obligations in 
accordance with 31 U.S.C. 9305 should be reported to Treasury. Treasury 
will forward to all interested agencies notification that a surety's 
certificate of authority to do business with the Government has been 
revoked by Treasury.
    (c) The suspension or revocation of licenses, permits, or privileges 
also should extend to Federal programs or activities that are 
administered by the states on behalf of the Federal Government, to the 
extent that they affect the Federal Government's ability to collect 
money or funds owed by debtors. Therefore, states that manage Federal 
activities, pursuant to approval from DOE, should ensure that 
appropriate steps are taken to safeguard against issuing licenses, 
permits, or privileges to debtors who fail to pay their debts to the 
Federal Government.
    (d) In bankruptcy cases, before advising the debtor of DOE's 
intention to suspend or revoke licenses, permits, or privileges, DOE 
will seek legal advice from counsel concerning the impact of the 
Bankruptcy Code, particularly 11 U.S.C. 362 and 525, which may restrict 
such action.



Sec. 1015.208  Administrative wage garnishment.

    (a) DOE may use administrative wage garnishment to collect money 
from a debtor's disposable pay to satisfy delinquent debt in accordance 
with section 31001(o) of the DCIA, codified at 31 U.S.C. 3720D. Treasury 
has issued regulations implementing the administrative wage garnishment 
provisions contained in the DCIA, at 31 CFR 285.11. DOE has adopted 
these regulations in their entirety.
    (b) As described in Sec. 1015.201(e) of this part, under the DCIA 
(31 U.S.C. 3711(g)), DOE is required to transfer all debts over 180 days 
delinquent to Treasury for purposes of debt collection (i.e., cross-
servicing). As part of its regular debt collection procedures, Treasury 
may use administrative wage garnishment on behalf of DOE.



Sec. 1015.209  Tax refund offset.

    (a) DOE may authorize the Internal Revenue Service (IRS) to offset a 
tax

[[Page 831]]

refund to satisfy delinquent debt in accordance with 31 U.S.C. 3720A, 
Reduction of Tax Refund by Amount of Debt. Treasury has issued 
regulations implementing the tax refund offset as part of Treasury's 
mandatory centralized offset at 31 CFR 285.2, Offset of Tax Refund to 
Collect Past-Due, Legally Enforceable Non-tax Debt. DOE has adopted 31 
U.S.C. 3720A and 31 CFR 285.2 in their entirety. The due process 
requirements of 31 U.S.C. 3720A are contained in Sec. Sec. 
1015.203(b)(4), and 1015.203(e) of this part.
    (b) As described in Sec. 1015.201(e) of this part, under the DCIA 
(31 U.S.C. 3711(g)), DOE is required to transfer all debts over 180 days 
delinquent to Treasury for purposes of debt collection (i.e., cross-
servicing). As part of its regular debt collection procedures, Treasury 
may use tax refund offset on behalf of DOE.



Sec. 1015.210  Liquidation of collateral.

    (a) DOE may liquidate security or collateral through the exercise of 
a power of sale in the security instrument or a nonjudicial foreclosure, 
and apply the proceeds to the applicable debt(s), if the debtor fails to 
pay the debt(s) within a reasonable time after demand and if such action 
is in the best interest of the United States. Collection from other 
sources, including liquidation of security or collateral, is not a 
prerequisite to requiring payment by a surety, insurer, or guarantor 
unless such action is expressly required by statute or contract.
    (b) When DOE learns that a bankruptcy petition has been filed with 
respect to a debtor, DOE will seek legal advice from counsel concerning 
the impact of the Bankruptcy Code, including, but not limited to, 11 
U.S.C. 362, to determine the applicability of the automatic stay and the 
procedures for obtaining relief from such stay prior to proceeding under 
paragraph (a) of this section.



Sec. 1015.211  Collection in installments.

    (a) Whenever feasible, DOE shall collect the total amount of a debt 
in one lump sum. If a debtor is financially unable to pay a debt in one 
lump sum, DOE may accept payment in regular installments. DOE will 
obtain a current financial statement showing the debtor's assets, 
liabilities, income, and expenses from debtors who represent that they 
are unable to pay in one lump sum, and independently verify such 
representations whenever possible. DOE may also obtain credit reports or 
other financial information to assess installment requests. DOE may use 
its own financial information form or a DOJ form, such as the Financial 
Statement of Debtor (OBD-500) (see Sec. 1015.302(g) of this part). When 
DOE agrees to accept payments in regular installments, it will obtain a 
legally enforceable, written agreement from the debtor that specifies 
all of the terms of the arrangement and that contains a provision 
accelerating the debt in the event of default.
    (b) The size and frequency of installment payments should bear a 
reasonable relation to the size of the debt and the debtor's ability to 
pay. If possible, the installment payments should be sufficient in size 
and frequency to liquidate the debt in three years or less.
    (c) Security for deferred payments should be obtained in appropriate 
cases. DOE may accept installment payments notwithstanding the refusal 
of the debtor to execute a written agreement or to give security, at 
DOE's option.



Sec. 1015.212  Interest, penalties and administrative costs.

    (a) Except as provided in paragraphs (g), (h), and (i) of this 
section, DOE shall charge interest, penalties and administrative costs 
on debts owed to the United States pursuant to 31 U.S.C. 3717. DOE shall 
mail or hand-deliver a written notice to the debtor, at the debtor's 
most recent address available to DOE, explaining DOE's requirements 
concerning these charges except where these requirements are included in 
a contractual or repayment agreement. These charges shall continue to 
accrue until the debt is paid in full or otherwise resolved through 
compromise, termination, or waiver of the charges.
    (b) DOE shall charge interest on debts owed the United States as 
follows:
    (1) Interest shall accrue from the date of delinquency, or as 
otherwise provided by law.

[[Page 832]]

    (2) Unless otherwise established in a contract, repayment agreement, 
or by statute, the rate of interest charged shall be the rate 
established annually by Treasury in accordance with 31 U.S.C. 3717. 
Pursuant to 31 U.S.C 3717, DOE may charge a higher rate of interest if 
it reasonably determines that a higher rate is necessary to protect the 
rights of the United States. DOE will document the reason(s) for its 
determination that the higher rate is necessary.
    (3) The rate of interest, as initially charged, shall remain fixed 
for the duration of the indebtedness. When a debtor defaults on a 
repayment agreement and seeks to enter into a new agreement, DOE may 
require payment of interest at a new rate that reflects the current 
value of funds to the Treasury at the time the new agreement is 
executed. Interest shall not be compounded, that is, interest shall not 
be charged on interest, penalties, or administrative costs required by 
this section. If, however, a debtor defaults on a previous repayment 
agreement, charges that accrued but were not collected under the 
defaulted agreement shall be added to the principal under the new 
repayment agreement.
    (c) DOE shall assess administrative costs incurred for processing 
and handling delinquent debts. The calculation of administrative costs 
should be based on actual costs incurred or upon estimated costs as 
determined by the assessing office.
    (d) Unless otherwise established in a contract, repayment agreement, 
or by statute, DOE shall charge a penalty, pursuant to 31 U.S.C. 
3717(e)(2), not to exceed six percent a year on the amount due on a debt 
that is delinquent for more than 90 days. This charge shall accrue from 
the date of delinquency.
    (e) DOE may increase an ``administrative debt'' by the cost of 
living adjustment in lieu of charging interest and penalties under this 
section. ``Administrative debt'' includes, but is not limited to, a debt 
based on fines, penalties, and overpayments, but does not include a debt 
based on the extension of Government credit, such as those arising from 
loans and loan guaranties. The cost of living adjustment is the 
percentage by which the Consumer Price Index for the month of June of 
the calendar year preceding the adjustment exceeds the Consumer Price 
Index for the month of June of the calendar year in which the debt was 
determined or last adjusted. Increases to administrative debts shall be 
computed annually. DOE will use this alternative only when there is a 
legitimate reason to do so, such as when calculating interest and 
penalties on a debt would be extremely difficult because of the age of 
the debt.
    (f) When a debt is paid in partial or installment payments, amounts 
received by DOE shall be applied first to outstanding penalties, second 
to administrative costs, third to interest, and last to principal.
    (g) DOE shall waive the collection of interest and administrative 
costs imposed pursuant to this section on the portion of the debt that 
is paid within 30 days after the date on which interest began to accrue. 
DOE may extend this 30-day period on a case-by-case basis. In addition, 
DOE may waive interest, penalties, and administrative costs charged 
under this section, in whole or in part, without regard to the amount of 
the debt, either under the criteria set forth in these standards for the 
compromise of debts, or if DOE determines that collection of these 
charges is against equity and good conscience or is not in the best 
interest of the United States.
    (h) When a debtor requests a waiver or review of the debt, DOE will 
continue to accrue interest, penalties, and administrative costs during 
the period collection activity is suspended. Upon completion of DOE's 
review, interest, penalties, and administrative costs related to the 
portion of the debt found to be without merit will be waived.
    (i) DOE is authorized to impose interest and related charges on 
debts not subject to 31 U.S.C. 3717, in accordance with the common law.



Sec. 1015.213  Analysis of costs.

    DOE will prepare periodic comparisons of costs incurred and amounts 
collected. Data on costs and corresponding recovery rates for debts of 
different types and in various dollar ranges will be used to compare the 
cost

[[Page 833]]

effectiveness of alternative collection techniques, establish guidelines 
with respect to points at which costs of further collection efforts are 
likely to exceed recoveries, assist in evaluating offers in compromise, 
and establish minimum debt amounts below which collection efforts need 
not be taken.



Sec. 1015.214  Use and disclosure of mailing addresses.

    (a) When attempting to locate a debtor in order to collect or 
compromise a debt under Sec. Sec. 1015.100-105 of this part or other 
authority, DOE may send a request to Treasury to obtain a debtor's 
mailing address from the records of the IRS.
    (b) DOE may use mailing addresses obtained under paragraph (a) of 
this section to enforce collection of a delinquent debt and may disclose 
such mailing addresses to other agencies and to collection agencies for 
collection purposes.



Sec. 1015.215  Federal salary offset.

    (a) DOE may authorize Treasury to offset a Federal salary to satisfy 
delinquent debt in accordance with 5 U.S.C. 5514, Installment Deduction 
for Indebtedness to the United States; 5 CFR 550.1101 through 550.1108, 
Collection by Offset from Indebted Government Employees; 31 CFR parts 
900-904, the revised Federal Claims Collection Standards; and 31 CFR 
285.7, Salary Offset. DOE shall ensure that all of the rights and 
protections afforded to the debtor under 5 U.S.C. 5514 and 31 CFR 901.3 
have been fulfilled. Claims due from Federal employees will be collected 
in accordance with DOE Order 2200.2B, Collection from Current and Former 
Employees for Indebtedness to the United States.
    (b) As described in Sec. 1015.201(e), under the DCIA (31 U.S.C. 
3711(g)), DOE is required to refer all debts over 180 days delinquent to 
Treasury for purposes of debt collection (i.e., cross-servicing). As 
part of its regular debt collection procedures, Treasury may use Federal 
salary offset on behalf of DOE.



Sec. 1015.216  Exemptions.

    (a) The preceding sections of this part, to the extent they reflect 
remedies or procedures prescribed by the Debt Collection Act of 1982 and 
the DCIA, such as administrative offset, use of credit bureaus, 
contracting for collection agencies, and interest and related charges, 
do not apply to debts arising under, or payments made under, the 
Internal Revenue Code of 1986, as amended (26 U.S.C. 1, et seq.); the 
Social Security Act (42 U.S.C. 301, et seq.) except to the extent 
provided under 42 U.S.C. 404 and 31 U.S.C. 3716(c); or the tariff laws 
of the United States. These remedies and procedures, however, may be 
authorized with respect to debts that are exempt from the Debt 
Collection Act of 1982 and the DCIA, to the extent that they are 
authorized under some other statute or the common law.
    (b) This section should not be construed as prohibiting the use of 
these authorities or requirements when collecting debts owed by persons 
employed by agencies administering the laws cited in paragraph (a) of 
this section unless the debt arose under those laws.



            Subpart C_Standards for the Compromise of Claims



Sec. 1015.300  Scope.

    This subpart sets forth the standards for the compromise of claims 
under this part. This subpart corresponds to 31 CFR part 902 of the 
Treasury Federal Claims Collection Standards.



Sec. 1015.301  Scope and application.

    (a) The standards set forth in this subpart apply to the compromise 
of debts pursuant to 31 U.S.C. 3711. DOE's Chief Financial Officer or 
designee or Heads of Field Elements or designees in field locations may 
exercise such compromise authority for debts arising out of activities 
of, or referred or transferred for collection services to, DOE when the 
amount of the debt then due, exclusive of interest, penalties, and 
administrative costs, does not exceed $100,000 or any higher amount 
authorized by the Attorney General.
    (b) Unless otherwise provided by law, when the principal balance of 
a debt, exclusive of interest, penalties, and administrative costs, 
exceeds $100,000 or any higher amount authorized by the

[[Page 834]]

Attorney General, the authority to accept the compromise rests with the 
DOJ. DOE will evaluate the compromise offer, using the factors set forth 
in this part. If an offer to compromise any debt in excess of $100,000 
is acceptable to DOE, DOE shall refer the debt to the Civil Division or 
other appropriate litigating division in the DOJ using a Claims 
Collection Litigation Report (CCLR). DOE may obtain the CCLR from the 
DOJ's National Central Intake Facility. The referral shall include 
appropriate financial information and a recommendation for the 
acceptance of the compromise offer. DOJ approval is not required if DOE 
rejects a compromise offer.



Sec. 1015.302  Bases for compromise.

    (a) DOE may compromise a debt if the Government cannot collect the 
full amount because:
    (1) The debtor is unable to pay the full amount in a reasonable 
time, as verified through credit reports or other financial information;
    (2) The Government is unable to collect the debt in full within a 
reasonable time by enforced collection proceedings;
    (3) The cost of collecting the debt does not justify the enforced 
collection of the full amount; or
    (4) There is significant doubt concerning the Government's ability 
to prove its case in court.
    (b) In determining the debtor's inability to pay, DOE should 
consider relevant factors such as the following:
    (1) Age and health of the debtor;
    (2) Present and potential income;
    (3) Inheritance prospects;
    (4) The possibility that assets have been concealed or improperly 
transferred by the debtor; and
    (5) The availability of assets or income that may be realized by 
enforced collection proceedings.
    (c) DOE will verify the debtor's claim of inability to pay by using 
a credit report and other financial information as provided in paragraph 
(g) of this section. DOE will consider the applicable exemptions 
available to the debtor under state and Federal law in determining the 
Government's ability to enforce collection. DOE may also consider 
uncertainty as to the price that collateral or other property will bring 
at a forced sale in determining the Government's ability to enforce 
collection. A compromise effected under this section should be for an 
amount that bears a reasonable relation to the amount that can be 
recovered by enforced collection procedures, with regard to the 
exemptions available to the debtor and the time that collection will 
take.
    (d) If there is significant doubt concerning the Government's 
ability to prove its case in court for the full amount claimed, either 
because of the legal issues involved or because of a bona fide dispute 
as to the facts, then the amount accepted in compromise of such cases 
should fairly reflect the probabilities of successful prosecution to 
judgment, with due regard given to the availability of witnesses and 
other evidentiary support for the Government's claim. In determining the 
litigative risks involved, DOE will consider the probable amount of 
court costs and attorney fees pursuant to the Equal Access to Justice 
Act, 28 U.S.C. 2412, that may be imposed against the Government if it is 
unsuccessful in litigation.
    (e) DOE may compromise a debt if the cost of collecting the debt 
does not justify the enforced collection of the full amount. The amount 
accepted in compromise in such cases may reflect an appropriate discount 
for the administrative and litigative costs of collection, with 
consideration given to the time it will take to effect collection. 
Collection costs may be a substantial factor in the settlement of small 
debts. In determining whether the cost of collecting justifies enforced 
collection of the full amount, DOE should consider whether continued 
collection of the debt, regardless of cost, is necessary to further an 
enforcement principle, such as the Government's willingness to pursue 
aggressively defaulting and uncooperative debtors.
    (f) DOE generally will not accept compromises payable in 
installments. This is not an advantageous form of compromise in terms of 
time and administrative expense. If, however, payment of a compromise in 
installments is necessary, DOE will obtain a legally

[[Page 835]]

enforceable, written agreement providing that, in the event of default, 
the full original principal balance of the debt prior to compromise, 
less sums paid thereon, is reinstated. Whenever possible, DOE also will 
obtain security for repayment in the manner set forth in subpart B of 
this part.
    (g) To assess the merits of a compromise offer based in whole or in 
part on the debtor's inability to pay the full amount of a debt within a 
reasonable time, DOE will, if feasible, obtain a current financial 
statement from the debtor, executed under penalty of perjury, showing 
the debtor's assets, liabilities, income, and expenses. DOE also may 
obtain credit reports or other financial information to assess 
compromise offers. DOE may use its own financial information form or may 
request suitable forms from the DOJ or the local United States 
Attorney's Office.



Sec. 1015.303  Enforcement policy.

    Pursuant to this part, DOE may compromise statutory penalties, 
forfeitures, or claims established as an aid to enforcement and to 
compel compliance, if DOE's enforcement policy in terms of deterrence 
and securing compliance, present and future, will be adequately served 
by DOE's acceptance of the sum to be agreed upon.



Sec. 1015.304  Joint and several liability.

    (a) When two or more debtors are jointly and severally liable, DOE 
will pursue collection activity against all debtors, as appropriate. DOE 
will not attempt to allocate the burden of payment between the debtors, 
but will proceed to liquidate the indebtedness as quickly as possible.
    (b) DOE will seek to ensure that a compromise agreement with one 
debtor does not release DOE's claim against the remaining debtors. The 
amount of a compromise with one debtor shall not be considered a 
precedent or binding in determining the amount that will be required 
from other debtors jointly and severally liable on the claim.



Sec. 1015.305  Further review of compromise offers.

    If DOE is uncertain whether to accept a firm, written, substantive 
compromise offer on a debt that is within DOE's delegated compromise 
authority, it may refer the offer to the Civil Division or other 
appropriate litigating division in the DOJ, using a CCLR accompanied by 
supporting data and particulars concerning the debt. The DOJ may act 
upon such an offer or return it to DOE with instructions or advice.



Sec. 1015.306  Consideration of tax consequences to the Government.

    In negotiating a compromise, DOE will consider the tax consequences 
to the Government. In particular, DOE will consider requiring a waiver 
of tax-loss-carry-forward and tax-loss-carry-back rights of the debtor. 
For information on discharge of indebtedness reporting requirements see 
Sec. 1015.405 of this part.



Sec. 1015.307  Mutual releases of the debtor and the Government.

    In all appropriate instances, a compromise that is accepted by DOE 
will be implemented by means of a mutual release, in which the debtor is 
released from further non-tax liability on the compromised debt in 
consideration of payment in full of the compromise amount and the 
Government and its officials, past and present, are released and 
discharged from any and all claims and causes of action arising from the 
same transaction that the debtor may have. In the event a mutual release 
is not executed when a debt is compromised, unless prohibited by law, 
the debtor is still deemed to have waived any and all claims and causes 
of action against the Government and its officials related to the 
transaction giving rise to the compromised debt.



  Subpart D_Standards for Suspending or Terminating Collection Activity



Sec. 1015.400  Scope.

    The subpart sets forth the standards for terminating collection 
activity. This subpart corresponds to 31 CFR part 903 of the Treasury 
Federal Claims Collection Standards.

[[Page 836]]



Sec. 1015.401  Scope and application.

    (a) The standards set forth in this subpart apply to the suspension 
or termination of collection activity pursuant to 31 U.S.C. 3711 on 
debts that do not exceed $100,000, or such other amount as the Attorney 
General may direct, exclusive of interest, penalties, and administrative 
costs, after deducting the amount of partial payments or collections, if 
any. Prior to referring a debt to the DOJ for litigation, DOE may 
suspend or terminate collection under this part with respect to debts 
arising out of activities of, or referred to, DOE.
    (b) If, after deducting the amount of any partial payments or 
collections, the principal amount of a debt exceeds $100,000, or such 
other amount as the Attorney General may direct, exclusive of interest, 
penalties, and administrative costs, the authority to suspend or 
terminate rests solely with the DOJ. If DOE believes that suspension or 
termination of any debt in excess of $100,000 may be appropriate, DOE 
shall refer the debt to the Civil Division or other appropriate 
litigating division in the DOJ, using the CCLR. The referral should 
specify the reasons for DOE's recommendation. If, prior to referral to 
the DOJ, DOE determines that a debt is plainly erroneous or clearly 
without legal merit, DOE may terminate collection activity regardless of 
the amount involved without obtaining DOJ concurrence.



Sec. 1015.402  Suspension of collection activity.

    (a) DOE may suspend collection activity on a debt when:
    (1) DOE cannot locate the debtor;
    (2) The debtor's financial condition is expected to improve; or
    (3) The debtor has requested a waiver or review of the debt.
    (b) Based on the current financial condition of the debtor, DOE may 
suspend collection activity on a debt when the debtor's future prospects 
justify retention of the debt for periodic review and collection 
activity and:
    (1) The applicable statute of limitations has not expired; or
    (2) Future collection can be effected by administrative offset, 
notwithstanding the expiration of the applicable statute of limitations 
for litigation of claims, with due regard to the 10-year limitation for 
administrative offset prescribed by 31 U.S.C. 3716(e)(1); or
    (3) The debtor agrees to pay interest on the amount of the debt on 
which collection will be suspended, and such suspension is likely to 
enhance the debtor's ability to pay the full amount of the principal of 
the debt with interest at a later date.
    (c)(1) DOE shall suspend collection activity during the time 
required for consideration of the debtor's request for waiver or 
administrative review of the debt if the statute under which the request 
is sought prohibits DOE from collecting the debt during that time. As 
indicated in Sec. 1015.212(h), DOE will continue to accrue interest, 
penalties, and administrative costs during the period collection 
activity is suspended.
    (2) If the statute under which the request is sought does not 
prohibit collection activity pending consideration of the request, DOE 
may use discretion, on a case-by-case basis, to suspend collection. 
Further, DOE ordinarily will suspend collection action upon a request 
for waiver or review if DOE is prohibited by statute or regulation from 
issuing a refund of amounts collected prior to DOE's consideration of 
the debtor's request. However, DOE will not suspend collection when DOE 
determines that the request for waiver or review is frivolous or was 
made primarily to delay collection.
    (d) When DOE learns that a bankruptcy petition has been filed with 
respect to a debtor, in most cases the collection activity on a debt 
must be suspended, pursuant to the provisions of 11 U.S.C. 362, 1201, 
and 1301, unless DOE can clearly establish that the automatic stay has 
been lifted or is no longer in effect. DOE will seek legal advice 
immediately from counsel and, if legally permitted, take the necessary 
legal steps to ensure that no funds or money is paid by DOE to the 
debtor until relief from the automatic stay is obtained.



Sec. 1015.403  Termination of collection activity.

    (a) DOE may terminate collection activity when:

[[Page 837]]

    (1) DOE is unable to collect any substantial amount through its own 
efforts or through the efforts of others;
    (2) DOE is unable to locate the debtor;
    (3) Costs of collection are anticipated to exceed the amount 
recoverable;
    (4) The debt is legally without merit, or enforcement of the debt is 
barred by any applicable statute of limitations;
    (5) The debt cannot be substantiated; or
    (6) The debt against the debtor has been discharged in bankruptcy.
    (b) Before terminating collection activity, DOE will have pursued 
all appropriate means of collection and determined, based upon the 
results of the collection activity, that the debt is uncollectible. 
Termination of collection activity ceases active collection of the debt. 
The termination of collection activity does not preclude DOE from 
retaining a record of the account for purposes of:
    (1) Selling the debt, if Treasury determines that such sale is in 
the best interests of the United States;
    (2) Pursuing collection at a subsequent date in the event there is a 
change in the debtor's status or a new collection tool becomes 
available;
    (3) Offsetting against future income or assets not available at the 
time of termination of collection activity; or
    (4) Screening future applicants for prior indebtedness.
    (c) Generally, DOE shall terminate collection activity on a debt 
that has been discharged in bankruptcy, regardless of the amount. DOE 
may continue collection activity, however, subject to the provisions of 
the Bankruptcy Code, for any payments provided under a plan of 
reorganization. Offset and recoupment rights may survive the discharge 
of the debtor in bankruptcy and, under some circumstances, claims also 
may survive the discharge. For example, if DOE is a known creditor of a 
debtor, its claims may survive a discharge if DOE did not receive formal 
notice of the proceedings. DOE will seek legal advice from counsel if it 
believes it has claims or offsets that may survive the discharge of a 
debtor.



Sec. 1015.404  Exception to termination.

    When a significant enforcement policy is involved, or recovery of a 
judgment is a prerequisite to the imposition of administrative 
sanctions, DOE may refer debts for litigation even though termination of 
collection activity may otherwise be appropriate.



Sec. 1015.405  Discharge of indebtedness; reporting requirements.

    (a) Before discharging a delinquent debt (also referred to as a 
close out of the debt), DOE shall take all appropriate steps to collect 
the debt in accordance with 31 U.S.C. 3711(g), including, as applicable, 
administrative offset, tax refund offset, Federal salary offset, 
referral to Treasury, Treasury-designated debt collection centers or 
private collection contractors, credit bureau reporting, wage 
garnishment, litigation, and foreclosure. Discharge of indebtedness is 
distinct from termination or suspension of collection activity under 
Sec. 1015.400 of this part and is governed by the Internal Revenue 
Code. When collection action on a debt is suspended or terminated, the 
debt remains delinquent and further collection action may be pursued at 
a later date in accordance with the standards set forth in this subpart. 
When DOE discharges a debt in full or in part, further collection action 
is prohibited. Therefore, DOE will make the determination that 
collection action is no longer warranted before discharging a debt. 
Before discharging a debt, DOE must terminate debt collection action.
    (b) 31 U.S.C. 3711(i) requires DOE to sell a delinquent non-tax debt 
upon termination of collection action if Treasury determines such a sale 
is in the best interests of the United States. Since the discharge of a 
debt precludes any further collection action (including the sale of a 
delinquent debt), DOE may not discharge a debt until the requirements of 
31 U.S.C. 3711(i) have been met.
    (c) Upon discharge of an indebtedness, DOE must report the discharge 
to the IRS in accordance with the requirements of 26 U.S.C. 6050P and 26 
CFR 1.6050P-1. DOE may request Treasury or Treasury-designated debt 
collection centers to file such a discharge report to the IRS on DOE's 
behalf.

[[Page 838]]

    (d) When discharging a debt, DOE must request that litigation 
counsel release any liens of record securing the debt.



            Subpart E_Referrals to the Department of Justice



Sec. 1015.500  Scope.

    This subpart sets forth the standards for referrals to the 
Department of Justice. This subpart corresponds to 31 CFR part 904 of 
the Treasury Federal Claims Collection Standards.



Sec. 1015.501  Referrals to the Department of Justice and the Department of the Treasury's Cross-Servicing Program.

    (a) DOE may authorize Treasury to refer a delinquent debt to the DOJ 
for litigation in accordance with 31 U.S.C. 3711(g), the DCIA, the 
revised Federal Claims Collection Standards (31 CFR parts 900-904), and 
other applicable authorities. DOE shall ensure that all of the rights 
and protections afforded to the debtor under 31 U.S.C. 3711(e) have been 
fulfilled.
    (b) As described in Sec. 1015.201(e), under the DCIA (31 U.S.C. 
3711(g)), DOE is required to transfer all debts over 180 days delinquent 
to Treasury for purposes of debt collection (i.e., cross-servicing). As 
part of its regular debt collection procedures, Treasury will refer 
debts to the DOJ for litigation on behalf of DOE.



Sec. 1015.502  Prompt referral.

    (a) If a debt is not referred to the DOJ through Treasury's cross-
servicing program, DOE shall promptly refer to the DOJ for litigation 
debts on which aggressive collection activity has been taken in 
accordance with Sec. 1015.200 of this part and that cannot be 
compromised, or on which collection activity cannot be suspended or 
terminated, in accordance with Sec. Sec. 1015.300 and 1015.400 of this 
part. DOE may refer those debts arising out of activities of DOE. Debts 
for which the principal amount is over $1,000,000, or such other amount 
as the Attorney General may direct, exclusive of interest and penalties, 
shall be referred to the Civil Division or other division responsible 
for litigating such debts at the DOJ, Washington, DC. Debts for which 
the principal amount is $1,000,000, or less, or such other amount as the 
Attorney General may direct, exclusive of interest or penalties, shall 
be referred to the DOJ's Nationwide Central Intake Facility as required 
by the CCLR instructions. Claims will be referred as early as possible, 
consistent with aggressive agency collection activity and the observance 
of the standards contained in the Federal Claims Collection Standards 
(31 CFR parts 900-904), and, in any event, well within the period for 
initiating timely lawsuits against the debtors. DOE shall make every 
effort to refer delinquent debts to the DOJ for litigation within one 
year of the date such debts last became delinquent. In the case of 
guaranteed or insured loans, DOE will make every effort to refer these 
delinquent debts to the DOJ for litigation within one year from the date 
the loan was presented to DOE for payment or re-insurance.
    (b) The DOJ has exclusive jurisdiction over the debts referred to it 
pursuant to this section. DOE shall refrain from having any contact with 
the debtor and shall direct all debtor inquiries concerning the claim to 
the DOJ. DOE shall notify the DOJ immediately of any payments credited 
by DOE to the debtor's account after referral of a debt or claim under 
this section. The DOJ shall notify DOE, in a timely manner, of any 
payments it receives from the debtor.



Sec. 1015.503  Claims Collection Litigation Report.

    (a) Unless excepted by the DOJ, DOE shall complete the CCLR (see 
Sec. 1015.301 of this part), accompanied by a signed Certificate of 
Indebtedness, to refer all administratively uncollectible claims to the 
DOJ for litigation. DOE shall complete all of the sections of the CCLR 
appropriate to each claim as required by the CCLR instructions and 
furnish such other information as may be required in specific cases.
    (b) DOE shall indicate clearly on the CCLR the actions it wishes the 
DOJ to take with respect to the referred claim. The CCLR permits DOE to 
indicate specifically any of a number of litigative activities which the 
DOJ

[[Page 839]]

may pursue, including enforced collection, judgment lien only, renew 
judgment lien only, renew judgment lien and enforce collection, program 
enforcement, foreclosure only, and foreclosure and deficiency judgment.
    (c) DOE also shall use the CCLR to refer claims to the DOJ to obtain 
the DOJ's approval of any proposals to compromise the claims or to 
suspend or terminate DOE collection activity.



Sec. 1015.504  Preservation of evidence.

    DOE will take care to preserve all files and records that may be 
needed by the DOJ to prove its claims in court. DOE ordinarily will 
include certified copies of the documents that form the basis for the 
claim in the packages referring its claims to the DOJ for litigation. 
DOE shall provide originals of such documents immediately upon request 
by the DOJ.



Sec. 1015.505  Minimum amount of referrals to the Department of Justice.

    (a) DOE shall not refer for litigation claims of less than $2,500, 
exclusive of interest, penalties, and administrative costs, or such 
other amount as the Attorney General shall from time to time prescribe. 
The DOJ promptly shall notify DOE if the Attorney General changes this 
minimum amount.
    (b) DOE shall not refer claims of less than the minimum amount 
unless:
    (1) Litigation to collect such smaller claims is important to ensure 
compliance with DOE's policies or programs;
    (2) The claim is being referred solely for the purpose of securing a 
judgment against the debtor, which will be filed as a lien against the 
debtor's property pursuant to 28 U.S.C. 3201 and returned to DOE for 
enforcement; or
    (3) The debtor has the clear ability to pay the claim and the 
Government effectively can enforce payment, with due regard for the 
exemptions available to the debtor under state and Federal law and the 
judicial remedies available to the Government.
    (4) DOE will consult with the Financial Litigation Staff of the 
Executive Office for United States Attorneys in the DOJ prior to 
referring claims valued at less than the minimum amount.



PART 1016_SAFEGUARDING OF RESTRICTED DATA--Table of Contents



                           General Provisions

Sec.
1016.1 Purpose.
1016.2 Scope.
1016.3 Definitions.
1016.4 Communications.
1016.5 Submission of procedures by access permit holder.
1016.6 Specific waivers.
1016.7 Interpretations.

                            Physical Security

1016.8 Approval for processing access permittees for security facility 
          approval.
1016.9 Processing security facility approval.
1016.10 Grant, denial, or suspension of security facility approval.
1016.11 Cancellation of requests for security facility approval.
1016.12 Termination of security facility approval.
1016.21 Protection of Restricted Data in storage.
1016.22 Protection while in use.
1016.23 Establishment of security areas.
1016.24 Special handling of classified material.
1016.25 Protective personnel.

                         Control of Information

1016.31 Access to Restricted Data.
1016.32 Classification and preparation of documents.
1016.33 External transmission of documents and material.
1016.34 Accountability for Secret Restricted Data.
1016.35 Authority to reproduce Restricted Data.
1016.36 Changes in classification.
1016.37 Destruction of documents or material containing Restricted Data.
1016.38 Suspension or revocation of access authorization.
1016.39 Termination, suspension, or revocation of security facility 
          approval.
1016.40 Termination of employment or change of duties.
1016.41 Continued applicability of the regulations in this part.
1016.42 Reports.
1016.43 Inspections.
1016.44 Violations.

    Authority: Sec. 161i of the Atomic Energy Act of 1954, 68 Stat. 948 
(42 U.S.C. 2201).

    Source: 48 FR 36432, Aug. 10, 1983, unless otherwise noted.

[[Page 840]]

                           General Provisions



Sec. 1016.1  Purpose.

    The regulations in this part establish requirements for the 
safeguarding of Secret and Confidential Restricted Data received or 
developed under an access permit. This part does not apply to Top Secret 
information since no such information may be forwarded to an access 
permittee within the scope of this regulation.



Sec. 1016.2  Scope.

    The regulations in this part apply to all persons who may require 
access to Retricted Data used, processed, stored, reproduced, 
transmitted, or handled in connection with an access permit.



Sec. 1016.3  Definitions.

    (a) Access authorization or security clearance. An administrative 
determination by the DOE that an individual who is either a DOE 
employee, applicant for employment, consultant, assignee, other Federal 
department or agency employee (and other persons who may be designated 
by the Secretary of Energy), or a DOE contractor or subcontractor 
employee and an access permittee is eligible for access to Restricted 
Data. Access authorizations or security clearances granted by DOE are 
designated as ``Q,'' ``Q(X),'' ``L,'' ``L(X),'' ``Top Secret,'' or 
``Secret.'' For the purpose of this chapter only ``Q,'' ``Q(X),'' ``L,'' 
and ``L(X)'' access authorizations or clearances will be defined.
    (1) ``Q'' access authorizations or clearances are based upon full 
field investigations conducted by the Federal Bureau of Investigation, 
Office of Personnel Management, or another Government agency which 
conducts personnel security investigations. They permit an individual to 
have access, on a ``need to know'' basis, to Top Secret, Secret, and 
Confidential Restricted Data, Formerly Restricted Data, National 
Security Information, or special nuclear material in Category I or II 
quantities as required in the performance of duties.
    (2) ``Q(X)'' access authorizations or clearances are based upon the 
same full field investigations as described in Sec. 1016.3(a)(1), 
above. When ``Q'' access authorizations or clearances are granted to 
access permittees they are identified as ``Q(X)'' access authorizations 
or clearances and authorize access only to the type of Secret Restricted 
Data as specified in the permit and consistent with appendix A, 10 CFR 
part 725, ``Categories of Restricted Data Available.''
    (3) ``L'' access authorizations or clearances are based upon 
National Agency Checks and Inquiries (NACI) for Federal employees, or 
National Agency Checks (NAC) for non-Federal employees, conducted by the 
Office of Personnel Management. They permit an individual to have 
access, on a ``need to know'' basis, to Confidential Restricted Data, 
Secret and Confidential Formerly Restricted Data, or Secret and 
Confidential National Security Information, required in the performance 
of duties, provided such information is not designated ``CRYPTO'' 
(classified cryptographic information), other classified communications 
security (``COMSEC'') information, or intelligence information.
    (4) ``L(X)'' access authorizations or clearances are based upon the 
same National Agency Checks as described in paragraph (a)(3), of this 
section. When ``L'' access authorizations or clearances are granted to 
access permittees, they are identified as ``L(X)'' access authorizations 
or clearances and authorize access only to the type of Confidential 
Retricted Data as specified in the permit and consistent with appendix 
A, 10 CFR part 725, ``Categories of Restricted Data Available.''
    (b) Act. The Atomic Energy Act of 1954 (68 Stat. 919) as amended.
    (c) Authorized classifier. An individual authorized in writing by 
appropriate DOE authority to classify, declassify, or downgrade the 
classification of information, work, projects, documents, and materials.
    (d) Classified mail address. A mail address established for each 
access permittee approved by the DOE to which all Restricted Data for 
the permittee is to be sent.
    (e) Classified matter. Documents and material containing classified 
information.
    (f) Combination lock. A built-in combination lock on a security 
container which is of tempered steel alloy hard plate, at least \1/
4\ in thickness and

[[Page 841]]

Rockwell hardness of C-63 to C-65, of sufficient size and so located as 
to sufficiently impede access to the locking mechanism by drilling of 
the lock or container.
    (g) DOE. The United States Department of Energy or its duly 
authorized representatives.
    (h) Document. Any piece of recorded information regardless of its 
physical form or characteristics.
    (i) Formerly Restricted Data. Classified information jointly 
determined by the DOE and the Department of Defense to be related 
primarily to the military utilization of atomic weapons and removed by 
the DOE from the Restricted Data category pursuant to section 142(d) of 
the Atomic Energy Act of 1954, as amended.
    (j) Infraction. An act or omission involving failure to comply with 
DOE safeguards and security orders or directives, and may include a 
violation of law.
    (k) Intrusion alarm. A tamper-indicating electrical, electro-
mechanical, electro-optical, electronic or similar device which will 
detect unauthorized intrusion by an individual into a building or 
security area, and alert protective personnel by means of actuated 
visible and audible signals.
    (l) Material. A chemical substance without regard to form; 
fabricated or processed item; or assembly, machinery, or equipment.
    (m) Matter. Documents or material.
    (n) National Security. The national defense and foreign relations of 
the United States.
    (o) National Security Information. Information that has been 
determined pursuant to Executive Order 12958, as amended ``Classified 
National Security Information'' and Executive Order 13292 ``Further 
Amendment to Executive Order 12958, as Amended, Classified National 
Security Information'' or any predecessor order to require protection 
against unauthorized disclosure and that is so designated.
    (p) ``Need to know.'' A determination by persons having 
responsibility for classified information or mattter, that a proposed 
recipient's access to such classified information or matter is necessary 
in the performance of official, contractual, or access permit duties of 
employment under cognizance of the DOE.
    (q) Permittee. The holder of an Access Permit issued pursuant to the 
regulations set forth in 10 CFR part 725, ``Permits For Access to 
Restricted Data.''
    (r) Person. Any individual, corporation, partnership, firm, 
association, trust, estate, public or private institution, group, 
Government agency other than DOE, any State or any political subdivision 
of, or any political entity within a State, or other entity; and any 
legal successor, representative, agency, or agency of the foregoing.
    (s) Protective personnel. Guards or watchmen or other persons 
designated responsibility for the protection of classified matter.
    (t) Restricted Data. All data concerning design, manufacture, or 
utilization of atomic weapons; the production of special nuclear 
material; or the use of special nuclear material in the production of 
energy, but shall not include data declassified or removed from the 
Restricted Data category pursuant to section 142 of the Act.
    (u) Security area. A physically defined space containing classified 
matter and subject to physical protection and personnel access controls.
    (v) Security clearance. See access authorization.
    (w) Security facility. Any facility, including an access permittee, 
which has been approved by the DOE for using, processing, storing, 
reproducing, transmitting, or handling classified matter.
    (x) Security facility approval. A determination by the DOE that a 
facility, including an access permittee, is eligible to use, process, 
store, reproduce, transmit, or handle classified matter.
    (y) Security Plan. A written plan by the access permittee, and 
submitted to the DOE for approval, which outlines the permittee's 
proposed security procedures and controls for the protection of 
Restricted Data and which includes a floor plan of the area in which the 
matter is to be used, processed, stored, reproduced, transmitted, or 
handled.
    (z) Security survey. An onsite examination by a DOE representative 
of all

[[Page 842]]

devices, equipment, and procedures employed at a security facility to 
safeguard classified matter.

[48 FR 36432, Aug. 10, 1983, as amended at 71 FR 68735, Nov. 28, 2006]



Sec. 1016.4  Communications.

    Communications concerning rulemaking, i.e., petition to change part 
1016, should be addressed to the Chief Health, Safety and Security 
Officer, HS-1/Forrestal Building, Office of Health, Safety and Security, 
U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 
20585. All other communications concerning the regulations in this part 
should be addressed to the cognizant DOE or National Nuclear Security 
Administration (NNSA) office.

[71 FR 68735, Nov. 28, 2006]



Sec. 1016.5  Submission of procedures by access permit holder.

    No access permit holder shall have access to Restricted Data until 
he shall have submitted to the DOE a written statement of his procedures 
for the safeguarding of Restricted Data and for the security education 
of his employees, and DOE shall have determined and informed the 
permittee that his procedures for the safeguarding of Restricted Data 
are in compliance with the regulations in this part and that his 
procedures for the security education of his employees, who will have 
access to Restricted Data, are informed about and understand the 
regulations in this part.



Sec. 1016.6  Specific waivers.

    DOE may, upon application of any interested party, grant such 
waivers from the requirements of this part as it determines are 
authorized by law and will not constitute an undue risk to the common 
defense and security.



Sec. 1016.7  Interpretations.

    Except as specifically authorized by the Secretary of Energy in 
writing, no interpretation of the meaning of the regulations in this 
part by any officer or employee of DOE other than a written 
interpretation by the General Counsel will be recognized to be binding 
upon DOE.

                            Physical Security



Sec. 1016.8  Approval for processing access permittees for security facility approval.

    (a) An access permittee who has a need to use, process, store, 
reproduce, transmit, or handle Restricted Data at any location in 
connection with its permit shall promptly request a DOE security 
facility approval.
    (b) The request shall include the following information: The name 
and address of the permittee; the extent and scope of the classified 
activity and the highest classification of Restricted Data to be 
received; a written statement in the form of a security plan which 
outlines the permittee's proposed security procedures and controls for 
the protection of Restricted Data, including a floor plan of the 
areas(s) in which the classified matter is to be used, processed, 
stored, reproduced, transmitted, and handled.
    (c) The DOE will promptly inform the permittee of the acceptability 
of the request for further processing and will notify the permittee of 
its decision in writing.



Sec. 1016.9  Processing security facility approval.

    The following receipt of an acceptable request for security facility 
approval, the DOE will perform an initial security survey of the 
permittee's facility to determine that granting a security facility 
approval would be consistent with the national security. If DOE makes 
such a determination, security facility approval will be granted. If 
not, security facility approval will be withheld pending compliance with 
the security survey recommendations or until a waiver is granted 
pursuant to Sec. 1016.6 of this part.



Sec. 1016.10  Grant, denial, or suspension of security facility approval.

    Notification of the DOE's grant, denial, or suspension of security 
facility approval will be furnished the permittee in writing, or orally 
with written confirmation. This information may also be furnished to 
representatives of the DOE, DOE contractors, or other Federal agencies 
having a need

[[Page 843]]

to transmit Restricted Data to the permittee.



Sec. 1016.11  Cancellation of requests for security facility approval.

    When a request for security facility approval is to be withdrawn or 
cancelled, the DOE Operations Office will be notified by the requester 
immediately by telephone and confirmed in writing so that processing of 
this approval may be terminated.



Sec. 1016.12  Termination of security facility approval.

    Security facility approval will be terminated when:
    (a) There is no longer a need to use, process, store, reproduce, 
transmit, or handle Restricted Data at the facility; or
    (b) The DOE makes a determination that continued security facility 
approval is not in the interest of national security.

In such cases the permittee will be notified in writing of the 
determination, and the procedures outlined in Sec. 1016.39 of this part 
will apply.



Sec. 1016.21  Protection of Restricted Data in storage.

    (a) Persons who possess Restricted Data pursuant to an Access Permit 
shall store Secret and Confidential documents and material when not in 
use in accordance with one of the following methods:
    (1) In a locked vault, safe, or safe-type steel file cabinet having 
a 3-position dial-type combination lock; or
    (2) In a dual key, bank safety deposit box; or
    (3) In a steel file cabinet secured by a steel lock bar and a 3-
position dial-type changeable combination padlock; or
    (4) In a locked steel file cabinet when located in a security area 
established under Sec. 1016.23 or when the cabinet or the place in 
which the cabinet is located is under DOE-approved intrusion alarm 
protection.
    (b) Changes of combination: Each permittee shall change the 
combination on locks of his safekeeping equipment whenever such 
equipment is placed in use, whenever an individual knowing the 
combination no longer requires access to the repository as a result of 
change in duties or position in the permittee's organization, or 
termination of employment with the permittee or whenever the combination 
has been subjected to compromise, and in any event at least once a year. 
Permittees shall classify records of combinations no lower than the 
highest classification of the documents and material authorized for 
storage in the safekeeping equipment concerned.
    (c) The lock on safekeeping equipment of the type specified in 
paragraph (a)(4) of this section shall be replaced immediately whenever 
a key is lost.



Sec. 1016.22  Protection while in use.

    While in use, documents and material containing Restricted Data 
shall be under the direct control of an appropriately cleared 
individual, and the Restricted Data shall be capable of being removed 
from sight immediately.



Sec. 1016.23  Establishment of security areas.

    (a) When, because of their nature or size, it is impracticable to 
safeguard documents and material containing Restricted Data in 
accordance with the provisions of Sec. Sec. 1016.21 and 1016.22, a 
security area to protect such documents and material shall be 
established.
    (b) The following controls shall apply to security areas:
    (1) Security areas shall be separated from adjacent areas by a 
physical barrier designed to prevent entrance into such areas, and 
access to the Restricted Data within the areas, by unauthorized 
individuals.
    (2) During working hours, admittance shall be controlled by an 
appropriately cleared individual posted at each unlocked entrance.
    (3) During nonworking hours, admittance shall be controlled by 
protective personnel on patrol, with protective personnel posted at 
unlocked entrances, or by such intrusion alarm system as DOE may 
approve.
    (4) Each individual authorized to enter a security area shall be 
issued a distinctive badge or pass when the number of employees assigned 
to the area exceeds thirty.

[[Page 844]]



Sec. 1016.24  Special handling of classified material.

    When the Restricted Data contained in material is not ascertainable 
by observation or examination at the place where the material is located 
and when the material is not readily removable because of size, weight, 
radioactivity, or similar factors, DOE may authorize the permittee to 
provide such lesser protection than is otherwise required by Sec. Sec. 
1016.21 to 1016.23 inclusive, as DOE determines to be commensurate with 
the difficulty of removing the material.



Sec. 1016.25  Protective personnel.

    Whenever protective personnel are required by Sec. 1016.23, such 
protective personnel shall:
    (a) Possess a ``Q'' or ``L'' security clearance or access 
authorization or ``Q(X)'' or ``L(X)'' access authorization if the 
Restricted Data being protected is classified Confidential, or a ``Q'' 
security clearance or access authorization or ``Q(X)'' access 
authorization if the Restricted Data being protected is classified 
Secret.
    (b) Be armed with sidearms of not less than .38 caliber.

                         Control of Information



Sec. 1016.31  Access to Restricted Data.

    (a) Except as DOE may authorize, no person subject to the 
regulations in this part shall permit any individual to have access to 
Secret or Confidential Restricted Data in his possession unless the 
individual has an appropriate security clearance or access authorization 
granted by DOE, or has been certified by DOD or NASA through DOE, and;
    (1) The individual is authorized by an Access Permit to receive 
Restricted Data in the categories involved and, in the case of Secret 
Restricted Data, the permittee determines that such access is required 
in the course of his duties, or
    (2) The individual needs such access in connection with such duties 
as a DOE employee or DOE contractor employee, or as certified by DOD or 
NASA.
    (b) Inquiries concerning the clearance status of individuals, the 
scope of Access Permits, or the nature of contracts should be addressed 
to the cognizant DOE or NNSA office.

[48 FR 36432, Aug. 10, 1983, as amended at 71 FR 68735, Nov. 28, 2006]



Sec. 1016.32  Classification and preparation of documents.

    (a) Classification. Restricted Data generated or possessed by an 
Access Permit holder must be appropriately marked. CG-UF-3, ``Guide to 
the Unclassified Fields of Research,'' will be furnished each permittee. 
In the event a permittee originates classified information which falls 
within the definition of Restricted Data or information which he is not 
positive is not within that definition and CG-UF-3 does not provide 
positive classification guidance for such information, he shall 
designate the information as Confidential, Restricted Data and request 
classification guidance from the DOE through the Classification Officer 
at the cognizant DOE or NNSA office, who will refer the request to the 
Director, Office of Classification, HS-90/Germantown Building, Office of 
Health, Safety and Security, U.S. Department of Energy, 1000 
Independence Avenue, SW., Washington, DC 20585-1290 if he does not have 
authority to provide the guidance.
    (b) Classification consistent with content. Each document containing 
Restricted Data shall be classified Secret or Confidential according to 
its own content.
    (c) Document which custodian believes improperly classified or 
lacking appropriate classification markings. If a person receives a 
document which, in his opinion, is not properly classified, or omits the 
appropriate classification markings, he shall communicate with the 
sender and suggest the classification which he believes appropriate. 
Pending final determination of proper classification, such documents 
shall be safeguarded with the highest classification in question.
    (d) Classification markings. Unless otherwise authorized below, the 
assigned classification of a document shall be conspicuously marked or 
stamped at the top and bottom of each page and on

[[Page 845]]

the front cover, if any, and the document shall bear the following 
additional markings on the first page and on the front cover:

                             Restricted Data

    This document contains Restricted Data as defined in the Atomic 
Energy Act of 1954. Its transmittal or the disclosure of its contents in 
any manner to an unauthorized person is prohibited.

    (e) Documentation. (1) All Secret documents shall bear on the first 
page a properly completed documentation stamp such as the following: 
This document consists of -- pages. Copy No. -- of -- Series --.
    (2) The series designation shall be a capital letter beginning with 
the letter ``A'' designating the original set of copies prepared. Each 
subsequent set of copies of the same documents shall be identified by 
the succeeding letter of the alphabet.
    (f) Letter of transmittal. A letter of transmitting Restricted Data 
shall be marked with a classification at least as high as its highest 
classified enclosure. When the contents of the letter of transmittal 
warrant lower classification or requires no classification, a stamp or 
marking such as the following shall be used in the letter:

When separated from enclosures handle this document as ----.
    (g) Permanently fastened documents. Classified books or pamphlets, 
the pages of which are permanently and securely fastened together, shall 
be conspicuously marked or stamped with the assigned classification in 
letters at least one-fourth (\1/4\) inch in height at the top and bottom 
on the outside front cover, on the title page, on the front page, and on 
the inside and outside of the back cover. The additional markings 
referred to in paragraph (d) of this section shall be placed on the 
first page and on the front cover.
    (h) Physically connected documents. The classification of a file or 
group of physically connected documents shall be at least as high as 
that of the most highly classified document therein. It shall bear only 
one overall classification, although pages, paragraphs, sections, or 
components thereof may bear different classifications. Each document 
separated from the file or group shall be handled in accordance with its 
individual classification.
    (i) Attachment of security markings. Documents which do not lend 
themselves to marking or stamping shall have securely affixed or 
attached a tag, sticker, or similar device bearing the appropriate 
security markings.

[48 FR 36432, Aug. 10, 1983, as amended at 71 FR 68735, Nov. 28, 2006]



Sec. 1016.33  External transmission of documents and material.

    (a) Restrictions. (1) Documents and material containing Restricted 
Data shall be transmitted only to persons who possess appropriate 
clearance or access authorization and are otherwise eligible for access 
under the requirements of Sec. 1016.31.
    (2) In addition, such documents and material shall be transmitted 
only to persons who possess facilities for their physicial security 
consistent with this part. Any person subject to the regulations in this 
part who transmits such documents or material shall be deemed to have 
fulfilled his obligations under this subparagraph by securing a written 
certification from the prospective recipient that such recipient 
possesses facilities for its physical security consistent with this 
part.
    (3) Documents and material containing Restricted Data shall not be 
exported from the United States without prior authorization of DOE.
    (b) Preparation of documents. Documents containing Restricted Data 
shall be prepared for transmission outside an individual installation in 
accordance with the following:
    (1) They shall be enclosed in two sealed, opaque envelopes or 
wrappers.
    (2) The inner envelope or wrapper shall be addressed in the ordinary 
manner and sealed with tape, the appropriate classification shall be 
placed on both sides of the envelope, and the additional marking 
referred to in Sec. 1016.32(d) shall be placed on the side bearing the 
address.
    (3) The outer envelope or wrapper shall be addressed in the ordinary 
manner. No classification, additional marking, or other notation shall 
be affixed which indicates that the document enclosed therein contains 
classified information or Restricted Data.

[[Page 846]]

    (4) A receipt which identifies the document, the date of transfer, 
the recipient, and the person transferring the document shall accompany 
the document and shall be signed by the recipient and returned to the 
sender whenever the custody of a Secret document is transferred.
    (c) Preparation of material. Material, other than documents, 
containing Restricted Data shall be prepared for shipment outside an 
individual installation in accordance with the following:
    (1) The material shall be so packaged that the classified 
characteristics will not be revealed.
    (2) A receipt which identifies the material, the date of shipment, 
the recipient, and the person transferring the material shall accompany 
the material, and the recipient shall sign such receipt whenever the 
custody of Secret material is transferred.
    (d) Methods of transportation. (1) Secret matter shall be 
transported only by one of the following methods:
    (i) By messenger-courier system specifically created for that 
purpose.
    (ii) Registered mail.
    (iii) By protective services provided by United States air or 
surface commercial carriers under such conditions as may be preserved by 
the DOE.
    (iv) Individuals possessing appropriate DOE security clearance or 
access authorization who have been given written authority by their 
employers.
    (2) Confidential matter may be transported by one of the methods set 
forth in paragraph (d)(1) of this section or by U.S. first class, 
express, or certified mail.
    (e) Telecommunication of classified information. There shall be no 
telecommunication of Restricted Data unless the secure telecommunication 
system has been approved by the DOE.
    (f) Telephone conversations. Classified information shall not be 
discussed over the telephone.



Sec. 1016.34  Accountability for Secret Restricted Data.

    Each permittee possessing documents containing Secret Restricted 
Data shall establish a document accountability procedure and shall 
maintain records to show the disposition of all such documents which 
have been in his custody at any time.



Sec. 1016.35  Authority to reproduce Restricted Data.

    Secret Restricted Data will not be reproduced without the written 
permission of the originator, his successor, or high authority. 
Confidential Restricted Data may be reproduced to the minimum extent 
necessary consistent with efficient operation without the necessity for 
permission.



Sec. 1016.36  Changes in classification.

    Documents containing Restricted Data shall not be downgraded or 
declassified except as authorized by DOE. Requests for downgrading or 
declassification shall be submitted to the cognizant DOE or NNSA office 
or Office of Classification, HS-90/Germantown Building, U.S. Department 
of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-1290. If 
the appropriate authority approves a change of classification or 
declassification, the previous classification marking shall be canceled 
and the following statement, properly completed, shall be placed on the 
first page of the document:

    Classification canceled (or changed to)
________________________________________________________________________
(Insert appropriate classification)
by______________________________________________________________________
(Person authorizing change in classification)
by______________________________________________________________________
(Signature of person making change and date thereof)


Any persons making a change in classification or receiving notice of 
such a change shall forward notice of the change in classification to 
holders of all copies as shown in their records.

[48 FR 36432, Aug. 10, 1983, as amended at 71 FR 68735, Nov. 28, 2006]



Sec. 1016.37  Destruction of documents or material containing Restricted Data.

    Documents containing Restricted Data may be destroyed by burning, 
pulping, or another method that assures complete destruction of the 
information which they contain. If the document contains Secret 
Restricted

[[Page 847]]

Data, a permanent record of the subject, title, report number of the 
document, its date of preparation, its series designation and copy 
number, and the date of destruction shall be signed by the person 
destroying the document and shall be maintained in the office of the 
last custodian. Restricted Data contained in material, other than 
documents, may be destroyed only by a method that assures complete 
obliteration, removal, or destruction of the Restricted Data.



Sec. 1016.38  Suspension or revocation of access authorization.

    In any case where the access authorization of an individual subject 
to the regulations in this part is suspended or revoked in accordance 
with the procedures set forth in 10 CFR part 710, such individual shall, 
upon due notice from DOE of such suspension or revocation and demand by 
DOE, deliver to DOE any and all Restricted Data in his possession for 
safekeeping and such further disposition as DOE determines to be just 
and proper.



Sec. 1016.39  Termination, suspension, or revocation of security facility approval.

    (a) If the need to use, process, store, reproduce, transmit, or 
handle classified matter no longer exists, the security facility 
approval will be terminated. The permittee may deliver all Restricted 
Data to the DOE or to a person authorized to receive them; or the 
permittee may destroy all such Restricted Data. In either case, the 
facility must submit a certification of nonpossession of Restricted Data 
to the DOE.
    (b) In any instance where security facility approval has been 
suspended or revoked based on a determination of the DOE that further 
possession of classified matter by the permittee would endanger the 
common defense and national security, the permittee shall, upon notice 
from the DOE, immediately deliver all Restricted Data to the DOE along 
with a certificate of nonpossession of Restricted Data.



Sec. 1016.40  Termination of employment or change of duties.

    Each permittee shall furnish promptly to DOE written notification of 
the termination of employment of each individual who possesses an access 
authorization under his Permit or whose duties are changed so that 
access to Restricted Data is no longer needed. Upon such notification, 
DOE may:
    (a) Terminate the individual's access authorization, or
    (b) Transfer the individual's access authorization to the new 
employer of the individual to allow continued access to Restricted Data 
where authorized, pursuant to DOE regulations.



Sec. 1016.41  Continued applicability of the regulations in this part.

    The expiration, suspension, revocation, or other termination of a 
security clearance or access authorization or security facility approval 
shall not relieve any person from compliance with the regulations in 
this part.



Sec. 1016.42  Reports.

    Each permittee shall immediately report to the DOE office 
administering the permit any alleged or suspected violation of the 
Atomic Energy Act of 1954, as amended, Espionage Act, or other Federal 
statutes related to Restricted Data. Additionally, the permittee shall 
report any infractions, losses, compromises, or possible compromise of 
Restricted Data.



Sec. 1016.43  Inspections.

    The DOE shall make such inspections and surveys of the premises, 
activities, records, and procedures of any person subject to the 
regulations in this part as DOE deems necessary to effectuate the 
purposes of the Act, Executive Order 12958, as amended, and DOE orders 
and procedures.

[48 FR 36432, Aug. 10, 1983, as amended at 71 FR 68735, Nov. 28, 2006]



Sec. 1016.44  Violations.

    An injunction or other court order may be obtained prohibiting any 
violation of any provision of the Act or any regulation or order issued 
thereunder.

[[Page 848]]

Any person who willfully violates, attempts to violate, or conspires to 
violate any provision of the Act or any regulation or order issued 
thereunder, including the provisions of this part, may be guilty of a 
crime and upon conviction may be punished by fine or imprisonment, or 
both, as provided by law.



PART 1017_IDENTIFICATION AND PROTECTION OF UNCLASSIFIED CONTROLLED NUCLEAR INFORMATION--Table of Contents



                       Subpart A_General Overview

Sec.
1017.1 Purpose and scope.
1017.2 Applicability.
1017.3 Policy.
1017.4 Definitions.
1017.5 Requesting a deviation.

    Subpart B_Initially Determining What Information Is Unclassified 
                     Controlled Nuclear Information

1017.6 Authority.
1017.7 Criteria.
1017.8 Subject areas eligible to be Unclassified Controlled Nuclear 
          Information.
1017.9 Nuclear material determinations.
1017.10 Adverse effect test.
1017.11 Information exempt from being Unclassified Controlled Nuclear 
          Information.
1017.12 Prohibitions on identifying Unclassified Controlled Nuclear 
          Information.
1017.13 Report concerning determinations.

 Subpart C_Review of a Document or Material for Unclassified Controlled 
                           Nuclear Information

1017.14 Designated officials.
1017.15 Review process.
1017.16 Unclassified Controlled Nuclear Information markings on 
          documents or material.
1017.17 Determining that a document or material no longer contains or 
          does not contain Unclassified Controlled Nuclear Information.
1017.18 Joint documents or material.

     Subpart D_Access to Unclassified Controlled Nuclear Information

1017.19 Access limitations.
1017.20 Routine access.
1017.21 Limited access.

               Subpart E_Physical Protection Requirements

1017.22 Notification of protection requirements.
1017.23 Protection in use.
1017.24 Storage.
1017.25 Reproduction.
1017.26 Destruction.
1017.27 Transmission.
1017.28 Processing on Automated Information Systems (AIS).

                          Subpart F_Violations

1017.29 Civil penalty.
1017.30 Criminal penalty.

    Authority: 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.; 42 U.S.C. 
2168; 28 U.S.C. 2461.

    Source: 73 FR 32641, June 10, 2008, unless otherwise noted.



                       Subpart A_General Overview



Sec. 1017.1  Purpose and scope.

    (a) This part implements section 148 of the Atomic Energy Act (42 
U.S.C. 2168) which prohibits the unauthorized dissemination of certain 
unclassified Government information. This information identified by the 
term ``Unclassified Controlled Nuclear Information'' (UCNI) consists of 
certain design and security information concerning nuclear facilities, 
nuclear materials, and nuclear weapons.
    (b) This part:
    (1) Provides for the review of information prior to its designation 
as UCNI;
    (2) Describes how information is determined to be UCNI;
    (3) Establishes minimum physical protection standards for documents 
and material containing UCNI;
    (4) Specifies who may have access to UCNI; and,
    (5) Establishes a procedure for the imposition of penalties on 
persons who violate section 148 of the Atomic Energy Act or any 
regulation or order of the Secretary issued under section 148 of the 
Atomic Energy Act, including this part.
    (c) This part does not apply to information controlled under 10 
U.S.C. 128 by the Department of Defense.

[[Page 849]]



Sec. 1017.2  Applicability.

    This part applies to any person who is or was authorized access to 
UCNI, requires authorized access to UCNI, or attempts to gain or gains 
unauthorized access to UCNI.



Sec. 1017.3  Policy.

    The Department of Energy (DOE) strives to make information publicly 
available to the fullest extent possible. Therefore, this part must be 
interpreted and implemented to apply the minimum restrictions needed to 
protect the health and safety of the public or the common defense and 
security consistent with the requirement in section 148 of the Atomic 
Energy Act to prohibit the unauthorized dissemination of UCNI.



Sec. 1017.4  Definitions.

    As used in this part:
    Atomic Energy Act means the Atomic Energy Act of 1954, as amended 
(42 U.S.C. 2011 et seq.).
    Atomic energy defense programs means Government activities, 
equipment, and facilities that are capable of:
    (1) Developing, producing, testing, sampling, maintaining, 
repairing, modifying, assembling or disassembling, using, transporting, 
or retiring nuclear weapons or components of nuclear weapons; or
    (2) Producing, using, or transporting nuclear material that could be 
used in nuclear weapons or military-related utilization facilities.
    Authorized Individual means a person who has routine access to UCNI 
under Sec. 1017.20.
    Component means any operational, experimental, or research-related 
part, subsection, design, or material used in the manufacture or 
utilization of a nuclear weapon, nuclear explosive device, or nuclear 
weapon test assembly.
    Denying Official means a DOE official designated under 10 CFR 
1004.2(b) who is authorized to deny a request for unclassified 
information that is exempt from release when requested under the Freedom 
of Information Act (FOIA).
    Director means the DOE Official, or his or her designee, to whom the 
Secretary has assigned responsibility for enforcement of this part.
    Document means the physical medium on or in which information is 
recorded, regardless of its physical form or characteristics.
    DOE means the United States Department of Energy, including the 
National Nuclear Security Administration (NNSA).
    Essential technology-related information means technical information 
whose unauthorized dissemination could significantly increase the 
likelihood of the illegal production of a nuclear weapon.
    Exploitable security-related information means information whose 
unauthorized dissemination could significantly increase the likelihood 
of the theft, diversion, or sabotage of nuclear material, equipment, or 
facilities.
    Government means the Executive Branch of the United States 
Government.
    Government information means any fact or concept, regardless of its 
physical form or characteristics, that is owned by, produced by or for, 
or otherwise controlled by the United States Government, including such 
facts or concepts that are provided by the Government to any person, 
including persons who are not employees of the Government.
    Guidance means detailed written instructions that describe decisions 
made by the Secretary or his/her designee issued under Subpart B of 
these regulations concerning what specific information is UCNI.
    Illegal production means the production or manufacture of a nuclear 
weapon in violation of either domestic (e.g., the Atomic Energy Act) or 
international (e.g., the Treaty on the Non-Proliferation of Nuclear 
Weapons) law.
    In transit means the physical movement of a nuclear weapon, a 
component of a nuclear weapon containing nuclear material, or nuclear 
material from one part to another part of a facility or from one 
facility to another facility. An item is considered ``in transit'' until 
it has been relinquished to the custody of the authorized recipient and 
is in storage at its ultimate destination. An item in temporary storage 
pending shipment to its ultimate destination is ``in transit.''

[[Page 850]]

    Limited access means access to specific UCNI granted by the 
cognizant DOE Program Secretarial Officer or a Deputy or Associate 
Administrator of the NNSA to an individual not eligible for routine 
access (see Sec. 1017.21).
    Material means a product (e.g., a part or a machine) or substance 
(e.g., a compound or an alloy), regardless of its physical form or 
characteristics.
    Need to know means a determination made by an Authorized Individual 
that a person requires access to specific UCNI to perform official 
duties or other Government-authorized activities.
    Nuclear material means special nuclear material, byproduct material, 
or source material as defined by sections 11.aa., 11.e., and 11.z., 
respectively, of the Atomic Energy Act (42 U.S.C. 2014 aa., e., and z), 
or any other material used in the production, testing, utilization, or 
assembly of nuclear weapons or components of nuclear weapons that the 
Secretary determines to be nuclear material under Sec. 1017.9(a).
    Nuclear weapon means atomic weapon as defined in section 11.d. of 
the Atomic Energy Act (42 U.S.C. 2014 d).
    Person means any person as defined in section 11.s. of the Atomic 
Energy Act (42 U.S.C. 2014 s) or any affiliate or parent corporation 
thereof.
    Production facility means:
    (1) Any equipment or device capable of producing special nuclear 
material in such quantity as to be of significance to the common defense 
and security or in such manner as to affect the health and safety of the 
public; or
    (2) Any important component part especially designed for such 
equipment or device.
    (3) For the purposes of this part, equipment and devices described 
in paragraphs (1) and (2) of this definition include only:
    (i) Government uranium isotope enrichment equipment or devices and 
any other uranium isotope enrichment equipment or devices that use 
related technology provided by the Government; or
    (ii) Government plutonium production reactors, isotope enrichment 
equipment or devices, and separation and purification equipment or 
devices and other such equipment or devices that use related technology 
provided by the Government.
    Reviewing Official means an individual authorized under Sec. 
1017.14(a) to make a determination, based on guidance, that a document 
or material contains UCNI.
    Routine access means access to UCNI granted by an Authorized 
Individual to an individual eligible to receive UCNI under Sec. 1017.20 
in order to perform official duties or other Government-authorized 
activities.
    Secretary means the Secretary of Energy.
    Special nuclear material means:
    (1) Plutonium, uranium enriched in the isotope 233 or in the isotope 
235, and any other material which DOE or the Nuclear Regulatory 
Commission, pursuant to the provisions of section 51 of the Atomic 
Energy Act (42 U.S.C. 2071), determines to be special nuclear material, 
but does not include source material; or
    (2) Any material artificially enriched by any of the foregoing, but 
does not include source material.
    Unauthorized dissemination means the intentional or negligent 
transfer of UCNI to any person other than an Authorized Individual or a 
person granted limited access to UCNI under Sec. 1017.21.
    Unclassified Controlled Nuclear Information or UCNI means certain 
unclassified Government information concerning nuclear facilities, 
materials, weapons, and components whose dissemination is controlled 
under section 148 of the Atomic Energy Act and this part.
    Utilization facility means:
    (1) Any equipment or device, or any important component part 
especially designed for such equipment or device, except for a nuclear 
weapon, that is capable of making use of special nuclear material in 
such quantity as to be of significance to the common defense and 
security or in such manner as to affect the health and safety of the 
public. For the purposes of this part, such equipment or devices include 
only Government equipment or devices that use special nuclear material 
in the research, development, production, or testing of nuclear weapons, 
nuclear

[[Page 851]]

weapon components, or nuclear material capable of being used in nuclear 
weapons; or
    (2) Any equipment or device, or any important component part 
especially designed for such equipment or device, except for a nuclear 
weapon, that is peculiarly adapted for making use of nuclear energy in 
such quantity as to be of significance to the common defense and 
security or in such manner as to affect the health and safety of the 
public. For the purposes of this part, such equipment or devices include 
only:
    (i) Naval propulsion reactors;
    (ii) Military reactors and power sources that use special nuclear 
material;
    (iii) Tritium production reactors; and,
    (iv) Government research reactors.



Sec. 1017.5  Requesting a deviation.

    (a) Any person may request a deviation, or condition that diverges 
from the norm and that is categorized as:
    (1) A variance (i.e., an approved condition that technically varies 
from a requirement in these regulations);
    (2) A waiver (i.e., an approved nonstandard condition that deviates 
from a requirement in these regulations and which, if uncompensated, 
would create a potential or real vulnerability); or
    (3) An exception (i.e., an approved deviation from a requirement in 
these regulations for which DOE accepts the risk of a safeguards and 
security vulnerability) according to the degree of risk involved.
    (b) In writing, the person must:
    (1) Identify the specific requirement for which the deviation is 
being requested;
    (2) Explain why the deviation is needed; and,
    (3) If appropriate, describe the alternate or equivalent means for 
meeting the requirement.
    (c) DOE employees must submit such requests according to internal 
directives. DOE contractors must submit such requests according to 
directives incorporated into their contracts. Other individuals must 
submit such requests to the Office of Classification, Office of Health, 
Safety and Security, U.S. Department of Energy, 1000 Independence Ave., 
SW., Washington, DC 20585-1290. The Office of Classification's decision 
must be made within 30 days.



    Subpart B_Initially Determining What Information Is Unclassified 
                     Controlled Nuclear Information



Sec. 1017.6  Authority.

    The Secretary, or his or her designee, determines whether 
information is UCNI. These determinations are incorporated into guidance 
that each Reviewing Official and Denying Official consults in his or her 
review of a document or material to decide whether the document or 
material contains UCNI.



Sec. 1017.7  Criteria.

    To be identified as UCNI, the information must meet each of the 
following criteria:
    (a) The information must be Government information as defined in 
Sec. 1017.4;
    (b) The information must concern atomic energy defense programs as 
defined in Sec. 1017.4;
    (c) The information must fall within the scope of at least one of 
the three subject areas eligible to be UCNI in Sec. 1017.8;
    (d) The information must meet the adverse effect test described in 
Sec. 1017.10; and
    (e) The information must not be exempt from being UCNI under Sec. 
1017.11.



Sec. 1017.8  Subject areas eligible to be Unclassified Controlled Nuclear Information.

    To be eligible for identification as UCNI, information must concern 
at least one of the following categories:
    (a) The design of production or utilization facilities as defined in 
this part;
    (b) Security measures (including security plans, procedures, and 
equipment) for the physical protection of production or utilization 
facilities or nuclear material, regardless of its physical state or 
form, contained in these facilities or in transit; or
    (c) The design, manufacture, or utilization of nuclear weapons or 
components that were once classified as Restricted Data, as defined in 
section 11y. of the Atomic Energy Act.

[[Page 852]]



Sec. 1017.9  Nuclear material determinations.

    (a) The Secretary may determine that a material other than special 
nuclear material, byproduct material, or source material as defined by 
the Atomic Energy Act is included within the scope of the term ``nuclear 
material'' if it meets the following criteria:
    (1) The material is used in the production, testing, utilization, or 
assembly of nuclear weapons or components of nuclear weapons; and
    (2) Unauthorized acquisition of the material could reasonably be 
expected to result in a significant adverse effect on the health and 
safety of the public or the common defense and security because the 
specific material:
    (i) Could be used as a hazardous radioactive environmental 
contaminant; or
    (ii) Could be of significant assistance in the illegal production of 
a nuclear weapon.
    (b) Designation of a material as a nuclear material under paragraph 
(a) of this section does not make all information about the material 
UCNI. Specific information about the material must still meet each of 
the criteria in Sec. 1017.7 prior to its being identified and 
controlled as UCNI.



Sec. 1017.10  Adverse effect test.

    In order for information to be identified as UCNI, it must be 
determined that the unauthorized dissemination of the information under 
review could reasonably be expected to result in a significant adverse 
effect on the health and safety of the public or the common defense and 
security by significantly increasing the likelihood of:
    (a) Illegal production of a nuclear weapon; or
    (b) Theft, diversion, or sabotage of nuclear material, equipment, or 
facilities.



Sec. 1017.11  Information exempt from being Unclassified Controlled Nuclear Information.

    Information exempt from this part includes:
    (a) Information protected from disclosure under section 147 of the 
Atomic Energy Act (42 U.S.C. 2167) that is identified as Safeguards 
Information and controlled by the United States Nuclear Regulatory 
Commission;
    (b) Basic scientific information (i.e., information resulting from 
research directed toward increasing fundamental scientific knowledge or 
understanding rather than any practical application of that knowledge);
    (c) Radiation exposure data and all other personal health 
information; and,
    (d) Information concerning the transportation of low level 
radioactive waste.



Sec. 1017.12  Prohibitions on identifying Unclassified Controlled Nuclear Information.

    Information, documents, and material must not be identified as being 
or containing UCNI in order to:
    (a) Conceal violations of law, inefficiency, or administrative 
error;
    (b) Prevent embarrassment to a person or organization;
    (c) Restrain competition; or,
    (d) Prevent or delay the release of any information that does not 
properly qualify as UCNI.



Sec. 1017.13  Report concerning determinations.

    The Office of Classification or successor office shall issue a 
report by the end of each quarter that identifies any new information 
that has been determined for the first time to be UCNI during the 
previous quarter, explains how each such determination meets the 
criteria in Sec. 1017.7, and explains why each such determination 
protects from disclosure only the minimum amount of information 
necessary to protect the health and safety of the public or the common 
defense and security. A copy of the report may be obtained by writing to 
the Office of Classification, Office of Health, Safety and Security, 
U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 
20585-1290.



 Subpart C_Review of a Document or Material for Unclassified Controlled 
                           Nuclear Information



Sec. 1017.14  Designated officials.

    (a) Reviewing Official--(1) Authority. A Reviewing Official with 
cognizance

[[Page 853]]

over the information contained in a document or material is authorized 
to determine whether the document or material contains UCNI based on 
applicable guidance. A Reviewing Official marks or authorizes the 
marking of the document or material as specified in Sec. 1017.16.
    (2) Request for designation. Procedures for requesting that a DOE 
Federal or contractor employee be designated as a Reviewing Official are 
contained in Departmental directives issued by the Secretary. DOE may 
also designate other Government agency employees, contractors, or other 
individuals granted routine access under Sec. 1017.20 as Reviewing 
Officials.
    (3) Designation. Prior to being designated as a Reviewing Official, 
each employee must receive training approved by DOE that covers the 
requirements in these regulations and be tested on his or her 
proficiency in using applicable UCNI guidance. Upon successful 
completion of the training and test, he or she is designated as a 
Reviewing Official only while serving in his or her current position for 
a maximum of 3 years. The employee does not automatically retain the 
authority when he or she leaves his or her current position. The 
employee cannot delegate this authority to anyone else, and the 
authority may not be assumed by another employee acting in the 
employee's position. At the end of 3 years, if the position still 
requires the authority, the employee must be retested and redesignated 
by DOE as a Reviewing Official.
    (b) Individuals approved to use DOE or joint DOE classification 
guidance--(1) Authority. Other Government agency employees who are 
approved by DOE or another Government agency to use classification 
guidance developed by DOE or jointly by DOE and another Government 
agency may also be approved to review documents for UCNI and to make 
UCNI determinations. This authority is limited to the UCNI subject areas 
contained in the specific classification guidance that the individual 
has been approved to use.
    (2) Designation. Individuals must be designated this authority in 
writing by the appropriate DOE or other Government agency official with 
cognizance over the specific DOE or joint DOE classification guidance.
    (c) Denying Official--(1) Authority. A DOE Denying Official for 
unclassified information with cognizance over the information contained 
in a document is authorized to deny a request made under statute (e.g., 
the FOIA, the Privacy Act) or the mandatory review provisions of 
Executive Order 12958, as amended, ``Classified National Security 
Information,'' and its successor orders, for all or any portion of the 
document that contains UCNI. The Denying Official bases his or her 
denial on applicable guidance, ensuring that the Reviewing Official who 
determined that the document contains UCNI correctly interpreted and 
applied the guidance.
    (2) Designation. Information on the designation of DOE Denying 
Officials is contained in 10 CFR Part 1004, Freedom of Information (see 
definition of the term ``Authorizing or Denying Official'' in Sec. 
1004.2).



Sec. 1017.15  Review process.

    (a) Reviewing documents for UCNI. Anyone who originates or possesses 
a document that he or she thinks may contain UCNI must send the document 
to a Reviewing Official for a determination before it is finalized, sent 
outside of his or her organization, or filed. If the originator or 
possessor must send the document outside of his or her organization for 
the review, he or she must mark the front of the document with ``Protect 
as UCNI Pending Review'' and must transmit the document in accordance 
with the requirements in Sec. 1017.27. The Reviewing Official must 
first determine whether the document is widely disseminated in the 
public domain, which means that the document under review is publicly 
available from a Government technical information service or depository 
library, for example, or that it can be found in a public library or an 
open literature source, or it can be accessed on the Internet using 
readily available search methods.
    (1) If the document is determined to be widely disseminated in the 
public domain, it cannot be controlled as UCNI. The Reviewing Official 
returns the document to the person who sent it to the Reviewing Official 
and informs

[[Page 854]]

him or her why the document cannot be controlled as UCNI. This does not 
preclude control of the same information as UCNI if it is contained in 
another document that is not widely disseminated.
    (2) If the document is not determined to be widely disseminated in 
the public domain, the Reviewing Official evaluates the information in 
the document using guidance to determine whether the document contains 
UCNI. If the Reviewing Official determines that the document does 
contain UCNI, the Reviewing Official marks or authorizes the marking of 
the document as specified in Sec. 1017.16. If the Reviewing Official 
determines that the document does not contain UCNI, the Reviewing 
Official returns the document to the person who sent it and informs him 
or her that the document does not contain UCNI. For documentation 
purposes, the Reviewing Official may mark or authorize the marking of 
the document as specified in Sec. 1017.17(b).
    (3) If no applicable guidance exists, but the Reviewing Official 
thinks the information should be identified as UCNI, then the Reviewing 
Official must send the document to the appropriate official identified 
in applicable DOE directives issued by the Secretary or his or her 
designee. The Reviewing Official should also include a written 
recommendation as to why the information should be identified as UCNI.
    (b) Review exemption for documents in files. Any document that was 
permanently filed prior to May 22, 1985, is not required to be reviewed 
for UCNI while in the files or when retrieved from the files for 
reference, inventory, or similar purposes as long as the document will 
be returned to the files and is not accessible by individuals who are 
not Authorized Individuals for the UCNI contained in the document. 
However, when a document that is likely to contain UCNI is removed from 
the files for dissemination within or outside of the immediate 
organization, it must be reviewed by a Reviewing Official with 
cognizance over the information.
    (c) Reviewing material for UCNI. Anyone who produces or possesses 
material that he or she thinks may contain or reveal UCNI must consult 
with a Reviewing Official for a determination. If the Reviewing Official 
determines that the material does contain or reveal UCNI, the Reviewing 
Official marks or authorizes the marking of the material as specified in 
Sec. 1017.16(b).



Sec. 1017.16  Unclassified Controlled Nuclear Information markings on documents or material.

    (a) Marking documents. If a Reviewing Official determines that a 
document contains UCNI, the Reviewing Official must mark or authorize 
the marking of the document as described in this section.
    (1) Front marking. The following marking must appear on the front of 
the document:

Unclassified Controlled Nuclear Information Not for Public Dissemination

Unauthorized dissemination subject to civil and criminal sanctions under 
section 148 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 
2168).
Reviewing Official:
________________________________________________________________________
(Name/Organization)
 Date:__________________________________________________________________
 Guidance Used:_________________________________________________________
    (2) Page marking. The marking ``Unclassified Controlled Nuclear 
Information'' must be placed on the bottom of the front of the document 
and on the bottom of each interior page of the document that contains 
text or if more convenient, on the bottom of only those interior pages 
that contain UCNI. The page marking must also be placed on the back of 
the last page. If space limitations do not allow for use of the full 
page marking, the acronym ``UCNI'' may be used as the page marking.
    (3) Classified documents. UCNI front and page markings are not 
applied to a classified document that also contains UCNI. If a 
classified document is portion marked, the acronym ``UCNI'' is used to 
indicate those unclassified portions that contain UCNI.
    (4) Obsolete ``May Contain UCNI'' marking. The ``May Contain UCNI'' 
marking is no longer used. Any document marked with the ``May Contain 
UCNI'' marking is considered to contain UCNI and must be protected 
accordingly until a Reviewing Official or Denying Official determines 
otherwise.

[[Page 855]]

The obsolete ``May Contain UCNI'' marking reads as follows:

    Not for Public Dissemination May contain Unclassified Controlled 
Nuclear Information subject to section 148 of the Atomic Energy Act of 
1954 (42 U.S.C. 2168). Approval by the Department of Energy prior to 
release is required.

    (b) Marking material. If possible, material containing or revealing 
UCNI must be marked as described in Sec. 1017.16(a)(1). If space 
limitations do not allow for use of the full marking in Sec. 
1017.16(a)(1), the acronym ``UCNI'' may be used.



Sec. 1017.17  Determining that a document or material no longer contains or does not contain Unclassified Controlled Nuclear Information.

    (a) Document or material no longer contains UCNI. A Reviewing 
Official with cognizance over the information in a document or material 
marked as containing UCNI may determine that the document or material no 
longer contains UCNI. A Denying Official may also determine that such a 
document or material no longer contains UCNI. The official making this 
determination must base it on applicable guidance and must ensure that 
any UCNI markings are crossed out (for documents) or removed (for 
material). The official marks or authorizes the marking of the document 
(or the material, if space allows) as follows:

      Does Not Contain Unclassified Controlled Nuclear Information

Reviewing/Denying Official:
________________________________________________________________________
(Name and organization)
 Date:__________________________________________________________________
    (b) Document or material does not contain UCNI. A Reviewing Official 
with cognizance over the information in a document or material may 
confirm that an unmarked document or material does not contain UCNI 
based on applicable guidance. No UCNI markings are required in this 
case; however, for documentation purposes, the Reviewing Official may 
mark or may authorize the marking of the document or material with the 
same marking used in Sec. 1017.17(a).



Sec. 1017.18  Joint documents or material.

    If a document or material marked as containing UCNI is under 
consideration for decontrol and falls under the cognizance of another 
DOE organization or other Government agency, the Reviewing Official or 
Denying Official must coordinate the decontrol review with that DOE 
organization or other Government agency. Any disagreement concerning the 
control or decontrol of any document or material that contains UCNI that 
was originated by or for DOE or another Government agency is resolved by 
the Secretary or his or her designee.



     Subpart D_Access to Unclassified Controlled Nuclear Information



Sec. 1017.19  Access limitations.

    A person may only have access to UCNI if he or she has been granted 
routine access by an Authorized Individual (see Sec. 1017.20) or 
limited access by the DOE Program Secretarial Officer or NNSA Deputy or 
Associate Administrator with cognizance over the UCNI (see Sec. 
1017.21). The Secretary, or his or her designee, may impose additional 
administrative controls concerning the granting of routine or limited 
access to UCNI to a person who is not a U.S. citizen.



Sec. 1017.20  Routine access.

    (a) Authorized Individual. The Reviewing Official who determines 
that a document or material contains UCNI is the initial Authorized 
Individual for that document or material. An Authorized Individual, for 
UCNI in his or her possession or control, may determine that another 
person is an Authorized Individual who may be granted access to the 
UCNI, subject to limitations in paragraph (b) of this section, and who 
may further disseminate the UCNI under the provisions of this section.
    (b) Requirements for routine access. To be eligible for routine 
access to UCNI, the person must have a need to know the UCNI in order to 
perform official duties or other Government-authorized activities and 
must be:
    (1) A U.S. citizen who is:

[[Page 856]]

    (i) An employee of any branch of the Federal Government, including 
the U.S. Armed Forces;
    (ii) An employee or representative of a State, local, or Indian 
tribal government;
    (iii) A member of an emergency response organization;
    (iv) An employee of a Government contractor or a consultant, 
including those contractors or consultants who need access to bid on a 
Government contract;
    (v) A member of Congress or a staff member of a congressional 
committee or of an individual member of Congress;
    (vi) A Governor of a State, his or her designated representative, or 
a State government official;
    (vii) A member of a DOE advisory committee; or,
    (viii) A member of an entity that has entered into a formal 
agreement with the Government, such as a Cooperative Research and 
Development Agreement or similar arrangement; or,
    (2) A person who is not a U.S. citizen but who is:
    (i) A Federal Government employee or a member of the U.S. Armed 
Forces;
    (ii) An employee of a Federal Government contractor or 
subcontractor;
    (iii) A Federal Government consultant;
    (iv) A member of a DOE advisory committee;
    (v) A member of an entity that has entered into a formal agreement 
with the Government, such as a Cooperative Research and Development 
Agreement or similar arrangement;
    (vi) An employee or representative of a State, local, or Indian 
tribal government; or,
    (vii) A member of an emergency response organization when responding 
to an emergency; or,
    (3) A person who is not a U.S. citizen but who needs to know the 
UCNI in conjunction with an activity approved by the DOE Program 
Secretarial Officer or NNSA Deputy or Associate Administrator with 
cognizance over the UCNI.



Sec. 1017.21  Limited access.

    (a) A person who is not eligible for routine access to specific UCNI 
under Sec. 1017.20 may request limited access to such UCNI by sending a 
written request to the DOE Program Secretarial Officer or NNSA Deputy or 
Associate Administrator with cognizance over the information. The 
written request must include the following:
    (1) The name, current residence or business address, birthplace, 
birth date, and country of citizenship of the person submitting the 
request;
    (2) A description of the specific UCNI for which limited access is 
being requested;
    (3) A description of the purpose for which the UCNI is needed; and,
    (4) Certification by the requester that he or she:
    (i) Understands and will follow these regulations; and
    (ii) Understands that he or she is subject to the civil and criminal 
penalties under Subpart F of this part.
    (b) The decision whether to grant the request for limited access is 
based on the following criteria:
    (1) The sensitivity of the UCNI for which limited access is being 
requested;
    (2) The approving official's evaluation of the likelihood that the 
requester will disseminate the UCNI to unauthorized individuals; and,
    (3) The approving official's evaluation of the likelihood that the 
requester will use the UCNI for illegal purposes.
    (c) Within 30 days of receipt of the request for limited access, the 
appropriate DOE Program Secretarial Officer or NNSA Deputy or Associate 
Administrator must notify the requester if limited access is granted or 
denied, or if the determination cannot be made within 30 days, of the 
date when the determination will be made.
    (d) A person granted limited access to specific UCNI is not an 
Authorized Individual and may not further disseminate the UCNI to 
anyone.



               Subpart E_Physical Protection Requirements



Sec. 1017.22  Notification of protection requirements.

    (a) An Authorized Individual who grants routine access to specific 
UCNI under Sec. 1017.20 to a person who is not an

[[Page 857]]

employee or contractor of the DOE must notify the person receiving the 
UCNI of protection requirements described in this subpart and any 
limitations on further dissemination.
    (b) A DOE Program Secretarial Officer or NNSA Deputy or Associate 
Administrator who grants limited access to specific UCNI under Sec. 
1017.21 must notify the person receiving the UCNI of protection 
requirements described in this subpart and any limitations on further 
dissemination.



Sec. 1017.23  Protection in use.

    An Authorized Individual or a person granted limited access to UCNI 
under Sec. 1017.21 must maintain physical control over any document or 
material marked as containing UCNI that is in use to prevent 
unauthorized access to it.



Sec. 1017.24  Storage.

    A document or material marked as containing UCNI must be stored to 
preclude unauthorized disclosure. When not in use, documents or material 
containing UCNI must be stored in locked receptacles (e.g., file 
cabinet, desk drawer), or if in secured areas or facilities, in a manner 
that would prevent inadvertent access by an unauthorized individual.



Sec. 1017.25  Reproduction.

    A document marked as containing UCNI may be reproduced without the 
permission of the originator to the minimum extent necessary consistent 
with the need to carry out official duties, provided the reproduced 
document is marked and protected in the same manner as the original 
document.



Sec. 1017.26  Destruction.

    A document marked as containing UCNI must be destroyed, at a 
minimum, by using a cross-cut shredder that produces particles no larger 
than 1/4-inch wide and 2 inches long. Other comparable destruction 
methods may be used. Material containing or revealing UCNI must be 
destroyed according to agency directives.



Sec. 1017.27  Transmission.

    (a) Physically transmitting UCNI documents or material. (1) A 
document or material marked as containing UCNI may be transmitted by:
    (i) U.S. First Class, Express, Certified, or Registered mail;
    (ii) Any means approved for transmission of classified documents or 
material;
    (iii) An Authorized Individual or person granted limited access 
under Sec. 1017.21 as long as physical control of the package is 
maintained; or,
    (iv) Internal mail services.
    (2) The document or material must be packaged to conceal the 
presence of the UCNI from someone who is not authorized access. A 
single, opaque envelope or wrapping is sufficient for this purpose. The 
address of the recipient and the sender must be indicated on the outside 
of the envelope or wrapping along with the words ``TO BE OPENED BY 
ADDRESSEE ONLY.''
    (b) Transmitting UCNI documents over telecommunications circuits. 
Encryption algorithms that comply with all applicable Federal laws, 
regulations, and standards for the protection of unclassified controlled 
information must be used when transmitting UCNI over a 
telecommunications circuit (including the telephone, facsimile, radio, 
e-mail, Internet).



Sec. 1017.28  Processing on Automated Information Systems (AIS).

    UCNI may be processed or produced on any AIS that complies with the 
guidance in OMB Circular No. A-130, Revised, Transmittal No. 4, Appendix 
III, ``Security of Federal Automated Information Resources,'' or is 
certified for classified information.



                          Subpart F_Violations



Sec. 1017.29  Civil penalty.

    (a) Regulations. Any person who violates a UCNI security requirement 
of any of the following is subject to a civil penalty under this part:
    (1) 10 CFR Part 1017--Identification and Protection of Unclassified 
Controlled Nuclear Information; or
    (2) Any other DOE regulation related to the safeguarding or security 
of UCNI if the regulation provides that violation of its provisions may 
result in a civil penalty pursuant to section 148 of the Act.

[[Page 858]]

    (b) Compliance order. If, without violating a requirement of any 
regulation issued under section 148, a person by an act or omission 
causes, or creates a risk of, the loss, compromise or unauthorized 
disclosure of UCNI, the Secretary may issue a compliance order to that 
person requiring the person to take corrective action and notifying the 
person that violation of the compliance order is subject to a notice of 
violation and assessment of a civil penalty. If a person wishes to 
contest the compliance order, the person must file a notice of appeal 
with the Secretary within 15 days of receipt of the compliance order.
    (c) Amount of penalty. The Director may propose imposition of a 
civil penalty for violation of a requirement of a regulation under 
paragraph (a) of this section or a compliance order issued under 
paragraph (b) of this section, not to exceed $150,000 for each 
violation.
    (d) Settlements. The Director may enter into a settlement, with or 
without conditions, of an enforcement proceeding at any time if the 
settlement is consistent with the objectives of DOE's UCNI protection 
requirements.
    (e) Enforcement conference. The Director may convene an informal 
conference to discuss any situation that might be a violation of the 
Act, its significance and cause, any correction taken or not taken by 
the person, any mitigating or aggravating circumstances, and any other 
useful information. The Director may compel a person to attend the 
conference. This conference will not normally be open to the public and 
there shall be no transcript.
    (f) Investigations. The Director may conduct investigations and 
inspections relating to the scope, nature and extent of compliance by a 
person with DOE security requirements specified in these regulations and 
take such action as the Director deems necessary and appropriate to the 
conduct of the investigation or inspection, including signing, issuing 
and serving subpoenas.
    (g) Preliminary notice of violation. (1) In order to begin a 
proceeding to impose a civil penalty under this part, the Director shall 
notify the person by a written preliminary notice of violation sent by 
certified mail, return receipt requested, of:
    (i) The date, facts, and nature of each act or omission constituting 
the alleged violation;
    (ii) The particular provision of the regulation or compliance order 
involved in each alleged violation;
    (iii) The proposed remedy for each alleged violation, including the 
amount of any civil penalty proposed;
    (iv) The right of the person to submit a written reply to the 
Director within 30 calendar days of receipt of such preliminary notice 
of violation; and,
    (v) The fact that upon failure of the person to pay any civil 
penalty imposed, the penalty may be collected by civil action.
    (2) A reply to a preliminary notice of violation must contain a 
statement of all relevant facts pertaining to an alleged violation. The 
reply must:
    (i) State any facts, explanations, and arguments that support a 
denial of the alleged violation;
    (ii) Demonstrate any extenuating circumstances or other reason why a 
proposed remedy should not be imposed or should be mitigated;
    (iii) Discuss the relevant authorities that support the position 
asserted, including rulings, regulations, interpretations, and previous 
decisions issued by DOE;
    (iv) Furnish full and complete answers to any questions set forth in 
the preliminary notice; and
    (v) Include copies of all relevant documents.
    (3) If a person fails to submit a written reply within 30 calendar 
days of receipt of a preliminary notice of violation:
    (i) The person relinquishes any right to appeal any matter in the 
preliminary notice; and
    (ii) The preliminary notice, including any remedies therein, 
constitutes a final order.
    (4) The Director, at the request of a person notified of an alleged 
violation, may extend for a reasonable period the time for submitting a 
reply or a hearing request letter.
    (h) Final notice of violation. (1) If a person submits a written 
reply within 30 calendar days of receipt of a preliminary notice of 
violation, the Director

[[Page 859]]

must make a final determination whether the person violated or is 
continuing to violate an UCNI security requirement.
    (2) Based on a determination by the Director that a person has 
violated or is continuing to violate an UCNI security requirement, the 
Director may issue to the person a final notice of violation that 
concisely states the determined violation, the amount of any civil 
penalty imposed, and further actions necessary by or available to the 
person. The final notice of violation also must state that the person 
has the right to submit to the Director, within 30 calendar days of the 
receipt of the notice, a written request for a hearing under paragraph 
(i) of this section.
    (3) The Director must send a final notice of violation by certified 
mail, return receipt requested, within 30 calendar days of the receipt 
of a reply.
    (4) Subject to paragraphs (h)(7) and (h)(8) of this section, the 
effect of final notice shall be:
    (i) If a final notice of violation does not contain a civil penalty, 
it shall be deemed a final order 15 days after the final notice is 
issued.
    (ii) If a final notice of violation contains a civil penalty, the 
person must submit to the Director within 30 days after the issuance of 
the final notice:
    (A) A waiver of further proceedings; or
    (B) A request for an on-the-record hearing under paragraph (i) of 
this section.
    (5) If a person waives further proceedings, the final notice of 
violation shall be deemed a final order enforceable against the person. 
The person must pay the civil penalty set forth in the notice of 
violation within 60 days of the filing of waiver unless the Director 
grants additional time.
    (6) If a person files a request for an on-the-record hearing, then 
the hearing process commences.
    (7) The Director may amend the final notice of violation at any time 
before the time periods specified in paragraphs (h)(4)(i) or (h)(4)(ii) 
of this section expire. An amendment shall add 15 days to the time 
period under paragraph (h)(4) of this section.
    (8) The Director may withdraw the final notice of violation, or any 
part thereof, at any time before the time periods specified in 
paragraphs (h)(4)(i) or (h)(4)(ii) of this section expire.
    (i) Hearing. (1) Any person who receives a final notice of violation 
under paragraph (h) of this section may request a hearing concerning the 
allegations contained in the notice. The person must mail or deliver any 
written request for a hearing to the Director within 30 calendar days of 
receipt of the final notice of violation.
    (2) Upon receipt from a person of a written request for a hearing, 
the Director shall:
    (i) Appoint a Hearing Counsel; and
    (ii) Select an administrative law judge appointed under 5 U.S.C. 
3105, to serve as Hearing Officer.
    (j) Hearing Counsel. The Hearing Counsel:
    (1) Represents DOE;
    (2) Consults with the person or the person's counsel prior to the 
hearing;
    (3) Examines and cross-examines witnesses during the hearing; and
    (4) Enters into a settlement of the enforcement proceeding at any 
time if settlement is consistent with the objectives of the Act and DOE 
security requirements.
    (k) Hearing Officer. The Hearing Officer:
    (1) Is responsible for the administrative preparations for the 
hearing;
    (2) Convenes the hearing as soon as is reasonable;
    (3) Administers oaths and affirmations;
    (4) Issues subpoenas, at the request of either party or on the 
Hearing Officer's motion;
    (5) Rules on offers of proof and receives relevant evidence;
    (6) Takes depositions or has depositions taken when the ends of 
justice would be served;
    (7) Conducts the hearing in a manner which is fair and impartial;
    (8) Holds conferences for the settlement or simplification of the 
issues by consent of the parties;
    (9) Disposes of procedural requests or similar matters;
    (10) Requires production of documents; and,
    (11) Makes an initial decision under paragraph (n) of this section.

[[Page 860]]

    (l) Rights of the person at the hearing. The person may:
    (1) Testify or present evidence through witnesses or by documents;
    (2) Cross-examine witnesses and rebut records or other physical 
evidence, except as provided in paragraph (m)(4) of this section;
    (3) Be present during the entire hearing, except as provided in 
paragraph (m)(4) of this section; and
    (4) Be accompanied, represented, and advised by counsel of the 
person's choosing.
    (m) Conduct of the hearing. (1) DOE shall make a transcript of the 
hearing.
    (2) Except as provided in paragraph (m)(4) of this section, the 
Hearing Officer may receive any oral or documentary evidence, but shall 
exclude irrelevant, immaterial, or unduly repetitious evidence.
    (3) Witnesses shall testify under oath and are subject to cross-
examination, except as provided in paragraph (m)(4) of this section.
    (4) The Hearing Officer must use procedures appropriate to safeguard 
and prevent unauthorized disclosure of classified information, UCNI, or 
any other information protected from public disclosure by law or 
regulation, with minimum impairment of rights and obligations under this 
part. The UCNI status shall not, however, preclude information from 
being introduced into evidence. The Hearing Officer may issue such 
orders as may be necessary to consider such evidence in camera including 
the preparation of a supplemental initial decision to address issues of 
law or fact that arise out of that portion of the evidence that is 
protected.
    (5) DOE has the burden of going forward with and of proving by a 
preponderance of the evidence that the violation occurred as set forth 
in the final notice of violation and that the proposed civil penalty is 
appropriate. The person to whom the final notice of violation has been 
addressed shall have the burden of presenting and of going forward with 
any defense to the allegations set forth in the final notice of 
violation. Each matter of controversy shall be determined by the Hearing 
Officer upon a preponderance of the evidence.
    (n) Initial decision. (1) The Hearing Officer shall issue an initial 
decision as soon as practicable after the hearing. The initial decision 
shall contain findings of fact and conclusions regarding all material 
issues of law, as well as reasons therefor. If the Hearing Officer 
determines that a violation has occurred and that a civil penalty is 
appropriate, the initial decision shall set forth the amount of the 
civil penalty based on:
    (i) The nature, circumstances, extent, and gravity of the violation 
or violations;
    (ii) The violator's ability to pay;
    (iii) The effect of the civil penalty on the person's ability to do 
business;
    (iv) Any history of prior violations;
    (v) The degree of culpability; and,
    (vi) Such other matters as justice may require.
    (2) The Hearing Officer shall serve all parties with the initial 
decision by certified mail, return receipt requested. The initial 
decision shall include notice that it constitutes a final order of DOE 
30 days after the filing of the initial decision unless the Secretary 
files a Notice of Review. If the Secretary files a Notice of Review, he 
shall file a final order as soon as practicable after completing his 
review. The Secretary, at his discretion, may order additional 
proceedings, remand the matter, or modify the amount of the civil 
penalty assessed in the initial decision. DOE shall notify the person of 
the Secretary's action under this paragraph in writing by certified 
mail, return receipt requested. The person against whom the civil 
penalty is assessed by the final order shall pay the full amount of the 
civil penalty assessed in the final order within 30 days unless 
otherwise agreed by the Director.
    (o) Collection of penalty. (1) The Secretary may request the 
Attorney General to institute a civil action to collect a penalty 
imposed under this section.
    (2) The Attorney General has the exclusive power to uphold, 
compromise or mitigate, or remit any civil penalty imposed by the 
Secretary under this section and referred to the Attorney General for 
collection.
    (p) Direction to NNSA. (1) Notwithstanding any other provision of 
this

[[Page 861]]

part, the NNSA Administrator, rather than the Director, signs, issues, 
serves, or takes the following actions that direct NNSA employees, 
contractors, subcontractors, or employees of such NNSA contractors or 
subcontractors:
    (i) Subpoenas;
    (ii) Orders to compel attendance;
    (iii) Disclosures of information or documents obtained during an 
investigation or inspection;
    (iv) Preliminary notices of violation; and,
    (v) Final notice of violations.
    (2) The Administrator shall act after consideration of the 
Director's recommendation. If the Administrator disagrees with the 
Director's recommendation, and the disagreement cannot be resolved by 
the two officials, the Director may refer the matter to the Deputy 
Secretary for resolution.

[73 FR 32641, June 10, 2008, as amended at 74 FR 66033, Dec. 14, 2009]



Sec. 1017.30  Criminal penalty.

    Any person who violates section 148 of the Atomic Energy Act or any 
regulation or order of the Secretary issued under section 148 of the 
Atomic Energy Act, including these regulations, may be subject to a 
criminal penalty under section 223 of the Atomic Energy Act (42 U.S.C. 
2273). In such case, the Secretary shall refer the matter to the 
Attorney General for investigation and possible prosecution.



PART 1021_NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING PROCEDURES--Table of Contents



                            Subpart A_General

Sec.
1021.100 Purpose.
1021.101 Policy.
1021.102 Applicability.
1021.103 Adoption of CEQ NEPA regulations.
1021.104 Definitions.
1021.105 Oversight of Agency NEPA activities.

                      Subpart B_DOE Decisionmaking

1021.200 DOE planning.
1021.210 DOE decisionmaking.
1021.211 Interim actions: Limitations on actions during the NEPA 
          process.
1021.212 Research, development, demonstration, and testing.
1021.213 Rulemaking.
1021.214 Adjudicatory proceedings.
1021.215 Applicant process.
1021.216 Procurement, financial assistance, and joint ventures.

                    Subpart C_Implementing Procedures

1021.300 General requirements.
1021.301 Agency review and public participation.
1021.310 Environmental impact statements.
1021.311 Notice of intent and scoping.
1021.312 [Reserved]
1021.313 Public review of environmental impact statements.
1021.314 Supplemental environmental impact statements.
1021.315 Records of decision.
1021.320 Environmental assessments.
1021.321 Requirements for environmental assessments.
1021.322 Findings of no significant impact.
1021.330 Programmatic (including site-wide) NEPA documents.
1021.331 Mitigation action plans.
1021.340 C1assified, confidential, and otherwise exempt information.
1021.341 Coordination with other environmental review requirements.
1021.342 Interagency cooperation.
1021.343 Variances.

                  Subpart D_Typical Classes of Actions

1021.400 Level of NEPA review.
1021.410 Application of categorical exclusions (classes of actions that 
          normally do not require EAs or EISs).

Appendix A to Subpart D of Part 1021--Categorical Exclusions Applicable 
          to General Agency Actions
Appendix B to Subpart D of Part 1021--Categorical Exclusions Applicable 
          to Specific Agency Actions
Appendix C to Subpart D of Part 1021--Classes of Actions that Normally 
          Require EAs but not Necessarily EISs
Appendix D to Subpart D of Part 1021--Classes of Actions that Normally 
          Require EISs

    Authority: 42 U.S.C. 7101 et seq.; 42 U.S.C. 4321 et seq.; 50 U.S.C. 
2401 et seq.

    Source: 57 FR 15144, Apr. 24, 1992, unless otherwise noted.



                            Subpart A_General



Sec. 1021.100  Purpose.

    The purpose of this part is to establish procedures that the 
Department of Energy (DOE) shall use to comply with section 102(2) of 
the National Environmental Policy Act (NEPA) of 1969 (42

[[Page 862]]

U.S.C. 4332(2)) and the Council on Environmental Quality (CEQ) 
regulations for implementing the procedural provisions of NEPA (40 CFR 
parts 1500-1508). This part supplements, and is to be used in 
conjunction with, the CEQ Regulations.



Sec. 1021.101  Policy.

    It is DOE's policy to follow the letter and spirit of NEPA; comply 
fully with the CEQ Regulations; and apply the NEPA review process early 
in the planning stages for DOE proposals.



Sec. 1021.102  Applicability.

    (a) This part applies to all organizational elements of DOE except 
the Federal Energy Regulatory Commission.
    (b) This part applies to any DOE action affecting the quality of the 
environment of the United States, its territories or possessions. DOE 
actions having environmental effects outside the United States, its 
territories or possessions are subject to the provisions of Executive 
Order 12114, ``Environmental Effects Abroad of Major Federal Actions'' 
(3 CFR, 1979 Comp., p. 356; 44 FR 1957, January 4, 1979), DOE guidelines 
implementing that Executive Order (46 FR 1007, January 5, 1981), and the 
Department of State's ``Unified Procedures Applicable to Major Federal 
Actions Relating to Nuclear Activities Subject to Executive Order 
12114'' (44 FR 65560, November 13, 1979).



Sec. 1021.103  Adoption of CEQ NEPA regulations.

    DOE adopts the regulations for implementing NEPA published by CEQ at 
40 CFR parts 1500 through 1508.



Sec. 1021.104  Definitions.

    (a) The definitions set forth in 40 CFR part 1508 are referenced and 
used in this part.
    (b) In addition to the terms defined in 40 CFR part 1508, the 
following definitions apply to this part:
    Action means a project, program, plan, or policy, as discussed at 40 
CFR 1508.18, that is subject to DOE's control and responsibility. Not 
included within this definition are purely ministerial actions with 
regard to which DOE has no discretion. For example, ministerial actions 
to implement congressionally mandated funding for actions not proposed 
by DOE and as to which DOE has no discretion (i.e., statutorily 
mandated, congressionally initiated ``passthroughs'').
    Advance NOI means a formal public notice of DOE's intent to prepare 
an EIS, which is published in advance of an NOI in order to facilitate 
public involvement in the NEPA process.
    American Indian tribe means any Indian tribe, band, nation, pueblo, 
or other organized group or community, including any Alaska native 
entity, which is recognized as eligible for the special programs or 
services provided by the United States because of their status as 
Indians.
    Categorical exclusion means a category of actions, as defined at 40 
CFR 1508.4 and listed in appendix A or B to subpart D of this part, for 
which neither an EA nor an EIS is normally required.
    CEQ means the Council on Environmental Quality as defined at 40 CFR 
1508.6.
    CEQ Regulations means the regulations issued by CEQ (40 CFR parts 
1500-1508) to implement the procedural provisions of NEPA.
    CERCLA-excluded petroleum and natural gas products means petroleum, 
including crude oil or any fraction thereof, that is not otherwise 
specifically listed or designated as a hazardous substance under section 
101(14) of the Comprehensive Environmental Response, Compensation, and 
Liability Act (CERCLA) (42 U.S.C. 9601.101(14)) and natural gas, natural 
gas liquids, liquefied natural gas, or synthetic gas usable for fuel or 
of pipeline quality (or mixtures of natural gas and such synthetic gas).
    Contaminant means a substance identified within the definition of 
contaminant in section 101(33) of CERCLA (42 U.S.C. 9601.101(33)).
    Day means a calendar day.
    DOE means the U.S. Department of Energy.
    DOE proposal (or proposal) means a proposal, as discussed at 40 CFR 
1508.23 (whether initiated by DOE, another Federal agency, or an 
applicant), for an action, if the proposal requires a DOE decision.

[[Page 863]]

    EA means an environmental assessment as defined at 40 CFR 1508.9.
    EIS means an environmental impact statement as defined at 40 CFR 
1508.11, or, unless this part specifically provides otherwise, a 
Supplemental EIS.
    EPA means the U.S. Environmental Protection Agency.
    FONSI means a Finding of No Significant Impact as defined at 40 CFR 
1508.13.
    Hazardous substance means a substance identified within the 
definition of hazardous substances in section 101(14) of CERCLA (42 
U.S.C. 9601.101(14)). Radionuclides are hazardous substances through 
their listing under section 112 of the Clean Air Act (42 U.S.C. 7412) 
(40 CFR part 61, subpart H).
    Host state means a state within whose boundaries DOE proposes an 
action at an existing facility or construction or operation of a new 
facility.
    Host tribe means an American Indian tribe within whose tribal lands 
DOE proposes an action at an existing facility or construction or 
operation of a new facility. For purposes of this definition, tribal 
lands means the area of ``Indian country,'' as defined in 18 U.S.C. 
1151, that is under the tribe's jurisdiction. That section defines 
Indian country as:
    (i) All land within the limits of any Indian reservation under the 
jurisdiction of the United States government, notwithstanding the 
issuance of any patent, and including rights-of-way running through the 
reservation;
    (ii) All dependent Indian communities within the borders of the 
United States whether within the original or subsequently acquired 
territory thereof, and whether within or without the limits of a state; 
and
    (iii) All Indian allotments, the Indian titles to which have not 
been extinguished, including rights-of-way running through the same.
    Interim action means an action concerning a proposal that is the 
subject of an ongoing EIS and that DOE proposes to take before the ROD 
is issued, and that is permissible under 40 CFR 1506.1: Limitations on 
actions during the NEPA process.
    Mitigation Action Plan means a document that describes the plan for 
implementing commitments made in a DOE EIS and its associated ROD, or, 
when appropriate, an EA or FONSI, to mitigate adverse environmental 
impacts associated with an action.
    NEPA means the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.).
    NEPA document means a DOE NOI, EIS, ROD, EA, FONSI, or any other 
document prepared pursuant to a requirement of NEPA or the CEQ 
Regulations.
    NEPA review means the process used to comply with section 102(2) of 
NEPA.
    NOI means a Notice of Intent to prepare an EIS as defined at 40 CFR 
1508.22.
    Notice of Availability means a formal notice, published in the 
Federal Register, that announces the issuance and public availability of 
a draft or final EIS. The EPA Notice of Availability is the official 
public notification of an EIS; a DOE Notice of Availability is an 
optional notice used to provide information to the public.
    Pollutant means a substance identified within the definition of 
pollutant in section 101(33) of CERCLA (42 U.S.C. 9601.101(33)).
    Program means a sequence of connected or related DOE actions or 
projects as discussed at 40 CFR 1508.18(b)(3) and 1508.25(a).
    Programmatic NEPA document means a broad-scope EIS or EA that 
identifies and assesses the environmental impacts of a DOE program; it 
may also refer to an associated NEPA document, such as an NOI, ROD, or 
FONSI.
    Project means a specific DOE undertaking including actions approved 
by permit or other regulatory decision as well as Federal and federally 
assisted activities, which may include design, construction, and 
operation of an individual facility; research, development, 
demonstration, and testing for a process or product; funding for a 
facility, process, or product; or similar activities, as discussed at 40 
CFR 1508.18(b)(4).
    ROD means a Record of Decision as described at 40 CFR 1505.2.
    Scoping means the process described at 40 CFR 1501.7; ``public 
scoping process'' refers to that portion of the

[[Page 864]]

scoping process where the public is invited to participate, as described 
at 40 CFR 1501.7 (a)(1) and (b)(4).
    Site-wide NEPA document means a broad-scope EIS or EA that is 
programmatic in nature and identifies and assesses the individual and 
cumulative impacts of ongoing and reasonably foreseeable future actions 
at a DOE site; it may also refer to an associated NEPA document, such as 
an NOI, ROD, or FONSI.
    Supplement Analysis means a DOE document used to determine whether a 
supplemental EIS should be prepared pursuant to 40 CFR 1502.9(c), or to 
support a decision to prepare a new EIS.
    Supplemental EIS means an EIS prepared to supplement a prior EIS as 
provided at 40 CFR 1502.9(c).
    The Secretary means the Secretary of Energy.

[57 FR 15144, Apr. 24, 1992, as amended at 61 FR 36239, July 9, 1996]



Sec. 1021.105  Oversight of Agency NEPA activities.

    The General Counsel, or his/her designee, is responsible for overall 
review of DOE NEPA compliance. Further information on DOE's NEPA process 
and the status of individual NEPA reviews may be obtained upon request 
from the Office of NEPA Policy and Compliance, GC-20, Office of the 
General Counsel, U.S. Department of Energy, 1000 Independence Avenue 
SW., Washington, DC 20585-0103.

[71 FR 68736, Nov. 28, 2006]



                      Subpart B_DOE Decisionmaking



Sec. 1021.200  DOE planning.

    (a) DOE shall provide for adequate and timely NEPA review of DOE 
proposals, including those for programs, policies, projects, 
regulations, orders, or legislation, in accordance with 40 CFR 1501.2 
and this section. In its planning for each proposal, DOE shall include 
adequate time and funding for proper NEPA review and for preparation of 
anticipated NEPA documents.
    (b) DOE shall begin its NEPA review as soon as possible after the 
time that DOE proposes an action or is presented with a proposal.
    (c) DOE shall determine the level of NEPA review required for a 
proposal in accordance with Sec. 1021.300 and subpart D of this part.
    (d) During the development and consideration of a DOE proposal, DOE 
shall review any relevant planning and decisionmaking documents, whether 
prepared by DOE or another agency, to determine if the proposal or any 
of its alternatives are considered in a prior NEPA document. If so, DOE 
shall consider adopting the existing document, or any pertinent part 
thereof, in accordance with 40 CFR 1506.3.



Sec. 1021.210  DOE decisionmaking.

    (a) For each DOE proposal, DOE shall coordinate its NEPA review with 
its decisionmaking. Sections 1021.211 through 1021.214 of this part 
specify how DOE will coordinate its NEPA review with decision points for 
certain types of proposals (40 CFR 1505.1(b)).
    (b) DOE shall complete its NEPA review for each DOE proposal before 
making a decision on the proposal (e.g., normally in advance of, and for 
use in reaching, a decision to proceed with detailed design), except as 
provided in 40 CFR 1506.1 and Sec. Sec. 1021.211 and 1021.216 of this 
part.
    (c) During the decisionmaking process for each DOE proposal, DOE 
shall consider the relevant NEPA documents, public and agency comments 
(if any) on those documents, and DOE responses to those comments, as 
part of its consideration of the proposal (40 CFR 1505.1(d)) and shall 
include such documents, comments, and responses as part of the 
administrative record (40 CFR 1505.1(c)).
    (d) If an EIS or EA is prepared for a DOE proposal, DOE shall 
consider the alternatives analyzed in that EIS or EA before rendering a 
decision on that proposal; the decision on the proposal shall be within 
the range of alternatives analyzed in the EA or EIS (40 CFR 1505.1(e)).
    (e) When DOE uses a broad decision (such as one on a policy or 
program) as a basis for a subsequent narrower decision (such as one on a 
project or other site-specific proposal), DOE may use tiering (40 CFR 
1502.20) and incorporation of material by reference (40 CFR

[[Page 865]]

1502.21) in the NEPA review for the subsequent narrower proposal.



Sec. 1021.211  Interim actions: Limitations on actions during the NEPA process.

    While DOE is preparing an EIS that is required under Sec. 
1021.300(a) of this part, DOE shall take no action concerning the 
proposal that is the subject of the EIS before issuing an ROD, except as 
provided at 40 CFR 1506.1. Actions that are covered by, or are a part 
of, a DOE proposal for which an EIS is being prepared shall not be 
categorically excluded under subpart D of these regulations unless they 
qualify as interim actions under 40 CFR 1506.1.



Sec. 1021.212  Research, development, demonstration, and testing.

    (a) This section applies to the adoption and application of programs 
that involve research, development, demonstration, and testing for new 
technologies (40 CFR 1502.4(c)(3)). Adoption of such programs might also 
lead to commercialization or other broad-scale implementation by DOE or 
another entity.
    (b) For any proposed program described in paragraph (a) of this 
section, DOE shall begin its NEPA review (if otherwise required by this 
part) as soon as environmental effects can be meaningfully evaluated, 
and before DOE has reached the level of investment or commitment likely 
to determine subsequent development or restrict later alternatives, as 
discussed at 40 CFR 1502.4(c)(3).
    (c) For subsequent phases of development and application, DOE shall 
prepare one or more additional NEPA documents (if otherwise required by 
this part).



Sec. 1021.213  Rulemaking.

    (a) This section applies to regulations promulgated by DOE.
    (b) DOE shall begin its NEPA review of a proposed rule (if otherwise 
required by this part) while drafting the proposed regulation, and as 
soon as environmental effects can be meaningfully evaluated.
    (c) DOE shall include any relevant NEPA documents, public and agency 
comments (if any) on those documents, and DOE responses to those 
comments, as part of the administrative record (40 CFR 1505.1(c)).
    (d) If an EIS is required, DOE will normally publish the draft EIS 
at the time it publishes the proposed rule (40 CFR 1502.5(d)). DOE will 
normally combine any public hearings required for a proposed rule with 
the public hearings required on the draft EIS under Sec. 1021.313 of 
this part. The draft EIS need not accompany notices of inquiry or 
advance notices of proposed rulemaking that DOE may use to gather 
information during early stages of regulation development. When engaged 
in rulemaking for the purpose of protecting the public health and 
safety, DOE may issue the final rule simultaneously with publication of 
the EPA Notice of Availability of the final EIS in accordance with 40 
CFR 1506.10(b).
    (e) If an EA is required, DOE will normally complete the EA and 
issue any related FONSI prior to or simultaneously with issuance of the 
proposed rule; however, if the EA leads to preparation of an EIS, the 
provisions of paragraph (d) of this section shall apply.



Sec. 1021.214  Adjudicatory proceedings.

    (a) This section applies to DOE proposed actions that involve DOE 
adjudicatory proceedings, excluding judicial or administrative civil or 
criminal enforcement actions.
    (b) DOE shall complete its NEPA review (if otherwise required by 
this part) before rendering any final adjudicatory decision. If an EIS 
is required, the final EIS will normally be completed at the time of or 
before final staff recommendation, in accordance with 40 CFR 1502.5(c).
    (c) DOE shall include any relevant NEPA documents, public and agency 
comments (if any) on those documents, and DOE responses to those 
comments, as part of the administrative record (40 CFR 1505.1(c)).



Sec. 1021.215  Applicant process.

    (a) This section applies to actions that involve application to DOE 
for a permit, license, exemption or allocation, or other similar 
actions, unless the action is categorically excluded

[[Page 866]]

from preparation of an EA or EIS under subpart D of this part.
    (b) The applicant shall:
    (1) Consult with DOE as early as possible in the planning process to 
obtain guidance with respect to the appropriate level and scope of any 
studies or environmental information that DOE may require to be 
submitted as part of, or in support of, the application;
    (2) Conduct studies that DOE deems necessary and appropriate to 
determine the environmental impacts of the proposed action;
    (3) Consult with appropriate Federal, state, regional and local 
agencies, American Indian tribes and other potentially interested 
parties during the preliminary planning stages of the proposed action to 
identify environmental factors and permitting requirements;
    (4) Notify DOE as early as possible of other Federal, state, 
regional, local or American Indian tribal actions required for project 
completion to allow DOE to coordinate the Federal environmental review, 
and fulfill the requirements of 40 CFR 1506.2 regarding elimination of 
duplication with state and local procedures, as appropriate;
    (5) Notify DOE of private entities and organizations interested in 
the proposed undertaking, in order that DOE can consult, as appropriate, 
with these parties in accordance with 40 CFR 1501.2(d)(2); and
    (6) Notify DOE if, before DOE completes the environmental review, 
the applicant plans to take an action that is within DOE's jurisdiction 
that may have an adverse environmental impact or limit the choice of 
alternatives. If DOE determines that the action would have an adverse 
environmental impact or would limit the choice of reasonable 
alternatives under 40 CFR 1506.1(a), DOE will promptly notify the 
applicant that DOE will take appropriate action to ensure that the 
objectives and procedures of NEPA are achieved in accordance with 40 CFR 
1506.1(b).
    (c) For major categories of DOE actions involving a large number of 
applicants, DOE may prepare and make available generic guidance 
describing the recommended level and scope of environmental information 
that applicants should provide.
    (d) DOE shall begin its NEPA review (if otherwise required by this 
part) as soon as possible after receiving an application described in 
paragraph (a) of this section, and shall independently evaluate and 
verify the accuracy of information received from an applicant in 
accordance with 40 CFR 1506.5(a). At DOE's option, an applicant may 
prepare an EA in accordance with 40 CFR 1506.5(b). If an EIS is 
prepared, the EIS shall be prepared by DOE or by a contractor that is 
selected by DOE and that may be funded by the applicant, in accordance 
with 40 CFR 1506.5(c). The contractor shall provide a disclosure 
statement in accordance with 40 CFR 1506.5(c), as discussed in Sec. 
1021.312(b)(4) of this part. DOE shall complete any NEPA documents (or 
evaluation of any EA prepared by the applicant) before rendering a final 
decision on the application and shall consider the NEPA document in 
reaching its decision, as provided in Sec. 1021.210 of this part.



Sec. 1021.216  Procurement, financial assistance, and joint ventures.

    (a) This section applies to DOE competitive and limited-source 
procurements, to awards of financial assistance by a competitive 
process, and to joint ventures entered into as a result of competitive 
solicitations, unless the action is categorically excluded from 
preparation of an EA or EIS under subpart D of this part. Paragraphs 
(b), (c), and (i) of this section apply as well to DOE sole-source 
procurements of sites, systems, or processes, to noncompetitive awards 
of financial assistance, and to sole-source joint ventures, unless the 
action is categorically excluded from preparation of an EA or EIS under 
subpart D of this part.
    (b) When relevant in DOE's judgment, DOE shall require that 
offeror's submit environmental data and analyses as a discrete part of 
the offeror's proposal. DOE shall specify in its solicitation document 
the type of information and level of detail for environmental data and 
analyses so required. The data will be limited to those reasonably 
available to offerors.
    (c) DOE shall independently evaluate and verify the accuracy of 
environmental data and analyses submitted by offerors.

[[Page 867]]

    (d) For offers in the competitive range, DOE shall prepare and 
consider an environmental critique before the selection.
    (e) The environmental critique will be subject to the 
confidentiality requirements of the procurement process.
    (f) The environmental critique will evaluate the environmental data 
and analyses submitted by offerors; it may also evaluate supplemental 
information developed by DOE as necessary for a reasoned decision.
    (g) The environmental critique will focus on environmental issues 
that are pertinent to a decision on proposals and will include:
    (1) A brief discussion of the purpose of the procurement and each 
offer, including any site, system, or process variations among the 
offers having environmental implications;
    (2) A discussion of the salient characteristics of each offeror's 
proposed site, system, or process as well as alternative sites, systems, 
or processes;
    (3) A brief comparative evaluation of the potential environmental 
impacts of the offers, which will address direct and indirect effects, 
short-term and long-term effects, proposed mitigation measures, adverse 
effects that cannot be avoided, areas where important environmental 
information is incomplete and unavailable, unresolved environmental 
issues and practicable mitigating measures not included in the offeror's 
proposal; and
    (4) To the extent known for each offer, a list of Federal, Tribal, 
state, and local government permits, licenses, and approvals that must 
be obtained.
    (h) DOE shall prepare a publicly available environmental synopsis, 
based on the environmental critique, to document the consideration given 
to environmental factors and to record that the relevant environmental 
consequences of reasonable alternatives have been evaluated in the 
selection process. The synopsis will not contain business, confidential, 
trade secret or other information that DOE otherwise would not disclose 
pursuant to 18 U.S.C. 1905, the confidentiality requirements of the 
competitive procurement process, 5 U.S.C. 552(b) and 41 U.S.C. 423. To 
assure compliance with this requirement, the synopsis will not contain 
data or other information that may in any way reveal the identity of 
offerors. After a selection has been made, the environmental synopsis 
shall be filed with EPA, shall be made publicly available, and shall be 
incorporated in any NEPA document prepared under paragraph (i) of this 
section.
    (i) If an EA or EIS is required, DOE shall prepare, consider and 
publish the EA or EIS in conformance with the CEQ Regulations and other 
provisions of this part before taking any action pursuant to the 
contract or award of financial assistance (except as provided at 40 CFR 
1506.1 and Sec. 1021.211 of this part). If the NEPA process is not 
completed before the award of the contract, financial assistance, or 
joint venture, then the contract, financial assistance, or joint venture 
shall be contingent on completion of the NEPA process (except as 
provided at 40 CFR 1506.1 and Sec. 1021.211 of this part). DOE shall 
phase subsequent contract work to allow the NEPA review process to be 
completed in advance of a go/no-go decision.



                    Subpart C_Implementing Procedures



Sec. 1021.300  General requirements.

    (a) DOE shall determine, under the procedures in the CEQ Regulations 
and this part, whether any DOE proposal:
    (1) Requires preparation of an EIS;
    (2) Requires preparation of an EA; or
    (3) Is categorically excluded from preparation of either an EIS or 
an EA.

DOE shall prepare any pertinent documents as required by NEPA, the CEQ 
Regulations, or this part.
    (b) Notwithstanding any other provision of these regulations, DOE 
may prepare a NEPA document for any DOE action at any time in order to 
further the purposes of NEPA. This may be done to analyze the 
consequences of ongoing activities, support DOE planning, assess the 
need for mitigation, fully disclose the potential environmental 
consequences of DOE actions, or for any other reason. Documents prepared 
under this paragraph shall be prepared in the same manner as DOE 
documents prepared under paragraph (a) of this section.

[[Page 868]]



Sec. 1021.301  Agency review and public participation.

    (a) DOE shall make its NEPA documents available to other Federal 
agencies, states, local governments, American Indian tribes, interested 
groups, and the general public, in accordance with 40 CFR 1506.6, except 
as provided in Sec. 1021.340 of this part.
    (b) Wherever feasible, DOE NEPA documents shall explain technical, 
scientific, or military terms or measurements using terms familiar to 
the general public, in accordance with 40 CFR 1502.8.
    (c) DOE shall notify the host state and host tribe of a DOE 
determination to prepare an EA or EIS for a DOE proposal, and may notify 
any other state or American Indian tribe that, in DOE's judgment, may be 
affected by the proposal.
    (d) DOE shall provide the host state and host tribe with an 
opportunity to review and comment on any DOE EA prior to DOE's approval 
of the EA. DOE may also provide any other state or American Indian tribe 
with the same opportunity if, in DOE's judgment, the state or tribe may 
be affected by the proposed action. At DOE's discretion, this review 
period shall be from 14 to 30 days. DOE shall consider all comments 
received from a state or tribe during the review period before approving 
or modifying the EA, as appropriate. If all states and tribes afforded 
this opportunity for preapproval review waive such opportunity, or 
provide a response before the end of the comment period, DOE may proceed 
to approve or take other appropriate action on the EA before the end of 
the review period.
    (e) Paragraphs (c) and (d) of this section shall not apply to power 
marketing actions, such as rate-setting, in which a state or American 
Indian tribe is a customer, or to any other circumstances where DOE 
determines that such advance information could create a conflict of 
interest.



Sec. 1021.310  Environmental impact statements.

    DOE shall prepare and circulate EISs and related RODs in accordance 
with the requirements of the CEQ Regulations, as supplemented by this 
subpart. DOE shall include in draft and final EISs a disclosure 
statement executed by any contractor (or subcontractor) under contract 
with DOE to prepare the EIS document, in accordance with 40 CFR 
1506.5(c).

[61 FR 36239, July 9, 1996]



Sec. 1021.311  Notice of intent and scoping.

    (a) DOE shall publish an NOI in the Federal Register in accordance 
with 40 CFR 1501.7 and containing the elements specified in 40 CFR 
1508.22 as soon as practicable after a decision is made to prepare an 
EIS. However, if there will be a lengthy period of time between its 
decision to prepare an EIS and the time of actual preparation, DOE may 
defer publication of the NOI until a reasonable time before preparing 
the EIS, provided that DOE allows a reasonable opportunity for 
interested parties to participate in the EIS process. Through the NOI, 
DOE shall invite comments and suggestions on the scope of the EIS. DOE 
shall disseminate the NOI in accordance with 40 CFR 1506.6.
    (b) If there will be a lengthy delay between the time DOE has 
decided to prepare an EIS and the beginning of the public scoping 
process, DOE may publish an Advance NOI in the Federal Register to 
provide an early opportunity to inform interested parties of the pending 
EIS or to solicit early public comments. This Advance NOI does not serve 
as a substitute for the NOI provided for in paragraph (a) of this 
section.
    (c) Publication of the NOI in the Federal Register shall begin the 
public scoping process. The public scoping process for a DOE EIS shall 
allow a minimum of 30 days for the receipt of public comments.
    (d) Except as provided in paragraph (g) of this section, DOE shall 
hold at least one public scoping meeting as part of the public scoping 
process for a DOE EIS. DOE shall announce the location, date, and time 
of public scoping meetings in the NOI or by other appropriate means, 
such as additional notices in the Federal Register, news releases to the 
local media, or letters to affected parties. Public scoping meetings 
shall not be held until at least 15 days after public notification.

[[Page 869]]

Should DOE change the location, date, or time of a public scoping 
meeting, or schedule additional public scoping meetings, DOE shall 
publicize these changes in the Federal Register or in other ways as 
appropriate.
    (e) In determining the scope of the EIS, DOE shall consider all 
comments received during the announced comment period held as part of 
the public scoping process. DOE may also consider comments received 
after the close of the announced comment period.
    (f) A public scoping process is optional for DOE supplemental EISs 
(40 CFR 1502.9(c)(4)). If DOE initiates a public scoping process for a 
supplemental EIS, the provisions of paragraphs (a) through (f) of this 
section shall apply.

[57 FR 15144, Apr. 24, 1992, as amended at 61 FR 36239, July 9, 1996]



Sec. 1021.312  [Reserved]



Sec. 1021.313  Public review of environmental impact statements.

    (a) The public review and comment period on a DOE draft EIS shall be 
no less than 45 days (40 CFR 1506.10(c)). The public comment period 
begins when EPA publishes a Notice of Availability of the document in 
the Federal Register.
    (b) DOE shall hold at least one public hearing on DOE draft EISs. 
Such public hearings shall be announced at least 15 days in advance. The 
announcement shall identify the subject of the draft EIS and include the 
location, date, and time of the public hearings.
    (c) DOE shall prepare a final EIS following the public comment 
period and hearings on the draft EIS. The final EIS shall respond to 
oral and written comments received during public review of the draft 
EIS, as provided at 40 CFR 1503.4. In addition to the requirements at 40 
CFR 1502.9(b), a DOE final EIS may include any Statement of Findings 
required by 10 CFR part 1022, ``Compliance with Floodplain and Wetland 
Environmental Review Requirements,'' or a Statement of Findings may be 
issued separately.
    (d) DOE shall use appropriate means to publicize the availability of 
draft and final EISs and the time and place for public hearings on a 
draft EIS. The methods chosen should focus on reaching persons who may 
be interested in or affected by the proposal and may include the methods 
listed in 40 CFR 1506.6(b)(3).

[57 FR 15144, Apr. 24, 1992, as amended at 68 FR 51432, Aug. 27, 2003]



Sec. 1021.314  Supplemental environmental impact statements.

    (a) DOE shall prepare a supplemental EIS if there are substantial 
changes to the proposal or significant new circumstances or information 
relevant to environmental concerns, as discussed in 40 CFR 1502.9(c)(1).
    (b) DOE may supplement a draft EIS or final EIS at any time, to 
further the purposes of NEPA, in accordance with 40 CFR 1502.9(c)(2).
    (c) When it is unclear whether or not an EIS supplement is required, 
DOE shall prepare a Supplement Analysis.
    (1) The Supplement Analysis shall discuss the circumstances that are 
pertinent to deciding whether to prepare a supplemental EIS, pursuant to 
40 CFR 1502.9(c).
    (2) The Supplement Analysis shall contain sufficient information for 
DOE to determine whether:
    (i) An existing EIS should be supplemented;
    (ii) A new EIS should be prepared; or
    (iii) No further NEPA documentation is required.
    (3) DOE shall make the determination and the related Supplement 
Analysis available to the public for information. Copies of the 
determination and Supplement Analysis shall be provided upon written 
request. DOE shall make copies available for inspection in the 
appropriate DOE public reading room(s) or other appropriate location(s) 
for a reasonable time.
    (d) DOE shall prepare, circulate, and file a supplement to a draft 
or final EIS in the same manner as any other draft and final EISs, 
except that scoping is optional for a supplement. If DOE decides to take 
action on a proposal covered by a supplemental EIS, DOE shall prepare a 
ROD in accordance with the provisions of Sec. 1021.315 of this part.
    (e) When applicable, DOE will incorporate an EIS supplement, or the 
determination and supporting Supplement Analysis made under paragraph

[[Page 870]]

(c) of this section, into any related formal administrative record on 
the action that is the subject of the EIS supplement or determination 
(40 CFR 1502.9(c)(3)).



Sec. 1021.315  Records of decision.

    (a) No decision may be made on a proposal covered by an EIS during a 
30-day ``waiting period'' following completion of the final EIS, except 
as provided at 40 CFR 1506.1 and 1506.10(b) and Sec. 1021.211 of this 
part. The 30-day period starts when the EPA Notice of Availability for 
the final EIS is published in the Federal Register.
    (b) If DOE decides to take action on a proposal covered by an EIS, a 
ROD shall be prepared as provided at 40 CFR 1505.2 (except as provided 
at 40 CFR 1506.1 and Sec. 1021.211 of this part).
    (c) DOE RODs shall be published in the Federal Register and made 
available to the public as specified in 40 CFR 1506.6, except as 
provided in 40 CFR 1507.3(c) and Sec. 1021.340 of this part.
    (d) No action shall be taken until the decision has been made 
public. DOE may implement the decision before the ROD is published in 
the Federal Register if the ROD has been signed and the decision and the 
availability of the ROD have been made public by other means (e.g., 
press release, announcement in local media).
    (e) DOE may revise a ROD at any time, so long as the revised 
decision is adequately supported by an existing EIS. A revised ROD is 
subject to the provisions of paragraphs (b), (c), and (d) of this 
section.

[57 FR 15144, Apr. 24, 1992, as amended at 61 FR 36239, July 9 1996]



Sec. 1021.320  Environmental assessments.

    DOE shall prepare and circulate EAs and related FONSIs in accordance 
with the requirements of the CEQ Regulations, as supplemented by this 
subpart.



Sec. 1021.321  Requirements for environmental assessments.

    (a) When to prepare an EA. As required by 40 CFR 1501.4(b), DOE 
shall prepare an EA for a proposed DOE action that is described in the 
classes of actions listed in appendix C to subpart D of this part, and 
for a proposed DOE action that is not described in any of the classes of 
actions listed in appendices A, B, or D to subpart D, except that an EA 
is not required if DOE has decided to prepare an EIS. DOE may prepare an 
EA on any action at any time in order to assist agency planning and 
decisionmaking.
    (b) Purposes. A DOE EA shall serve the purposes identified in 40 CFR 
1508.9(a), which include providing sufficient evidence and analysis for 
determining whether to prepare an EIS or to issue a FONSI. If 
appropriate, a DOE EA shall also include any floodplain/wetlands 
assessment prepared under 10 CFR part 1022 and may include analyses 
needed for other environmental determinations.
    (c) Content. A DOE EA shall comply with the requirements found at 40 
CFR 1508.9. In addition to any other alternatives, DOE shall assess the 
no action alternative in an EA, even when the proposed action is 
specifically required by legislation or a court order.



Sec. 1021.322  Findings of no significant impact.

    (a) DOE shall prepare a FONSI only if the related EA supports the 
finding that the proposed action will not have a significant effect on 
the human environment. If a required DOE EA does not support a FONSI, 
DOE shall prepare an EIS and issue a ROD before taking action on the 
proposal addressed by the EA, except as permitted under 40 CFR 1506.1 
and Sec. 1021.211 of this part.
    (b) In addition to the requirements found at 40 CFR 1508.13, a DOE 
FONSI shall include the following:
    (1) Any commitments to mitigations that are essential to render the 
impacts of the proposed action not significant, beyond those mitigations 
that are integral elements of the proposed action, and a reference to 
the Mitigation Action Plan prepared under Sec. 1021.331 of this part;
    (2) Any ``Statement of Findings'' required by 10 CFR part 1022, 
``Compliance with Floodplain/Wetlands Environmental Review 
Requirements'';
    (3) The date of issuance; and
    (4) The signature of the DOE approving official.
    (c) DOE shall make FONSIs available to the public as provided at 40 
CFR

[[Page 871]]

1501.4(e)(1) and 1506.6; DOE shall make copies available for inspection 
in the appropriate DOE public reading room(s) or other appropriate 
location(s) for a reasonable time.
    (d) DOE shall issue a proposed FONSI for public review and comment 
before making a final determination on the FONSI if required by 40 CFR 
1501.4(e)(2); DOE may issue a proposed FONSI for public review and 
comment in other situations as well.
    (e) Upon issuance of the FONSI, DOE may proceed with the proposed 
action subject to any mitigation commitments expressed in the FONSI that 
are essential to render the impacts of the proposed action not 
significant.
    (f) DOE may revise a FONSI at any time, so long as the revision is 
supported by an existing EA. A revised FONSI is subject to all 
provisions of paragraph (d) of this section.

[57 FR 15144, Apr. 24, 1992, as amended at 61 FR 36239, July 9, 1996]



Sec. 1021.330  Programmatic (including site-wide) NEPA documents.

    (a) When required to support a DOE programmatic decision (40 CFR 
1508.18(b)(3)), DOE shall prepare a programmatic EIS or EA (40 CFR 
1502.4). DOE may also prepare a programmatic EIS or EA at any time to 
further the purposes of NEPA.
    (b) A DOE programmatic NEPA document shall be prepared, issued, and 
circulated in accordance with the requirements for any other NEPA 
document, as established by the CEQ Regulations and this part.
    (c) As a matter of policy when not otherwise required, DOE shall 
prepare site-wide EISs for certain large, multiple-facility DOE sites; 
DOE may prepare EISs or EAs for other sites to assess the impacts of all 
or selected functions at those sites.
    (d) DOE shall evaluate site wide NEPA documents prepared under Sec. 
1021.330(c) at least every five years. DOE shall evaluate site-wide EISs 
by means of a Supplement Analysis, as provided in Sec. 1021.314. Based 
on the Supplement Analysis, DOE shall determine whether the existing EIS 
remains adequate or whether to prepare a new site-wide EIS or supplement 
the existing EIS, as appropriate. The determination and supporting 
analysis shall be made available in the appropriate DOE public reading 
room(s) or in other appropriate location(s) for a reasonable time.
    (e) DOE shall evaluate site-wide EAs by means of an analysis similar 
to the Supplement Analysis to determine whether the existing site-wide 
EA remains adequate, whether to prepare a new site-wide EA, revise the 
FONSI, or prepare a site wide EIS, as appropriate. The determination and 
supporting analysis shall be made available in the appropriate DOE 
public reading room(s) or in other appropriate location(s) for a 
reasonable time.



Sec. 1021.331  Mitigation action plans.

    (a) Following completion of each EIS and its associated ROD, DOE 
shall prepare a Mitigation Action Plan that addresses mitigation 
commitments expressed in the ROD. The Mitigation Action Plan shall 
explain how the corresponding mitigation measures, designed to mitigate 
adverse environmental impacts associated with the course of action 
directed by the ROD, will be planned and implemented. The Mitigation 
Action Plan shall be prepared before DOE takes any action directed by 
the ROD that is the subject of a mitigation commitment.
    (b) In certain circumstances, as specified in Sec. 1021.322(b)(2), 
DOE shall also prepare a Mitigation Action Plan for commitments to 
mitigations that are essential to render the impacts of the proposed 
action not significant. The Mitigation Action Plan shall address all 
commitments to such necessary mitigations and explain how mitigation 
will be planned and implemented. The Mitigation Action Plan shall be 
prepared before the FONSI is issued and shall be referenced therein.
    (c) Each Mitigation Action Plan shall be as complete as possible, 
commensurate with the information available regarding the course of 
action either directed by the ROD or the action to be covered by the 
FONSI, as appropriate. DOE may revise the Plan as more specific and 
detailed information becomes available.
    (d) DOE shall make copies of the Mitigation Action Plans available 
for

[[Page 872]]

inspection in the appropriate DOE public reading room(s) or other 
appropriate location(s) for a reasonable time. Copies of the Mitigation 
Action Plans shall also be available upon written request.



Sec. 1021.340  Classified, confidential, and otherwise exempt information.

    (a) Notwithstanding other sections of this part, DOE shall not 
disclose classified, confidential, or other information that DOE 
otherwise would not disclose pursuant to the Freedom of Information Act 
(FOIA) (5 U.S.C. 552) and 10 CFR 1004.10(b) of DOE's regulations 
implementing the FOIA, except as provided by 40 CFR 1506.6(f).
    (b) To the fullest extent possible, DOE shall segregate any 
information that is exempt from disclosure requirements into an appendix 
to allow public review of the remainder of a NEPA document.
    (c) If exempt information cannot be segregated, or if segregation 
would leave essentially meaningless material, DOE shall withhold the 
entire NEPA document from the public; however, DOE shall prepare the 
NEPA document, in accordance with the CEQ Regulations and this part, and 
use it in DOE decisionmaking.



Sec. 1021.341  Coordination with other environmental review requirements.

    (a) In accordance with 40 CFR 1500.4(k) and (o), 1502.25, and 
1506.4, DOE shall integrate the NEPA process and coordinate NEPA 
compliance with other environmental review requirements to the fullest 
extent possible.
    (b) To the extent possible, DOE shall determine the applicability of 
other environmental requirements early in the planning process, in 
consultation with other agencies when necessary or appropriate, to 
ensure compliance and to avoid delays, and shall incorporate any 
relevant requirements as early in the NEPA review process as possible.



Sec. 1021.342  Interagency cooperation.

    For DOE programs that involve another Federal agency or agencies in 
related decisions subject to NEPA, DOE will comply with the requirements 
of 40 CFR 1501.5 and 1501.6. As part of this process, DOE shall 
cooperate with the other agencies in developing environmental 
information and in determining whether a proposal requires preparation 
of an EIS or EA, or can be categorically excluded from preparation of 
either. Further, where appropriate and acceptable to the other agencies, 
DOE shall develop or cooperate in the development of interagency 
agreements to facilitate coordination and to reduce delay and 
duplication.



Sec. 1021.343  Variances.

    (a) Emergency actions. DOE may take an action without observing all 
provisions of this part or the CEQ Regulations, in accordance with 40 
CFR 1506.11, in emergency situations that demand immediate action. DOE 
shall consult with CEQ as soon as possible regarding alternative 
arrangements for emergency actions having significant environmental 
impacts. DOE shall document, including publishing a notice in the 
Federal Register, emergency actions covered by this paragraph within 30 
days after such action occurs; this documentation shall identify any 
adverse impacts from the actions taken, further mitigation necessary, 
and any NEPA documents that may be required.
    (b) Reduction of time periods. On a case-by-case basis, DOE may 
reduce time periods established in this part that are not required by 
the CEQ Regulations. If DOE determines that such reduction is necessary, 
DOE shall publish a notice in the Federal Register specifying the 
revised time periods and the rationale for the reduction.
    (c) Other. Any variance from the requirements of this part, other 
than as provided by paragraphs (a) and (b) of this section, must be 
soundly based on the interests of national security or the public 
health, safety, or welfare and must have the advance written approval of 
the Secretary; however, the Secretary is not authorized to waive or 
grant a variance from any requirement of the CEQ Regulations (except as 
provided for in those regulations). If the Secretary determines that a 
variance from the requirements of this part is within his/her authority 
to grant and is necessary, DOE shall publish a notice in the Federal 
Register specifying the variance granted and the reasons.

[[Page 873]]



                  Subpart D_Typical Classes of Actions



Sec. 1021.400  Level of NEPA review.

    (a) This subpart identifies DOE actions that normally:
    (1) Do not require preparation of either an EIS or an EA (are 
categorically excluded from preparation of either document) (appendices 
A and B to this subpart D);
    (2) Require preparation of an EA, but not necessarily an EIS 
(appendix C to this subpart D); or
    (3) Require preparation of an EIS (appendix D to this subpart D).
    (b) Any completed, valid NEPA review does not have to be repeated, 
and no completed NEPA documents need to be redone by reasons of these 
regulations, except as provided in Sec. 1021.314.
    (c) If a DOE proposal is encompassed within a class of actions 
listed in the appendices to this subpart D, DOE shall proceed with the 
level of NEPA review indicated for that class of actions, unless there 
are extraordinary circumstances related to the specific proposal that 
may affect the significance of the environmental effects of the 
proposal.
    (d) If a DOE proposal is not encompassed within the classes of 
actions listed in the appendices to this subpart D, or if there are 
extraordinary circumstances related to the proposal that may affect the 
significance of the environmental effects of the proposal, DOE shall 
either:
    (1) Prepare an EA and, on the basis of that EA, determine whether to 
prepare an EIS or a FONSI; or
    (2) Prepare an EIS and ROD.



Sec. 1021.410  Application of categorical exclusions (classes of actions that normally do not require EAs or EISs).

    (a) The actions listed in appendices A and B to this subpart D are 
classes of actions that DOE has determined do not individually or 
cumulatively have a significant effect on the human environment 
(categorical exclusions).
    (b) To find that a proposal is categorically excluded, DOE shall 
determine the following:
    (1) The proposal fits within a class of actions that is listed in 
appendix A or B to this subpart D;
    (2) There are no extraordinary circumstances related to the proposal 
that may affect the significance of the environmental effects of the 
proposal. Extraordinary circumstances are unique situations presented by 
specific proposals, such as scientific controversy about the 
environmental effects of the proposal; uncertain effects or effects 
involving unique or unknown risks; or unresolved conflicts concerning 
alternate uses of available resources within the meaning of section 
102(2)(E) of NEPA; and
    (3) The proposal is not ``connected'' (40 CFR 1508.25(a)(1)) to 
other actions with potentially significant impacts, is not related to 
other proposed actions with cumulatively significant impacts (40 CFR 
1508.25(a)(2)), and is not precluded by 40 CFR 1506.1 or Sec. 1021.211 
of this part.
    (c) All categorical exclusions may be applied by any organizational 
element of DOE. The sectional divisions in appendix B to this subpart D 
are solely for purposes of organization of that appendix and are not 
intended to be limiting.
    (d) A class of actions includes activities foreseeably necessary to 
proposals encompassed within the class of actions (such as associated 
transportation activities and award of implementing grants and 
contracts).



   Sec. Appendix A to Subpart D of Part 1021--Categorical Exclusions 
                  Applicable to General Agency Actions

                            Table of Contents

A1. Routine administrative/financial/personnel actions
A2. Contract interpretations/amendments/modifications, clarifying or 
          administrative
A3. Certain actions by Office of Hearings and Appeals
A4. Interpretations/rulings for existing regulations
A5. Rulemaking (interpreting/amending), no change in environmental 
          effect
A6. Rulemakings, procedural
A7. Transfer of property, use unchanged
A8. Award of contracts for technical support/management and operation/
          personal services

[[Page 874]]

A9. Information gathering/data analysis/document preparation/
          dissemination
A10. Reports or recommendations on non-DOE legislation
A11. Technical advice and assistance to organizations
A12. Emergency preparedness planning
A13. Procedural Orders, Notices, and guidelines
A14. Approval of technical exchange arrangements
A15. Umbrella agreements for cooperation in energy research and 
          development

    A1 Routine actions necessary to support the normal conduct of agency 
business, such as administrative, financial, and personnel actions.
    A2 Contract interpretations, amendments, and modifications that are 
clarifying or administrative in nature.
    A3 Adjustments, exceptions, exemptions, appeals, and stays, 
modifications, or rescissions of orders issued by the Office of Hearings 
and Appeals.
    A4 Interpretations and rulings with respect to existing regulations, 
or modifications or rescissions of such interpretations and rulings.
    A5 Rulemaking interpreting or amending an existing rule or 
regulation that does not change the environmental effect of the rule or 
regulation being amended.
    A6 Rulemakings that are strictly procedural, such as rulemaking 
(under 48 CFR part 9) establishing procedures for technical and pricing 
proposals and establishing contract clauses and contracting practices 
for the purchase of goods and services, and rulemaking (under 10 CFR 
part 600) establishing application and review procedures for, and 
administration, audit, and closeout of, grants and cooperative 
agreements.
    A7 Transfer, lease, disposition, or acquisition of interests in 
personal property (e.g., equipment and materials) or real property 
(e.g., permanent structures and land), if property use is to remain 
unchanged; i.e., the type and magnitude of impacts would remain 
essentially the same.
    A8 Award of contracts for technical support services, management and 
operation of a government-owned facility, and personal services.
    A9 Information gathering (including, but not limited to, literature 
surveys, inventories, audits), data analysis (including computer 
modelling), document preparation (such as conceptual design or 
feasibility studies, analytical energy supply and demand studies), and 
dissemination (including, but not limited to, document mailings, 
publication, and distribution; and classroom training and informational 
programs), but not including site characterization or environmental 
monitoring. (Also see B3.1.)
    A10 Reports or recommendations on legislation or rulemaking that is 
not proposed by DOE.
    A11 Technical advice and planning assistance to international, 
national, state, and local organizations.
    A12 Emergency preparedness planning activities, including the 
designation of onsite evacuation routes.
    A13 Administrative, organizational, or procedural Orders, Notices, 
and guidelines.
    A14 Approval of technical exchange arrangements for information, 
data, or personnel with other countries or international organizations, 
including, but not limited to, assistance in identifying and analyzing 
another country's energy resources, needs and options.
    A15 Approval of DOE participation in international ``umbrella'' 
agreements for cooperation in energy research and development activities 
that would not commit the U.S. to any specific projects or activities.

[57 FR 15144, Apr. 24, 1992, as amended at 61 FR 36239, July 9, 1996]



   Sec. Appendix B to Subpart D of Part 1021--Categorical Exclusions 
                  Applicable to Specific Agency Actions

                            Table of Contents

B Conditions that are integral elements of the classes of actions in 
          appendix B
B1 Categorical exclusions applicable to facility operation
B1.1 Rate increases less than inflation (not power marketing, but see 
          B4.3)
B1.2 Training exercises and simulation
B1.3 Routine maintenance/custodial services for buildings, structures, 
          infrastructures, equipment
B1.4 Installation/modification of air conditioning systems for existing 
          equipment
B1.5 Improvements to cooling water systems within existing building, 
          structure
B1.6 Installation/modification of retention tanks, small basins to 
          control runoff, spills
B1.7 Acquisition/installation/operation/removal of communication 
          systems, data processing equipment
B1.8 Modifications to screened water intake/outflow structures
B1.9 Placement of airway safety markings/painting (not lighting) of 
          existing lines, antennas
B1.10 Routine onsite storage of activated material at existing facility
B1.11 Fencing, no adverse effect on wildlife movement/surface water flow
B1.12 Detonation/burning of failed/damaged high explosives or 
          propellants
B1.13 Construction/acquisition/relocation of onsite pathways, short 
          onsite access roads/railroads

[[Page 875]]

B1.14 Refueling of a nuclear reactor
B1.15 Siting/construction/operation of support buildings/support 
          structures
B1.16 Removal of asbestos from buildings
B1.17 Removal of polychlorinated biphenyl-containing items from 
          buildings, other aboveground locations
B1.18 Siting/construction/operation of additional/replacement water 
          supply wells
B1.19 Siting/construction/operation of microwave/radio communication 
          towers
B1.20 Protect/restore/improve fish and wildlife habitat
B1.21 Noise abatement
B1.22 Relocation of buildings
B1.23 Demolition/disposal of buildings
B1.24 Transfer of structures/residential, commercial, industrial use
B1.25 Transfer of land/habitat preservation, wildlife management
B1.26 Siting/construction/operation/decommissioning of small water 
          treatment facilities, less than approximately 250,000 gallons 
          per day capacity
B1.27 Disconnection of utilities
B1.28 Minor activities to place a facility in an environmentally safe 
          condition, no proposed uses
B1.29 Siting/construction/operation/decommissioning of small onsite 
          disposal facility for construction and demolition waste
B1.30 Transfer actions
B1.31 Relocation/operation of machinery and equipment
B1.32 Traffic flow adjustments, existing roads
B2 Categorical exclusions applicable to safety and health
B2.1 Modifications to enhance workplace habitability
B2.2 Installation of/improvements to building/equipment instrumentation 
          (remote controls, emergency warning systems, monitors)
B2.3 Installation of equipment for personnel safety and health
B2.4 Equipment Qualification Programs
B2.5 Safety and environmental improvements of a facility, replacement/
          upgrade of facility components
B2.6 Packaging/transportation/storage of radioactive sources upon 
          request by the Nuclear Regulatory Commission or other 
          cognizant agency
B3 Categorical exclusions applicable to site characterization, 
          monitoring, and general research
B3.1 Site characterization/environmental monitoring
B3.2 Aviation activities for survey/monitoring/security
B3.3 Research related to conservation of fish and wildlife
B3.4 Transport packaging tests for radioactive/hazardous material
B3.5 Tank car tests
B3.6 Siting/construction/operation/decommissioning of facilities for 
          bench-scale research, conventional laboratory operations, 
          small-scale research and development and pilot projects
B3.7 Siting/construction/operation of new infill exploratory, 
          experimental oil/gas/geothermal wells
B3.8 Outdoor ecological/environmental research in small area
B3.9 Certain Clean Coal Technology Demonstration Program activities
B3.10 Siting/construction/operation/decommissioning of particle 
          accelerators, including electron beam accelerators, primary 
          beam energy less than approximately 100 MeV
B3.11 Outdoor tests, experiments on materials and equipment components, 
          no source, special nuclear, or byproduct materials involved
B3.12 Siting/construction/operation/decommissioning of microbiological 
          and biomedical facilities
B3.13 Magnetic fusion experiments, no tritium fuel use
B4 Categorical exclusions applicable to Power Marketing Administrations 
          and to all of DOE with regard to power resources
B4.1 Contracts/marketing plans/policies for excess electric power.
B4.2 Export of electric energy.
B4.3 Electric power marketing rate changes, within normal operating 
          limits.
B4.4 Power marketing services within normal operating limits
B4.5 Temporary adjustments to river operations within existing operating 
          constraints
B4.6 Additions/modifications to electric power transmission facilities 
          within previously developed area.
B4.7 Adding/burying fiber optic cable
B4.8 New electricity transmission agreements for transfer of power
B4.9 Multiple use of DOE transmission line rights-of-way
B4.10 Deactivation, dismantling and removal of electric powerlines and 
          substations.
B4.11 Construction or modification of electric power substations.
B4.12 Construction of electric powerlines approximately 10 miles in 
          length or less, not integrating major new sources.
B4.13 Reconstruction and minor relocation of existing electric 
          powerlines approximately 20 miles in length or less.
B5 Categorical exclusions applicable to conservation, fossil, and 
          renewable energy activities
B5.1 Actions to conserve energy
B5.2 Modifications to oil/gas/geothermal pumps and piping

[[Page 876]]

B5.3 Modification (not expansion)/abandonment of oil storage access/
          brine injection/gas/geothermal wells, not part of site closure
B5.4 Repair/replacement of sections of pipeline within maintenance 
          provisions
B5.5 Construction/operation of short crude oil/gas/steam/geothermal 
          pipeline segments
B5.6 Oil spill cleanup operations
B5.7 Import/export natural gas, no new construction
B5.8 Import/export natural gas, new cogeneration powerplant
B5.9 Temporary exemption for any electric powerplant
B5.10 Certain permanent exemptions for any existing electric powerplant
B5.11 Permanent exemption for mixed natural gas and petroleum
B5.12 Workover of existing oil/gas/geothermal well
B6 Categorical exclusions applicable to environmental restoration and 
          waste management activities
B6.1 Small-scale, short-term cleanup actions under RCRA, Atomic Energy 
          Act, or other authorities
B6.2 Siting/construction/operation of pilot-scale waste collection/
          treatment/stabilization/containment facilities
B6.3 Improvements to environmental control systems
B6.4 Siting/construction/operation/decommissioning of facility for 
          storing packaged hazardous waste for 90 days or less
B6.5 Siting/construction/operation/decommissioning of facility for 
          characterizing/sorting packaged waste, overpacking waste
B6.6 Modification of facility for storing, packaging, repacking waste 
          (not high-level, spent nuclear fuel)
B6.7 Granting/denying petitions for allocation of commercial disposal 
          capacity
B6.8 Modifications for waste minimization/reuse of materials
B6.9 Small-scale temporary measures to reduce migration of contaminated 
          groundwater
B6.10 Siting/construction/operation/decommissioning of small upgraded or 
          replacement waste storage facilities
B7 Categorical exclusions applicable to international activities
B7.1 Emergency measures under the International Energy Program
B7.2 Import/export of special nuclear or isotopic materials

 B. Conditions That Are Integral Elements of the Classes of Actions in 
                               Appendix B

    B. The classes of actions listed below include the following 
conditions as integral elements of the classes of actions. To fit within 
the classes of actions listed below, a proposal must be one that would 
not:
    (1) Threaten a violation of applicable statutory, regulatory, or 
permit requirements for environment, safety, and health, including 
requirements of DOE and/or Executive Orders.
    (2) Require siting and construction or major expansion of waste 
storage, disposal, recovery, or treatment facilities (including 
incinerators), but the proposal may include categorically excluded waste 
storage, disposal, recovery, or treatment actions.
    (3) Disturb hazardous substances, pollutants, contaminants, or 
CERCLA-excluded petroleum and natural gas products that preexist in the 
environment such that there would be uncontrolled or unpermitted 
releases; or
    (4) Adversely affect environmentally sensitive resources. An action 
may be categorically excluded if, although sensitive resources are 
present on a site, the action would not adversely affect those resources 
(e.g., construction of a building with its foundation well above a sole-
source aquifer or upland surface soil removal on a site that has 
wetlands). Environmentally sensitive resources include, but are not 
limited to:
    (i) Property (e.g., sites, buildings, structures, objects) of 
historic, archeological, or architectural significance designated by 
Federal, state, or local governments or property eligible for listing on 
the National Register of Historic Places;
    (ii) Federally-listed threatened or endangered species or their 
habitat (including critical habitat), Federally- proposed or candidate 
species or their habitat, or state-listed endangered or threatened 
species or their habitat;
    (iii) Wetlands regulated under the Clean Water Act (33 U.S.C. 1344) 
and floodplains;
    (iv) Areas having a special designation such as Federally- and 
state-designated wilderness areas, national parks, national natural 
landmarks, wild and scenic rivers, state and Federal wildlife refuges, 
and marine sanctuaries;
    (v) Prime agricultural lands;
    (vi) Special sources of water (such as sole-source aquifers, 
wellhead protection areas, and other water sources that are vital in a 
region); and
    (vii) Tundra, coral reefs, or rain forests.

       B1. Categorical Exclusions Applicable to Facility Operation

    B1.1 Rate increases for products or services marketed by parts of 
DOE other than Power Marketing Administrations and approval of rate 
increases for non-DOE entities that do not exceed the change in the 
overall price level in the economy (inflation), as measured by the Gross 
National Product (GNP) fixed weight price index published by the 
Department of Commerce, during the period since the last rate increase. 
(Also see B4.3.)

[[Page 877]]

    B1.2 Training exercises and simulations (including, but not limited 
to, firing-range training, emergency response training, fire fighter and 
rescue training, and spill cleanup training).
    B1.3 Routine maintenance activities and custodial services for 
buildings, structures, rights-of-way, infrastructures (e.g., pathways, 
roads, and railroads), vehicles and equipment, and localized vegetation 
and pest control, during which operations may be suspended and resumed. 
Custodial services are activities to preserve facility appearance, 
working conditions, and sanitation, such as cleaning, window washing, 
lawn mowing, trash collection, painting, and snow removal. Routine 
maintenance activities, corrective (that is, repair), preventive, and 
predictive, are required to maintain and preserve buildings, structures, 
infrastructures, and equipment in a condition suitable for a facility to 
be used for its designated purpose. Routine maintenance may result in 
replacement to the extent that replacement is in kind and is not a 
substantial upgrade or improvement. In kind replacement includes 
installation of new components to replace outmoded components if the 
replacement does not result in a significant change in the expected 
useful life, design capacity, or function of the facility. Routine 
maintenance does not include replacement of a major component that 
significantly extends the originally intended useful life of a facility 
(for example, it does not include the replacement of a reactor vessel 
near the end of its useful life). Routine maintenance activities 
include, but are not limited to:
    (a) Repair of facility equipment, such as lathes, mills, pumps, and 
presses;
    (b) Door and window repair or replacement;
    (c) Wall, ceiling, or floor repair;
    (d) Reroofing;
    (e) Plumbing, electrical utility, and telephone service repair;
    (f) Routine replacement of high-efficiency particulate air filters;
    (g) Inspection and/or treatment of currently installed utility 
poles;
    (h) Repair of road embankments;
    (i) Repair or replacement of fire protection sprinkler systems;
    (j) Road and parking area resurfacing, including construction of 
temporary access to facilitate resurfacing;
    (k) Erosion control and soil stabilization measures (such as 
reseeding and revegetation);
    (l) Surveillance and maintenance of surplus facilities in accordance 
with DOE Order 5820.2, ``Radioactive Waste Management'';
    (m) Repair and maintenance of transmission facilities, including 
replacement of conductors of the same nominal voltage, poles, circuit 
breakers, transformers, capacitors, crossarms, insulators, and downed 
transmission lines, in accordance, where appropriate, with 40 CFR part 
761 (Polychlorinated Biphenyls Manufacturing, Processing, Distribution 
in Commerce, and Use Prohibitions);
    (n) Routine testing and calibration of facility components, 
subsystems, or portable equipment (including but not limited to, control 
valves, in-core monitoring devices, transformers, capacitors, monitoring 
wells, lysimeters, weather stations, and flumes); and
    (o) Routine decontamination of the surfaces of equipment, rooms, hot 
cells, or other interior surfaces of buildings (by such activities as 
wiping with rags, using strippable latex, and minor vacuuming), 
including removal of contaminated intact equipment and other materials 
(other than spent nuclear fuel or special nuclear material in nuclear 
reactors).
    B1.4 Installation or modification of air conditioning systems 
required for temperature control for operation of existing equipment.
    B1.5 Minor improvements to cooling water systems within an existing 
building or structure if the improvements would not: (1) Create new 
sources of water or involve new receiving waters; (2) adversely affect 
water withdrawals or the temperature of discharged water; or (3) 
increase introductions of or involve new introductions of hazardous 
substances, pollutants, contaminants, or CERCLA-excluded petroleum and 
natural gas products.
    B1.6 Installation or modification of retention tanks or small 
(normally under one acre) basins and associated piping and pumps for 
existing operations to control runoff or spills (such as under 40 CFR 
part 112). Modifications include, but are not limited to, installing 
liners or covers.
    B1.7 Acquisition, installation, operation, and removal of 
communication systems, data processing equipment, and similar electronic 
equipment.
    B1.8 Modifications to screened water intake and outflow structures 
such that intake velocities and volumes and water effluent quality and 
volumes are consistent with existing permit limits.
    B1.9 Placement of airway safety markings and painting (but excluding 
lighting) of existing electrical transmission lines and antenna 
structures in accordance with Federal Aviation Administration standards.
    B1.10 Routine, onsite storage at an existing facility of activated 
equipment and material (including lead) used at that facility, to allow 
reuse after decay of radioisotopes with short half-lives.
    B1.11 Installation of fencing, including that for border marking, 
that will not adversely affect wildlife movements or surface water flow.
    B1.12 Detonation or burning of explosives or propellants that failed 
in outdoor tests

[[Page 878]]

(i.e., duds) or were damaged in outdoor tests (e.g., by fracturing) in 
outdoor areas designated and routinely used for explosive detonation or 
burning under an existing permit issued by state or local authorities.
    B1.13 Construction, acquisition, and relocation of onsite pathways 
and short onsite access roads and railroads.
    B1.14 Refueling of an operating nuclear reactor, during which 
operations may be suspended and then resumed.
    B1.15 Siting, construction (or modification), and operation of 
support buildings and support structures (including, but not limited to, 
trailers and prefabricated buildings) within or contiguous to an already 
developed area (where active utilities and currently used roads are 
readily accessible). Covered support buildings and structures include 
those for office purposes; parking; cafeteria services; education and 
training; visitor reception; computer and data processing services; 
employee health services or recreation activities; routine maintenance 
activities; storage of supplies and equipment for administrative 
services and routine maintenance activities; security (including 
security posts); fire protection; and similar support purposes, but 
excluding facilities for waste storage activities, except as provided in 
other parts of this appendix.
    B1.16 Removal of asbestos-containing materials from buildings in 
accordance with 40 CFR part 61 (National Emission Standards for 
Hazardous Air Pollutants), subpart M (National Emission Standard for 
Asbestos); 40 CFR part 763 (Asbestos), subpart G (Asbestos Abatement 
Projects); 29 CFR part 1910, subpart I (Personal Protective Equipment), 
Sec. 1910.134 (Respiratory Protection); subpart Z (Toxic and Hazardous 
Substances), Sec. 1910.1001 (Asbestos, tremolite, anthophyllite and 
actinolite); and 29 CFR part 1926 (Safety and Health Regulations for 
Construction), subpart D (Occupational Health and Environmental 
Controls), Sec. 1926.58 (Asbestos, tremolite, anthophyllite, and 
actinolite), other appropriate Occupational Safety and Health 
Administration standards in title 29, chapter XVII of the CFR, and 
appropriate state and local requirements, including certification of 
removal contractors and technicians.
    B1.17 Removal of polychlorinated biphenyl (PCB)-containing items, 
such as transformers or capacitors, PCB-containing oils flushed from 
transformers, PCB-flushing solutions, and PCB-containing spill materials 
from buildings or other aboveground locations in accordance with 40 CFR 
part 761 (Polychlorinated Biphenyls Manufacturing, Processing, 
Distribution in Commerce, and Use Prohibitions).
    B1.18 Siting, construction, and operation of additional water supply 
wells (or replacement wells) within an existing well field, or 
modification of an existing water supply well to restore production, if 
there would be no drawdown other than in the immediate vicinity of the 
pumping well, no resulting long-term decline of the water table, and no 
degradation of the aquifer from the new or replacement well.
    B1.19 Siting, construction, and operation of microwave and radio 
communication towers and associated facilities, if the towers and 
associated facilities would not be in an area of great visual value.
    B1.20 Small-scale activities undertaken to protect, restore, or 
improve fish and wildlife habitat, fish passage facilities (such as fish 
ladders or minor diversion channels), or fisheries.
    B1.21 Noise abatement measures, such as construction of noise 
barriers and installation of noise control materials.
    B1.22 Relocation of buildings (including, but not limited to, 
trailers and prefabricated buildings) to an already developed area 
(where active utilities and currently used roads are readily 
accessible).
    B1.23 Demolition and subsequent disposal of buildings, equipment, 
and support structures (including, but not limited to, smoke stacks and 
parking lot surfaces).
    B1.24 Transfer, lease, disposition or acquisition of interests in 
uncontaminated permanent or temporary structures, equipment therein, and 
only land that is necessary for use of the transferred structures and 
equipment, for residential, commercial, or industrial uses (including, 
but not limited to, office space, warehouses, equipment storage 
facilities) where, under reasonably foreseeable uses, there would not be 
any lessening in quality, or increases in volumes, concentrations, or 
discharge rates, of wastes, air emissions, or water effluents, and 
environmental impacts would generally be similar to those before the 
transfer, lease, disposition, or acquisition of interests. 
Uncontaminated means that there would be no potential for release of 
substances at a level, or in a form, that would pose a threat to public 
health or the environment.
    B1.25 Transfer, lease, disposition or acquisition of interests in 
uncontaminated land for habitat preservation or wildlife management, and 
only associated buildings that support these purposes. Uncontaminated 
means that there would be no potential for release of substances at a 
level, or in a form, that would pose a threat to public health or the 
environment.
    B1.26 Siting, construction (or expansion, modification, or 
replacement), operation, and decommissioning of small (total capacity 
less than approximately 250,000 gallons per day) wastewater and surface 
water treatment facilities whose liquid discharges are externally 
regulated, and small potable water and sewage treatment facilities.
    B1.27 Activities that are required for the disconnection of utility 
services such as

[[Page 879]]

water, steam, telecommunications, and electrical power after it has been 
determined that the continued operation of these systems is not needed 
for safety.
    B1.28 Minor activities that are required to place a facility in an 
environmentally safe condition where there is no proposed use for the 
facility. These activities would include, but are not limited to, 
reducing surface contamination, and removing materials, equipment or 
waste, such as final defueling of a reactor, where there are adequate 
existing facilities for the treatment, storage, or disposal of the 
materials, equipment or waste. These activities would not include 
conditioning, treatment, or processing of spent nuclear fuel, high-level 
waste, or special nuclear materials.
    B1.29 Siting, construction, operation, and decommissioning of a 
small (less than approximately 10 acres) onsite disposal facility for 
construction and demolition waste which would not release substances at 
a level, or in a form, that would pose a threat to public health or the 
environment. These wastes, as defined in the Environmental Protection 
Agency's regulations under the Resource Conservation and Recovery Act, 
specifically 40 CFR 243.101, include building materials, packaging, and 
rubble.
    B1.30 Transfer actions, in which the predominant activity is 
transportation, and in which the amount and type of materials, equipment 
or waste to be moved is small and incidental to the amount of such 
materials, equipment, or waste that is already a part of ongoing 
operations at the receiving site. Such transfers are not regularly 
scheduled as part of ongoing routine operations.
    B1.31 Relocation of machinery and equipment, such as analytical 
laboratory apparatus, electronic hardware, maintenance equipment, and 
health and safety equipment, including minor construction necessary for 
removal and installation, where uses of the relocated items will be 
similar to their former uses and consistent with the general missions of 
the receiving structure.
    B1.32 Traffic flow adjustments to existing roads at DOE sites 
(including, but not limited to, stop sign or traffic light installation, 
adjusting direction of traffic flow, and adding turning lanes). Road 
adjustments such as widening or realignment are not included.

       B2. Categorical Exclusions Applicable to Safety and Health

    B2.1 Modifications of an existing structure to enhance workplace 
habitability (including, but not limited to: improvements to lighting, 
radiation shielding, or heating/ventilating/air conditioning and its 
instrumentation; and noise reduction).
    B2.2 Installation of, or improvements to, building and equipment 
instrumentation (including, but not limited to, remote control panels, 
remote monitoring capability, alarm and surveillance systems, control 
systems to provide automatic shutdown, fire detection and protection 
systems, announcement and emergency warning systems, criticality and 
radiation monitors and alarms, and safeguards and security equipment).
    B2.3 Installation of, or improvements to, equipment for personnel 
safety and health, including, but not limited to, eye washes, safety 
showers, radiation monitoring devices, and fumehoods and associated 
collection and exhaust systems, provided that emissions would not 
increase.
    B2.4 Development and implementation of Equipment Qualification 
Programs (under DOE Order 5480.6, ``Safety of DOE-owned Nuclear 
Reactors'') to augment information on safety-related system components 
or to improve systems reliability.
    B2.5 Safety and environmental improvements of a facility, including 
replacement and upgrade of facility components, that do not result in a 
significant change in the expected useful life, design capacity, or 
function of the facility and during which operations may be suspended 
and then resumed. Improvements may include, but are not limited to: 
Replacement/upgrade of control valves, in-core monitoring devices, 
facility air filtration systems, or substation transformers or 
capacitors; addition of structural bracing to meet earthquake standards 
and/or sustain high wind loading; and replacement of aboveground or 
belowground tanks and related piping if there is no evidence of leakage, 
based on testing that meets performance requirements in 40 CFR part 280, 
subpart D (40 CFR part 280.40). This includes activities taken under 
RCRA, subtitle I; 40 CFR part 265, subpart J; 40 CFR part 280, subparts 
B, C, and D; and other applicable state, Federal and local requirements 
for underground storage tanks. These actions do not include rebuilding 
or modifying substantial portions of a facility, such as replacing a 
reactor vessel.
    B2.6 Packaging, transportation, and storage of radioactive materials 
from the public domain, in accordance with the Atomic Energy Act upon a 
request by the Nuclear Regulatory Commission or other cognizant agency, 
which would include a State that regulates radioactive materials under 
an agreement with the Nuclear Regulatory Commission or other agencies 
that may, under unusual circumstances, have responsibilities regarding 
the materials that are included in the categorical exclusion. Covered 
materials are those for which possession and use by Nuclear Regulatory 
Commission licensees has been categorically excluded under 10 CFR 
51.22(14) or its successors. Examples of these radioactive materials 
(which may contain source, byproduct or special nuclear materials) are 
density gauges, therapeutic medical devices, generators, reagent kits, 
irradiators, analytical instruments, well

[[Page 880]]

monitoring equipment, uranium shielding material, depleted uranium 
military munitions, and packaged radioactive waste not exceeding 50 
curies.

    B3. Categorical Exclusions Applicable to Site Characterization, 
                    Monitoring, and General Research

    B3.1 Onsite and offsite site characterization and environmental 
monitoring, including siting, construction (or modification), operation, 
and dismantlement or closing (abandonment) of characterization and 
monitoring devices and siting, construction, and associated operation of 
a small-scale laboratory building or renovation of a room in an existing 
building for sample analysis. Activities covered include, but are not 
limited to, site characterization and environmental monitoring under 
CERCLA and RCRA. Specific activities include, but are not limited to:
    (a) Geological, geophysical (such as gravity, magnetic, electrical, 
seismic, and radar), geochemical, and engineering surveys and mapping, 
including the establishment of survey marks;
    (b) Installation and operation of field instruments, such as stream-
gauging stations or flow-measuring devices, telemetry systems, 
geochemical monitoring tools, and geophysical exploration tools;
    (c) Drilling of wells for sampling or monitoring of groundwater or 
the vadose (unsaturated) zone, well logging, and installation of water-
level recording devices in wells;
    (d) Aquifer response testing;
    (e) Installation and operation of ambient air monitoring equipment;
    (f) Sampling and characterization of water, soil, rock, or 
contaminants;
    (g) Sampling and characterization of water effluents, air emissions, 
or solid waste streams;
    (h) Installation and operation of meteorological towers and 
associated activities, including assessment of potential wind energy 
resources;
    (i) Sampling of flora or fauna; and
    (j) Archeological, historic, and cultural resource identification in 
compliance with 36 CFR part 800 and 43 CFR part 7.
    B3.2 Aviation activities for survey, monitoring, or security 
purposes that comply with Federal Aviation Administration regulations.
    B3.3 Field and laboratory research, inventory, and information 
collection activities that are directly related to the conservation of 
fish or wildlife resources and that involve only negligible habitat 
destruction or population reduction.
    B3.4 Drop, puncture, water-immersion, thermal, and fire tests of 
transport packaging for radioactive or hazardous materials to certify 
that designs meet the requirements of 49 CFR Sec. Sec. 173.411 and 
173.412 and requirements of severe accident conditions as specified in 
10 CFR Sec. 71.73.
    B3.5 Tank car tests under 49 CFR part 179 (including, but not 
limited to, tests of safety relief devices, pressure regulators, and 
thermal protection systems).
    B3.6 Siting, construction (or modification), operation, and 
decommissioning of facilities for indoor bench-scale research projects 
and conventional laboratory operations (for example, preparation of 
chemical standards and sample analysis); small-scale research and 
development projects; and small-scale pilot projects (generally less 
than two years) conducted to verify a concept before demonstration 
actions. Construction (or modification) will be within or contiguous to 
an already developed area (where active utilities and currently used 
roads are readily accessible). See also C12.
    B3.7 Siting, construction, and operation of new infill exploratory 
and experimental (test) oil, gas, and geothermal wells, which are to be 
drilled in a geological formation that has existing operating wells.
    B3.8 Outdoor ecological and other environmental research (including 
siting, construction, and operation of a small-scale laboratory building 
or renovation of a room in an existing building for sample analysis) in 
a small area (generally less than five acres) that would not result in 
any permanent change to the ecosystem.
    B3.9 Demonstration actions proposed under the Clean Coal Technology 
Demonstration Program, if the actions would not increase the quantity or 
rate of air emissions. These demonstration actions include, but are not 
limited to:
    (a) Test treatment of 20 percent or less of the throughput product 
(solid, liquid, or gas) generated at an existing and fully operational 
coal combustion or coal utilization facility;
    (b) Addition or replacement of equipment for reduction or control of 
sulfur dioxide, oxides of nitrogen, or other regulated substances that 
requires only minor modification to the existing structures at an 
existing coal combustion or coal utilization facility for which the 
existing use remains unchanged; and
    (c) Addition or replacement of equipment for reduction or control of 
sulfur dioxide, oxides of nitrogen, or other regulated substances that 
involves no permanent change in the quantity or quality of coal being 
burned or used and involves no permanent change in the capacity factor 
of the coal combustion or coal utilization facility, other than for 
demonstration purposes of two years or less in duration.
    B3.10 Siting, construction, operation, and decommissioning of a 
particle accelerator, including electron beam accelerator with primary 
beam energy less than approximately 100 MeV, and associated beamlines,

[[Page 881]]

storage rings, colliders, and detectors for research and medical 
purposes, within or contiguous to an already developed area (where 
active utilities and currently used roads are readily accessible), or 
internal modification of any accelerator facility regardless of energy 
that does not increase primary beam energy or current.
    B3.11 Outdoor tests and experiments for the development, quality 
assurance, or reliability of materials and equipment (including, but not 
limited to, weapon system components), under controlled conditions that 
would not involve source, special nuclear, or byproduct materials. 
Covered activities may include, but are not limited to, burn tests (such 
as tests of electric cable fire resistance or the combustion 
characteristics of fuels), impact tests (such as pneumatic ejector tests 
using earthen embankments or concrete slabs designated and routinely 
used for that purpose), or drop, puncture, water-immersion, or thermal 
tests.
    B3.12 Siting, construction (or modification), operation, and 
decommissioning of microbiological and biomedical diagnostic, treatment 
and research facilities (excluding Biosafety Level-3 and Biosafety 
Level-4; reference: Biosafety in Microbiological and Biomedical 
Laboratories, 3rd Edition, May 1993, U.S. Department of Health and Human 
Services Public Health Service, Centers of Disease Control and 
Prevention, and the National Institutes of Health (HHS Publication No. 
(CDC) 93-8395)) including, but not limited to, laboratories, treatment 
areas, offices, and storage areas, within or contiguous to an already 
developed area (where active utilities and currently used roads are 
readily accessible). Operation may include the purchase, installation, 
and operation of biomedical equipment, such as commercially available 
cyclotrons that are used to generate radioisotopes and 
radiopharmaceuticals, and commercially available biomedical imaging and 
spectroscopy instrumentation.
    B3.13 Performing magnetic fusion experiments that do not use tritium 
as fuel, with existing facilities (including necessary modifications).

B4. Categorical Exclusions Applicable to Power Marketing Administrations 
            and to All of DOE with Regard to Power Resources

    B4.1 Establishment and implementation of contracts, marketing plans, 
policies, allocation plans, or acquisition of excess electric power that 
does not involve: (1) the integration of a new generation resource, (2) 
physical changes in the transmission system beyond the previously 
developed facility area, unless the changes are themselves categorically 
excluded, or (3) changes in the normal operating limits of generation 
resources.
    B4.2 Export of electric energy as provided by Section 202(e) of the 
Federal Power Act over existing transmission systems or using 
transmission system changes that are themselves categorically excluded.
    B4.3 Rate changes for electric power, power transmission, and other 
products or services provided by a Power Marketing Administration that 
are based on a change in revenue requirements if the operations of 
generation projects would remain within normal operating limits.
    B4.4 Power marketing services, including storage, load shaping, 
seasonal exchanges, or other similar activities if the operations of 
generating projects would remain within normal operating limits.
    B4.5 Temporary adjustments to river operations to accommodate day-
to-day river fluctuations, power demand changes, fish and wildlife 
conservation program requirements, and other external events if the 
adjustments would occur within the existing operating constraints of the 
particular hydrosystem operation.
    B4.6 Additions or modifications to electric power transmission 
facilities that would not affect the environment beyond the previously 
developed facility area including, but not limited to, switchyard rock 
grounding upgrades, secondary containment projects, paving projects, 
seismic upgrading, tower modifications, changing insulators, and 
replacement of poles, circuit breakers, conductors, transformers, and 
crossarms.
    B4.7 Adding fiber optic cable to transmission structures or burying 
fiber optic cable in existing transmission line rights-of-way.
    B4.8 New electricity transmission agreements, and modifications to 
existing transmission arrangements, to use a transmission facility of 
one system to transfer power of and for another system, if no new 
generation projects would be involved and no physical changes in the 
transmission system would be made beyond the previously developed 
facility area.
    B4.9 Grant or denial of requests for multiple use of a transmission 
facility rights-of-way, such as grazing permits and crossing agreements, 
including electric lines, water lines, and drainage culverts.
    B4.10 Deactivation, dismantling, and removal of electric powerlines, 
substations, switching stations, and other transmission facilities, and 
right-of-way abandonment.
    B4.11 Construction of electric power substations (including 
switching stations and support facilities) with power delivery at 230 kV 
or below, or modification (other than voltage increases) of existing 
substations and support facilities, that could involve the construction 
of electric powerlines approximately 10 miles in length or less, or 
relocation of existing electric powerlines approximately 20 miles in 
length or less, but not the integration of major new generation 
resources into a main transmission system.

[[Page 882]]

    B4.12 Construction of electric powerlines approximately 10 miles in 
length or less that are not for the integration of major new generation 
resources into a main transmission system.
    B4.13 Reconstruction (upgrading or rebuilding) and/or minor 
relocation of existing electric powerlines approximately 20 miles in 
length or less to enhance environmental and land use values. Such 
actions include relocations to avoid right-of-way encroachments, resolve 
conflict with property development, accommodate road/highway 
construction, allow for the construction of facilities such as canals 
and pipelines, or reduce existing impacts to environmentally sensitive 
areas.

   B5. Categorical Exclusions Applicable to Conservation, Fossil, and 
                       Renewable Energy Activities

    B5.1 Actions to conserve energy, demonstrate potential energy 
conservation, and promote energy-efficiency that do not increase the 
indoor concentrations of potentially harmful substances. These actions 
may involve financial and technical assistance to individuals (such as 
builders, owners, consultants, designers), organizations (such as 
utilities), and state and local governments. Covered actions include, 
but are not limited to: programmed lowering of thermostat settings, 
placement of timers on hot water heaters, installation of solar hot 
water systems, installation of efficient lighting, improvements in 
generator efficiency and appliance efficiency ratings, development of 
energy-efficient manufacturing or industrial practices, and small-scale 
conservation and renewable energy research and development and pilot 
projects. The actions could involve building renovations or new 
structures in commercial, residential, agricultural, or industrial 
sectors. These actions do not include rulemakings, standard-settings, or 
proposed DOE legislation.
    B5.2 Modifications to oil, gas, and geothermal facility pump and 
piping configurations, manifolds, metering systems, and other 
instrumentation that would not change design process flow rates or 
affect permitted air emissions.
    B5.3 Modification (but not expansion) or abandonment (including 
plugging), which is not part of site closure, of crude oil storage 
access wells, brine injection wells, geothermal wells, and gas wells.
    B5.4 Repair or replacement of sections of a crude oil, produced 
water, brine, or geothermal pipeline, if the actions are determined by 
the Army Corps of Engineers to be within the maintenance provisions of a 
DOE permit under section 404 of the Clean Water Act.
    B5.5 Construction and subsequent operation of short crude oil, 
steam, geothermal, or natural gas pipeline segments between DOE 
facilities and existing transportation, storage, or refining facilities 
within a single industrial complex, if the pipeline segments are within 
existing rights-of-way.
    B5.6 Removal of oil and contaminated materials recovered in oil 
spill cleanup operations in accordance with the National Oil and 
Hazardous Substances Pollution Contingency Plan (NCP) and disposed of in 
accordance with local contingency plans in accordance with the NCP.
    B5.7 Approval of new authorization or amendment of existing 
authorization to import/export natural gas under section 3 of the 
Natural Gas Act that does not involve new construction and only requires 
operational changes, such as an increase in natural gas throughput, 
change in transportation, or change in storage operations.
    B5.8 Approval of new authorization or amendment of existing 
authorization to import/export natural gas under section 3 of the 
Natural Gas Act involving a new cogeneration powerplant (as defined in 
the Powerplant and Industrial Fuel Use Act) within or adjacent to an 
existing industrial complex and requiring less than 10 miles of new gas 
pipeline.
    B5.9 The grant or denial of any temporary exemption under the 
Powerplant and Industrial Fuel Use Act of 1978 for any electric 
powerplant.
    B5.10 The grant or denial of any permanent exemption under the 
Powerplant and Industrial Fuel Use Act of 1978 of any existing electric 
powerplant other than an exemption under (1) section 312(c) relating to 
cogeneration, (2) section 312(l) relating to scheduled equipment 
outages, (3) section 312(b) relating to certain state or local 
requirements, and (4) section 312(g) relating to certain intermediate 
load powerplants.
    B5.11 The grant or denial of a permanent exemption from the 
prohibitions of Title II of the Powerplant and Industrial Fuel Use Act 
of 1978 for any new electric powerplant to permit the use of certain 
fuel mixtures containing natural gas or petroleum.
    B5.12 Workover (operations to restore production, such as deepening, 
plugging back, pulling and resetting lines, and squeeze cementing) of an 
existing oil, gas, or geothermal well to restore production when 
workover operations will be restricted to the existing wellpad and not 
involve any new site preparation or earth work that would adversely 
affect adjacent habitat.

 B6. Categorical Exclusions Applicable to Environmental Restoration and 
                       Waste Management Activities

    B6.1 Small-scale, short-term cleanup actions, under RCRA, Atomic 
Energy Act, or other authorities, less than approximately 5 million 
dollars in cost and 5 years duration, to reduce risk to human health or 
the environment from the release or threat of release of a hazardous 
substance other than high-

[[Page 883]]

level radioactive waste and spent nuclear fuel, including treatment 
(e.g., incineration), recovery, storage, or disposal of wastes at 
existing facilities currently handling the type of waste involved in the 
action. These actions include, but are not limited to:
    (a) Excavation or consolidation of contaminated soils or materials 
from drainage channels, retention basins, ponds, and spill areas that 
are not receiving contaminated surface water or wastewater, if surface 
water or groundwater would not collect and if such actions would reduce 
the spread of, or direct contact with, the contamination;
    (b) Removal of bulk containers (for example, drums, barrels) that 
contain or may contain hazardous substances, pollutants, contaminants, 
CERCLA-excluded petroleum or natural gas products, or hazardous wastes 
(designated in 40 CFR part 261 or applicable state requirements), if 
such actions would reduce the likelihood of spillage, leakage, fire, 
explosion, or exposure to humans, animals, or the food chain;
    (c) Removal of an underground storage tank including its associated 
piping and underlying containment systems in compliance with RCRA, 
subtitle I; 40 CFR part 265, subpart J; and 40 CFR part 280, subparts F 
and G if such action would reduce the likelihood of spillage, leakage, 
or the spread of, or direct contact with, contamination;
    (d) Repair or replacement of leaking containers;
    (e) Capping or other containment of contaminated soils or sludges if 
the capping or containment would not affect future groundwater 
remediation and if needed to reduce migration of hazardous substances, 
pollutants, contaminants, or CERCLA-excluded petroleum and natural gas 
products into soil, groundwater, surface water, or air;
    (f) Drainage or closing of man-made surface impoundments if needed 
to maintain the integrity of the structures;
    (g) Confinement or perimeter protection using dikes, trenches, 
ditches, diversions, or installing underground barriers, if needed to 
reduce the spread of, or direct contact with, the contamination;
    (h) Stabilization, but not expansion, of berms, dikes, impoundments, 
or caps if needed to maintain integrity of the structures;
    (i) Drainage controls (for example, run-off or run-on diversion) if 
needed to reduce offsite migration of hazardous substances, pollutants, 
contaminants, or CERCLA-excluded petroleum or natural gas products or to 
prevent precipitation or run-off from other sources from entering the 
release area from other areas;
    (j) Segregation of wastes that may react with one another or form a 
mixture that could result in adverse environmental impacts;
    (k) Use of chemicals and other materials to neutralize the pH of 
wastes;
    (l) Use of chemicals and other materials to retard the spread of the 
release or to mitigate its effects if the use of such chemicals would 
reduce the spread of, or direct contact with, the contamination;
    (m) Installation and operation of gas ventilation systems in soil to 
remove methane or petroleum vapors without any toxic or radioactive co-
contaminants if appropriate filtration or gas treatment is in place;
    (n) Installation of fences, warning signs, or other security or site 
control precautions if humans or animals have access to the release; and
    (o) Provision of an alternative water supply that would not create 
new water sources if necessary immediately to reduce exposure to 
contaminated household or industrial use water and continuing until such 
time as local authorities can satisfy the need for a permanent remedy.
    B6.2 The siting, construction, and operation of temporary (generally 
less than 2 years) pilot-scale waste collection and treatment 
facilities, and pilot-scale (generally less than one acre) waste 
stabilization and containment facilities (including siting, 
construction, and operation of a small-scale laboratory building or 
renovation of a room in an existing building for sample analysis) if the 
action: (1) Supports remedial investigations/feasibility studies under 
CERCLA, or similar studies under RCRA, such as RCRA facility 
investigations/corrective measure studies, or other authorities, and (2) 
would not unduly limit the choice of reasonable remedial alternatives 
(by permanently altering substantial site area or by committing large 
amounts of funds relative to the scope of the remedial alternatives).
    B6.3 Improvements to environmental monitoring and control systems of 
an existing building or structure (for example, changes to scrubbers in 
air quality control systems or ion-exchange devices and other filtration 
processes in water treatment systems) if during subsequent operations 
(1) any substance collected by the environmental control systems would 
be recycled, released, or disposed of within existing permitted 
facilities and (2) there are applicable statutory or regulatory 
requirements or permit conditions for disposal, release, or recycling of 
any hazardous substance or CERCLA-excluded petroleum natural gas 
products that are collected or released in increased quantity or that 
were not previously collected or released.
    B6.4 Siting, construction (or modification or expansion), operation, 
and decommissioning of an onsite facility for storing packaged hazardous 
waste (as designated in 40 CFR part 261) for 90 days or less or for 
longer periods as provided in 40 CFR 262.34 (d), (e), or (f) (e.g., 
accumulation or satellite areas).

[[Page 884]]

    B6.5 Siting, construction (or modification or expansion), operation, 
and decommissioning of an onsite facility for characterizing and sorting 
previously packaged waste or for overpacking waste, other than high-
level radioactive waste, if operations do not involve unpacking waste. 
These actions do not include waste storage (covered under B6.4, B6.6, 
B6.10, and C16) or the handling of spent nuclear fuel.
    B6.6 Modification (excluding increases in capacity) of an existing 
structure used for storing, packaging, or repacking waste other than 
high-level radioactive waste or spent nuclear fuel, to handle the same 
class of waste as currently handled at that structure.
    B6.7 Under the Low-Level Radioactive Waste Policy Amendments Act of 
1985 (5(c)(5)), granting of a petition qualified under 10 CFR 730.6 for 
allocation of commercial disposal capacity for an unusual or unexpected 
volume of commercial low-level radioactive waste or denying such a 
petition when adequate storage capacity exists at the petitioner's 
facility.
    B6.8 Minor operational changes at an existing facility to minimize 
waste generation and for reuse of materials. These changes include, but 
are not limited to, adding filtration and recycle piping to allow reuse 
of machining oil, setting up a sorting area to improve process 
efficiency, and segregating two waste streams previously mingled and 
assigning new identification codes to the two resulting wastes.
    B6.9 Small-scale temporary measures to reduce migration of 
contaminated groundwater, including the siting, construction, operation, 
and decommissioning of necessary facilities. These measures include, but 
are not limited to, pumping, treating, storing, and reinjecting water, 
by mobile units or facilities that are built and then removed at the end 
of the action.
    B6.10 Siting, construction (or modification), operation, and 
decommissioning of a small upgraded or replacement facility (less than 
approximately 50,000 square feet in area) at a DOE site within or 
contiguous to an already developed area (where active utilities and 
currently used roads are readily accessible) for storage of waste that 
is already at the site at the time the storage capacity is to be 
provided. These actions do not include the storage of high-level 
radioactive waste, spent nuclear fuel or any waste that requires special 
precautions to prevent nuclear criticality. See also B6.4, B6.5, B6.6, 
and C16.

    B7. Categorical Exclusions Applicable to International Activities

    B7.1 Planning and implementation of emergency measures pursuant to 
the International Energy Program.
    B7.2 Approval of import or export of small quantities of special 
nuclear materials or isotopic materials in accordance with the Nuclear 
Non-Proliferation Act of 1978 and the ``Procedures Established Pursuant 
to the Nuclear Non Proliferation Act of 1978'' (43 FR 25326, June 9, 
1978).

[57 FR 15144, Apr. 24, 1992, as amended at 61 FR 36239-36242, July 9, 
1996; 61 FR 64608, Dec. 6, 1996]



   Sec. Appendix C to Subpart D of Part 1021--Classes of Actions that 
              Normally Require EAs But Not Necessarily EISs

                            Table of Contents

C1. [Reserved]
C2. Rate increases more than inflation, not power marketing
C3. Electric power marketing rate changes, not within normal operating 
          limits.
C4. Reconstructing and constructing electric powerlines.
C5. Implementation of Power Marketing Administration systemwide 
          vegetation management program
C6. Implementation of Power Marketing Administration systemwide erosion 
          control program
C7. Allocation of electric power, no major new generation resource/major 
          changes in operation of generation resources/major new loads.
C8. Protection of fish and wildlife habitat
C9. Field demonstration projects for wetlands
C10. [Reserved]
C11. Siting/construction/operation/decommissioning of low- or medium-
          energy particle acceleration facility with primary beam energy 
          greater than approximately 100 MeV
C12. Siting/construction/operation of energy system prototypes
C13. Import/export natural gas, minor new construction (other than a 
          cogeneration powerplant)
C14. Siting/construction/operation of water treatment facilities greater 
          than approximately 250,000 gallons per day capacity
C15. Siting/construction/operation of research and development 
          incinerators/nonhazardous waste incinerators
C16. Siting/construction/operation/decommissioning of large waste 
          storage facilities

    C1 [Reserved]
    C2 Rate increases for products or services marketed by DOE, except 
for electric power, power transmission, and other products or services 
provided by the Power Marketing Administrations, and approval of rate 
increases for non-DOE entities, that exceed the change in the overall 
price level in the economy (inflation), as measured by the GNP

[[Page 885]]

fixed weight price index published by the Department of Commerce, during 
the period since the last rate increase for that product or service.
    C3 Rate changes for electric power, power transmission, and other 
products or services provided by Power Marketing Administrations that 
are based on changes in revenue requirements if the operations of 
generation projects would not remain within normal operating limits.
    C4 Reconstructing (upgrading or rebuilding) existing electric 
powerlines more than approximately 20 miles in length or constructing 
new electric powerlines more than approximately 10 miles in length.
    C5 Implementation of a Power Marketing Administration system-wide 
vegetation management program.
    C6 Implementation of a Power Marketing Administration system-wide 
erosion control program.
    C7 Establishment and implementation of contracts, policies, 
marketing plans, or allocation plans for the allocation of electric 
power that do not involve (1) the addition of new generation resources 
greater than 50 average megawatts, (2) major changes in the operating 
limits of generation resources greater than 50 average megawatts, or (3) 
service to discrete new loads of 10 average megawatts or more over a 12 
month period. This applies to power marketing operations and to siting, 
construction, and operation of power generating facilities at DOE sites.
    C8 Protection, restoration, or improvement of fish and wildlife 
habitat, fish passage facilities, and fish hatcheries if the proposed 
action may adversely affect an environmentally sensitive resource.
    C9 Field demonstration projects for wetlands mitigation, creation, 
and restoration.
    C10 [Reserved]
    C11 Siting, construction (or modification), operation, and 
decommissioning of a low- or medium-energy (but greater than 
approximately 100 MeV primary beam energy) particle acceleration 
facility, including electron beam acceleration facilities, and 
associated beamlines, storage rings, colliders, and detectors for 
research and medical purposes, within or contiguous to an already 
developed area (where active utilities and currently used roads are 
readily accessible).
    C12 Siting, construction, and operation of energy system prototypes 
including, but not limited to, wind resource, hydropower, geothermal, 
fossil fuel, biomass, and solar energy pilot projects.
    C13 Approval or disapproval of an application to import/export 
natural gas under section 3 of the Natural Gas Act involving minor new 
construction (other than a cogeneration powerplant), such as adding new 
connections, looping, or compression to an existing natural gas pipeline 
or converting an existing oil pipeline to a natural gas pipeline using 
the same right-of-way.
    C14 Siting, construction (or expansion), operation, and 
decommissioning of wastewater, surface water, potable water, and sewage 
treatment facilities with a total capacity greater than approximately 
250,000 gallons per day, and of lower capacity wastewater and surface 
water treatment facilities whose liquid discharges are not subject to 
external regulation.
    C15 Siting, construction (or expansion), and operation of research 
and development incinerators for any type of waste and of any other 
incinerators that would treat nonhazardous solid waste (as designated in 
40 CFR Part 261.4(b)).
    C16 Siting, construction (or modification to increase capacity), 
operation, and decommissioning of packaging and unpacking facilities 
(that may include characterization operations) and large storage 
facilities (greater than approximately 50,000 square feet in area) for 
waste, except high-level radioactive waste, generated onsite or 
resulting from activities connected to site operations. These actions do 
not include storage, packaging, or unpacking of spent nuclear fuel. See 
also B6.4, B6.5, B6.6, and B6.10.

[57 FR 15144, Apr. 24, 1992, as amended at 61 FR 36242, July 9, 1996; 61 
FR 64608, Dec. 6, 1996]



   Sec. Appendix D to Subpart D of Part 1021--Classes of Actions That 
                          Normally Require EISs

                            Table of Contents

D1. Strategic Systems
D2. Siting/construction/operation/decommissioning of nuclear fuel 
          reprocessing facilities
D3. Siting/construction/operation/decommissioning of uranium enrichment 
          facilities
D4. Siting/construction/operation/decommissioning of reactors
D5. Main transmission system additions
D6. Integrating transmission facilities
D7. Allocation of electric power, major new generation resources/major 
          changes in operation of generation resources/major loads.
D8. Import/export of natural gas, involving major new facilities
D9. Import/export of natural gas, involving significant operational 
          change
D10. Siting/construction/operation/decommissioning of major treatment, 
          storage, and disposal facilities for high-level waste and 
          spent nuclear fuel
D11. Siting/construction/expansion of waste disposal facility for 
          transuranic waste
D12. Siting/construction/operation of incinerators (other than research 
          and development, other than nonhazardous solid waste)


[[Page 886]]


    D1 Strategic Systems, as defined in DOE Order 430.1, ``Life-Cycle 
Asset Management,'' and designated by the Secretary.
    D2 Siting, construction, operation, and decommissioning of nuclear 
fuel reprocessing facilities.
    D3 Siting, construction, operation, and decommissioning of uranium 
enrichment facilities.
    D4 Siting, construction, operation, and decommissioning of power 
reactors, nuclear material production reactors, and test and research 
reactors.
    D5 Main transmission system additions (that is, additions of new 
transmission lines) to a Power Marketing Administration's main 
transmission grid.
    D6 Integrating transmission facilities (that is, transmission system 
additions for integrating major new sources of generation into a Power 
Marketing Administration's main grid).
    D7 Establishment and implementation of contracts, policies, 
marketing plans or allocation plans for the allocation of electric power 
that involve (1) the addition of new generation resources greater than 
50 average megawatts, (2) major changes in the operating limits of 
generation resources greater than 50 average megawatts, or (3) service 
to discrete new loads of 10 average megawatts or more over a 12 month 
period. This applies to power marketing operations and to siting 
construction, and operation of power generating facilities at DOE sites.
    D8 Approval or disapproval of an application to import/export 
natural gas under section 3 of the Natural Gas Act involving major new 
natural gas pipeline construction or related facilities, such as 
construction of new liquid natural gas (LNG) terminals, regasification 
or storage facilities, or a significant expansion of an existing 
pipeline or related facility or LNG terminal, regasification, or storage 
facility.
    D9 Approval or disapproval of an application to import/export 
natural gas under section 3 of the Natural Gas Act involving a 
significant operational change, such as a major increase in the quantity 
of liquid natural gas imported or exported.
    D10 Siting, construction, operation, and decommissioning of major 
treatment, storage, and disposal facilities for high-level waste and 
spent nuclear fuel, including geologic repositories, but not including 
onsite replacement or upgrades of storage facilities for spent nuclear 
fuel at DOE sites where such replacement or upgrade will not result in 
increased storage capacity.
    D11 Siting, construction (or expansion), and operation of a disposal 
facility for transuranic (TRU) waste and TRU mixed waste (TRU waste also 
containing hazardous waste as designated in 40 CFR part 261).
    D12 Siting, construction, and operation of incinerators, other than 
research and development incinerators or incinerators for nonhazardous 
solid waste (as designated in 40 CFR part 261.4(b)).

[57 FR 15144, Apr. 24, 1992, as amended at 61 FR 36243, July 9, 1996; 61 
FR 64608, Dec. 6, 1996]



PART 1022_COMPLIANCE WITH FLOODPLAIN AND WETLAND ENVIRONMENTAL REVIEW REQUIREMENTS--Table of Contents



                            Subpart A_General

Sec.
1022.1 Background.
1022.2 Purpose and scope.
1022.3 Policy.
1022.4 Definitions.
1022.5 Applicability.
1022.6 Public inquiries.

         Subpart B_Procedures for Floodplain and Wetland Reviews

1022.11 Floodplain or wetland determination.
1022.12 Notice of proposed action.
1022.13 Floodplain or wetland assessment.
1022.14 Findings.
1022.15 Timing.
1022.16 Variances.
1022.17 Follow-up.

                      Subpart C_Other Requirements

1022.21 Property management.
1022.22 Requests for authorizations or appropriations.
1022.23 Applicant responsibilities.
1022.24 Interagency cooperation.

    Authority: 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.; E.O. 
11988, 42 FR 26951, 3 CFR, 1977 Comp., p. 117; E.O. 11990, 42 FR 26961, 
3 CFR, 1977 Comp., p. 121; E.O. 12372, 47 FR 30959, 3 CFR, 1982 Comp., 
p. 197.

    Source: 68 FR 51432, Aug. 27, 2003, unless otherwise noted.



                            Subpart A_General



Sec. 1022.1  Background.

    (a) Executive Order (E.O.) 11988--Floodplain Management (May 24, 
1977) directs each Federal agency to issue or amend existing regulations 
and procedures to ensure that the potential effects of any action it may 
take in a floodplain are evaluated and that its planning programs and 
budget requests reflect consideration of flood hazards and floodplain 
management. Guidance

[[Page 887]]

for implementation of the E.O. is provided in the floodplain management 
guidelines of the U.S. Water Resources Council (40 FR 6030; February 10, 
1978) and in ``A Unified National Program for Floodplain Management'' 
prepared by the Federal Interagency Floodplain Management Taskforce 
(Federal Emergency Management Agency, FEMA 248, June 1994). E.O. 11990--
Protection of Wetlands (May 24, 1977) directs all Federal agencies to 
issue or amend existing procedures to ensure consideration of wetlands 
protection in decisionmaking and to ensure the evaluation of the 
potential impacts of any new construction proposed in a wetland.
    (b) It is the intent of the E.O.s that Federal agencies implement 
both the floodplain and the wetland provisions through existing 
procedures such as those established to implement the National 
Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.). In 
those instances where the impacts of the proposed action are not 
significant enough to require the preparation of an EIS under section 
102(2)(C) of NEPA, alternative floodplain or wetland evaluation 
procedures are to be established. As stated in the E.O.s, Federal 
agencies are to avoid direct or indirect support of development in a 
floodplain or new construction in a wetland wherever there is a 
practicable alternative.



Sec. 1022.2  Purpose and scope.

    (a) This part establishes policy and procedures for discharging the 
Department of Energy's (DOE's) responsibilities under E.O. 11988 and 
E.O. 11990, including:
    (1) DOE policy regarding the consideration of floodplain and wetland 
factors in DOE planning and decisionmaking; and
    (2) DOE procedures for identifying proposed actions located in a 
floodplain or wetland, providing opportunity for early public review of 
such proposed actions, preparing floodplain or wetland assessments, and 
issuing statements of findings for actions in a floodplain.
    (b) To the extent possible, DOE shall accommodate the requirements 
of E.O. 11988 and E.O. 11990 through applicable DOE NEPA procedures or, 
when appropriate, the environmental review process under the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA) (42 U.S.C. 9601 et seq.).



Sec. 1022.3  Policy.

    DOE shall exercise leadership and take action to:
    (a) Incorporate floodplain management goals and wetland protection 
considerations into its planning, regulatory, and decisionmaking 
processes, and shall to the extent practicable:
    (1) Reduce the risk of flood loss;
    (2) Minimize the impact of floods on human safety, health, and 
welfare;
    (3) Restore and preserve natural and beneficial values served by 
floodplains;
    (4) Require the construction of DOE structures and facilities to be, 
at a minimum, in accordance with FEMA National Flood Insurance Program 
building standards;
    (5) Promote public awareness of flood hazards by providing 
conspicuous delineations of past and probable flood heights on DOE 
property that has suffered flood damage or is in an identified 
floodplain and that is used by the general public;
    (6) Inform parties during transactions guaranteed, approved, 
regulated, or insured by DOE of the hazards associated with locating 
facilities and structures in a floodplain;
    (7) Minimize the destruction, loss, or degradation of wetlands; and
    (8) Preserve and enhance the natural and beneficial values of 
wetlands.
    (b) Undertake a careful evaluation of the potential effects of any 
proposed floodplain or wetland action.
    (c) Avoid to the extent possible the long- and short-term adverse 
impacts associated with the destruction of wetlands and the occupancy 
and modification of floodplains and wetlands, and avoid direct and 
indirect support of development in a floodplain or new construction in a 
wetland wherever there is a practicable alternative.
    (d) Identify, evaluate, and as appropriate, implement alternative 
actions that may avoid or mitigate adverse floodplain or wetland 
impacts.
    (e) Provide opportunity for early public review of any plans or 
proposals for floodplain or wetland actions.

[[Page 888]]



Sec. 1022.4  Definitions.

    The following definitions apply to this part:
    Action means any DOE activity necessary to carry out its 
responsibilities for:
    (1) Acquiring, managing, and disposing of Federal lands and 
facilities;
    (2) Providing DOE-undertaken, -financed, or -assisted construction 
and improvements; and
    (3) Conducting activities and programs affecting land use, including 
but not limited to water- and related land-resources planning, 
regulating, and licensing activities.
    Base floodplain means the 100-year floodplain, that is, a floodplain 
with a 1.0 percent chance of flooding in any given year.
    Critical action means any DOE action for which even a slight chance 
of flooding would be too great. Such actions may include, but are not 
limited to, the storage of highly volatile, toxic, or water reactive 
materials.
    Critical action floodplain means, at a minimum, the 500-year 
floodplain, that is, a floodplain with a 0.2 percent chance of flooding 
in any given year. When another requirement directing evaluation of a 
less frequent flood event also is applicable to the proposed action, a 
flood less frequent than the 500-year flood may be appropriate for 
determining the floodplain for purposes of this part.
    Effects of national concern means those effects that because of the 
high quality or function of the affected resource or because of the wide 
geographic range of effects could create concern beyond the locale or 
region of the proposed action.
    Environmental assessment (EA) means a document prepared in 
accordance with the requirements of 40 CFR 1501.4(b), 40 CFR 1508.9, 10 
CFR 1021.320, and 10 CFR 1021.321.
    Environmental impact statement (EIS) means a document prepared in 
accordance with the requirements of section 102(2)(C) of NEPA and its 
implementing regulations at 40 CFR Parts 1500-1508 and 10 CFR Part 1021.
    Facility means any human-made or -placed item other than a 
structure.
    FEMA means the Federal Emergency Management Agency, Department of 
Homeland Security.
    Finding of no significant impact means a document prepared in 
accordance with the requirements of 40 CFR 1508.13 and 10 CFR 1021.322.
    Flood or flooding means a temporary condition of partial or complete 
inundation of normally dry land areas from the overflow of inland or 
tidal waters, or the unusual and rapid accumulation or runoff of surface 
waters from any source.
    Floodplain means the lowlands adjoining inland and coastal waters 
and relatively flat areas and floodprone areas of offshore islands.
    Floodplain action means any DOE action that takes place in a 
floodplain, including any DOE action in a wetland that is also within 
the floodplain, subject to the exclusions specified at Sec. 1022.5(c) 
and (d) of this part.
    Floodplain and wetland values means the qualities of or functions 
served by floodplains and wetlands that can include, but are not limited 
to, living values (e.g., conservation of existing flora and fauna 
including their long-term productivity, preservation of diversity and 
stability of species and habitats), cultural resource values (e.g., 
archeological and historic sites), cultivated resource values (e.g., 
agriculture, aquaculture, forestry), aesthetic values (e.g., natural 
beauty), and other values related to uses in the public interest (e.g., 
open space, scientific study, outdoor education, recreation).
    Floodplain or wetland assessment means an evaluation consisting of a 
description of a proposed action, a discussion of its potential effects 
on the floodplain or wetland, and consideration of alternatives.
    Floodplain statement of findings means a brief document issued 
pursuant to Sec. 1022.14 of this part that describes the results of a 
floodplain assessment.
    High-hazard areas means those portions of riverine and coastal 
floodplains nearest the source of flooding that are frequently flooded 
and where the likelihood of flood losses and adverse impacts on the 
natural and beneficial values served by floodplains is greatest.

[[Page 889]]

    Minimize means to reduce to the smallest degree practicable.
    New construction, for the purpose of compliance with E.O. 11990 and 
this part, means the building of any structures or facilities, draining, 
dredging, channelizing, filling, diking, impounding, and related 
activities.
    Notice of proposed floodplain action and notice of proposed wetland 
action mean a brief notice that describes a proposed floodplain or 
wetland action, respectively, and its location and that affords the 
opportunity for public review.
    Practicable means capable of being accomplished within existing 
constraints, depending on the situation and including consideration of 
many factors, such as the existing environment, cost, technology, and 
implementation time.
    Preserve means to prevent modification to the natural floodplain or 
wetland environment or to maintain it as closely as possible to its 
natural state.
    Restore means to reestablish a setting or environment in which the 
natural functions of the floodplain or wetland can again operate.
    Structure means a walled or roofed building, including mobile homes 
and gas or liquid storage tanks.
    Wetland means an area that is inundated or saturated by surface or 
groundwater at a frequency and duration sufficient to support, and that 
under normal circumstances does support, a prevalence of vegetation 
typically adapted for life in saturated soil conditions, including 
swamps, marshes, bogs, and similar areas.
    Wetland action means any DOE action related to new construction that 
takes place in a wetland not located in a floodplain, subject to the 
exclusions specified at Sec. 1022.5(c) and (d) of this part.



Sec. 1022.5  Applicability.

    (a) This part applies to all organizational units of DOE, including 
the National Nuclear Security Administration, except that it shall not 
apply to the Federal Energy Regulatory Commission.
    (b) This part applies to all proposed floodplain or wetland actions, 
including those sponsored jointly with other agencies.
    (c) This part does not apply to the issuance by DOE of permits, 
licenses, or allocations to private parties for activities involving a 
wetland that are located on non-Federal property.
    (d) Subject to paragraph (e) of this section, subpart B of this part 
does not apply to:
    (1) Routine maintenance of existing facilities and structures on DOE 
property in a floodplain or wetland. Maintenance is routine when it is 
needed to maintain and preserve the facility or structure for its 
designated purpose (e.g., activities such as reroofing, plumbing repair, 
door and window replacement);
    (2) Site characterization, environmental monitoring, or 
environmental research activities (e.g., sampling and surveying water 
and air quality, flora and fauna abundance, and soil properties) in a 
floodplain or wetland, unless these activities would involve building 
any structure; involve draining, dredging, channelizing, filling, 
diking, impounding, or related activities; or result in long-term change 
to the ecosystem; and
    (3) Minor modification (e.g., upgrading lighting, heating, 
ventilation, and air conditioning systems; installing or improving alarm 
and surveillance systems; and adding environmental monitoring or control 
systems) of an existing facility or structure in a floodplain or wetland 
to improve safety or environmental conditions unless the modification 
would result in a significant change in the expected useful life of the 
facility or structure, or involve building any structure or involve 
draining, dredging, channelizing, filling, diking, impounding, or 
related activities.
    (e) Although the actions listed in paragraphs (d)(1), (d)(2), and 
(d)(3) of this section normally have very small or no adverse impact on 
a floodplain or wetland, where unusual circumstances indicate the 
possibility of adverse impact on a floodplain or wetland, DOE shall 
determine the need for a floodplain or wetland assessment.

[[Page 890]]



Sec. 1022.6  Public inquiries.

    Inquiries regarding DOE's floodplain and wetland environmental 
review requirements may be directed to the Office of NEPA Policy and 
Compliance, U.S. Department of Energy, 1000 Independence Avenue, SW., 
Washington, DC 20585-0119, 202-586-4600, or a message may be left at 1-
800-472-2756, toll free.



         Subpart B_Procedures for Floodplain and Wetland Reviews



Sec. 1022.11  Floodplain or wetland determination.

    (a) Concurrent with its review of a proposed action to determine 
appropriate NEPA or CERCLA process requirements, DOE shall determine the 
applicability of the floodplain management and wetland protection 
requirements of this part.
    (b) DOE shall determine whether a proposed action would be located 
within a base or critical action floodplain consistent with the most 
authoritative information available relative to site conditions from the 
following sources, as appropriate:
    (1) Flood Insurance Rate Maps or Flood Hazard Boundary Maps prepared 
by FEMA;
    (2) Information from a land-administering agency (e.g., Bureau of 
Land Management) or from other government agencies with floodplain-
determination expertise (e.g., U.S. Army Corps of Engineers, Natural 
Resources Conservation Service);
    (3) Information contained in safety basis documents as defined at 10 
CFR part 830; and
    (4) DOE environmental documents, e.g., NEPA and CERCLA documents.
    (c) DOE shall determine whether a proposed action would be located 
within a wetland consistent with the most authoritative information 
available relative to site conditions from the following sources, as 
appropriate:
    (1) U.S. Army Corps of Engineers ``Wetlands Delineation Manual,'' 
Wetlands Research Program Technical Report Y-87-1, January 1987, or 
successor document;
    (2) U.S. Fish and Wildlife Service National Wetlands Inventory or 
other government-sponsored wetland or land-use inventories;
    (3) U.S. Department of Agriculture Natural Resources Conservation 
Service Local Identification Maps;
    (4) U.S. Geological Survey Topographic Maps; and
    (5) DOE environmental documents, e.g., NEPA and CERCLA documents.
    (d) Pursuant to Sec. 1022.5 of this part and paragraphs (b) and (c) 
of this section, DOE shall prepare:
    (1) A floodplain assessment for any proposed floodplain action in 
the base floodplain or for any proposed floodplain action that is a 
critical action located in the critical action floodplain; or
    (2) A wetland assessment for any proposed wetland action.



Sec. 1022.12  Notice of proposed action.

    (a) For a proposed floodplain or wetland action for which an EIS is 
required, DOE shall use applicable NEPA procedures to provide the 
opportunity for early public review of the proposed action. A notice of 
intent to prepare the EIS may be used to satisfy the requirement for DOE 
to publish a notice of proposed floodplain or wetland action.
    (b) For a proposed floodplain or wetland action for which no EIS is 
required, DOE shall take appropriate steps to send a notice of proposed 
floodplain or wetland action to appropriate government agencies (e.g., 
FEMA regional offices, host and affected States, and tribal and local 
governments) and to persons or groups known to be interested in or 
potentially affected by the proposed floodplain or wetland action. DOE 
also shall distribute the notice in the area where the proposed action 
is to be located (e.g., by publication in local newspapers, through 
public service announcements, by posting on- and off-site). In addition, 
for a proposed floodplain or wetland action that may result in effects 
of national concern to the floodplain or wetland or both, DOE shall 
publish the notice in the Federal Register.

[[Page 891]]



Sec. 1022.13  Floodplain or wetland assessment.

    (a) A floodplain or wetland assessment shall contain the following 
information:
    (1) Project Description. This section shall describe the proposed 
action and shall include a map showing its location with respect to the 
floodplain and/or wetland. For actions located in a floodplain, the 
nature and extent of the flood hazard shall be described, including the 
nature and extent of hazards associated with any high-hazard areas.
    (2) Floodplain or Wetland Impacts. This section shall discuss the 
positive and negative, direct and indirect, and long- and short-term 
effects of the proposed action on the floodplain and/or wetland. This 
section shall include impacts on the natural and beneficial floodplain 
and wetland values (Sec. 1022.4) appropriate to the location under 
evaluation. In addition, the effects of a proposed floodplain action on 
lives and property shall be evaluated. For an action proposed in a 
wetland, the effects on the survival, quality, and function of the 
wetland shall be evaluated.
    (3) Alternatives. DOE shall consider alternatives to the proposed 
action that avoid adverse impacts and incompatible development in the 
floodplain and/or wetland, including alternate sites, alternate actions, 
and no action. DOE shall evaluate measures that mitigate the adverse 
effects of actions in a floodplain and/or wetland including, but not 
limited to, minimum grading requirements, runoff controls, design and 
construction constraints, and protection of ecologically-sensitive 
areas.
    (b) For proposed floodplain or wetland actions for which an EA or 
EIS is required, DOE shall prepare the floodplain or wetland assessment 
concurrent with and included in the appropriate NEPA document.
    (c) For floodplain or wetland actions for which neither an EA nor an 
EIS is prepared, DOE shall prepare the floodplain or wetland assessment 
separately or incorporate it when appropriate into another environmental 
review process (e.g., CERCLA).



Sec. 1022.14  Findings.

    (a) If DOE finds that no practicable alternative to locating or 
conducting the action in the floodplain or wetland is available, then 
before taking action DOE shall design or modify its action in order to 
minimize potential harm to or within the floodplain or wetland, 
consistent with the policies set forth in E.O. 11988 and E.O. 11990.
    (b) For actions that will be located in a floodplain, DOE shall 
issue a floodplain statement of findings, normally not to exceed three 
pages, that contains:
    (1) A brief description of the proposed action, including a location 
map;
    (2) An explanation indicating why the action is proposed to be 
located in the floodplain;
    (3) A list of alternatives considered;
    (4) A statement indicating whether the action conforms to applicable 
floodplain protection standards; and
    (5) A brief description of steps to be taken to minimize potential 
harm to or within the floodplain.
    (c) For floodplain actions that require preparation of an EA or EIS, 
DOE may incorporate the floodplain statement of findings into the 
finding of no significant impact or final EIS, as appropriate, or issue 
such statement separately.
    (d) DOE shall send copies of the floodplain statement of findings to 
appropriate government agencies (e.g., FEMA regional offices, host and 
affected states, and tribal and local governments) and to others who 
submitted comments on the proposed floodplain action.
    (e) For proposed floodplain actions that may result in effects of 
national concern, DOE shall publish the floodplain statement of findings 
in the Federal Register, describing the location of the action and 
stating where a map is available.
    (f) For floodplain actions subject to E.O. 12372--Intergovernmental 
Review of Federal Programs (July 14, 1982), DOE also shall send the 
floodplain statement of findings to the State in accordance with 10 CFR 
part 1005--Intergovernmental Review of Department of Energy Programs and 
Activities.

[[Page 892]]



Sec. 1022.15  Timing.

    (a) For a proposed floodplain action, DOE shall allow 15 days for 
public comment following issuance of a notice of proposed floodplain 
action. After the close of the public comment period and before issuing 
a floodplain statement of findings, DOE shall reevaluate the 
practicability of alternatives to the proposed floodplain action and the 
mitigating measures, taking into account all substantive comments 
received. After issuing a floodplain statement of findings, DOE shall 
endeavor to allow at least 15 days of public review before implementing 
a proposed floodplain action. If a Federal Register notice is required, 
the 15-day period begins on the date of publication in the Federal 
Register.
    (b) For a proposed wetland action, DOE shall allow 15 days for 
public comment following issuance of a notice of proposed wetland 
action. After the close of the public comment period, DOE shall 
reevaluate the practicability of alternatives to the proposed wetland 
action and the mitigating measures, taking into account all substantive 
comments received, before implementing a proposed wetland action. If a 
Federal Register notice is required, the 15-day period begins on the 
date of publication in the Federal Register.



Sec. 1022.16  Variances.

    (a) Emergency actions. DOE may take actions without observing all 
provisions of this part in emergency situations that demand immediate 
action. To the extent practicable prior to taking an emergency action 
(or as soon as possible after taking such an action) DOE shall document 
the emergency actions in accordance with NEPA procedures at 10 CFR 
1021.343(a) or CERCLA procedures in order to identify any adverse 
impacts from the actions taken and any further necessary mitigation.
    (b) Timing. If statutory deadlines or overriding considerations of 
program or project expense or effectiveness exist, DOE may waive the 
minimum time periods in Sec. 1022.15 of this subpart.
    (c) Consultation. To the extent practicable prior to taking an 
action pursuant to paragraphs (a) or (b) of this section (or as soon as 
possible after taking such an action) the cognizant DOE program or 
project manager shall consult with the Office of NEPA Policy and 
Compliance.



Sec. 1022.17  Follow-up.

    For those DOE actions taken in a floodplain or wetland, DOE shall 
verify that the implementation of the selected alternative, particularly 
with regard to any adopted mitigation measures, is proceeding as 
described in the floodplain or wetland assessment and the floodplain 
statement of findings.



                      Subpart C_Other Requirements



Sec. 1022.21  Property management.

    (a) If property in a floodplain or wetland is proposed for license, 
easement, lease, transfer, or disposal to non-Federal public or private 
parties, DOE shall:
    (1) Identify those uses that are restricted under applicable 
floodplain or wetland regulations and attach other appropriate 
restrictions to the uses of the property; or
    (2) Withhold the property from conveyance.
    (b) Before completing any transaction that DOE guarantees, approves, 
regulates, or insures that is related to an area located in a 
floodplain, DOE shall inform any private party participating in the 
transaction of the hazards associated with locating facilities or 
structures in the floodplain.



Sec. 1022.22  Requests for authorizations or appropriations.

    It is DOE policy to indicate in any requests for new authorizations 
or appropriations transmitted to the Office of Management and Budget, if 
a proposed action is located in a floodplain or wetland and whether the 
proposed action is in accord with the requirements of E.O. 11988 and 
E.O. 11990 and this part.



Sec. 1022.23  Applicant responsibilities.

    DOE may require applicants for any use of real property (e.g., 
license, easement, lease, transfer, or disposal), permits, certificates, 
loans, grants, contract awards, allocations, or other

[[Page 893]]

forms of assistance or other entitlement related to activities in a 
floodplain or wetland to provide information necessary for DOE to comply 
with this part.



Sec. 1022.24  Interagency cooperation.

    If DOE and one or more agencies are directly involved in a proposed 
floodplain or wetland action, in accordance with DOE's NEPA or CERCLA 
procedures, DOE shall consult with such other agencies to determine if a 
floodplain or wetland assessment is required by subpart B of this part, 
identify the appropriate lead or joint agency responsibilities, identify 
the applicable regulations, and establish procedures for interagency 
coordination during the environmental review process.



PART 1023_CONTRACT APPEALS--Table of Contents



            Overview: Organization, Functions and Authorities

Sec.
1023.1 Introductory material on the Board and its functions.
1023.2 Organization and location of the Board.
1023.3 Principles of general applicability.
1023.4 Authorities.
1023.5 Duties and responsibilities of the Chair.
1023.6 Duties and responsibilities of Board members and staff.
1023.7 Board decisions; assignment of judges.
1023.8 Alternative dispute resolution (ADR).
1023.9 General guidelines.

            Subpart A_Rules of the Board of Contract Appeals

1023.101 Scope and purpose.
1023.102 Effective date.
1023.120 Rules of practice.

Subpart B [Reserved]

   Subpart C_Procedures Relating to Awards Under the Equal Access to 
                               Justice Act

                           General Provisions

1023.300 Definitions.
1023.301 Purpose of these rules.
1023.302 When the Act applies.
1023.303 Proceedings covered.
1023.304 Eligibility of applicants.
1023.305 Standards for awards.
1023.306 Allowable fees and expenses.
1023.307 [Reserved]
1023.308 Awards against other agencies.

                  Information Required from Applicants

1023.310 Contents of application--overview.
1023.311 Net worth exhibit.
1023.312 Documentation of fees and expenses.
1023.313 When an application may be filed.

                 Procedures for Considering Applications

1023.320 Filing and service of documents.
1023.321 Answer to application.
1023.322 Reply.
1023.323 Comments by other parties.
1023.324 Settlement.
1023.325 Further proceedings.
1023.326 Board decision.
1023.327 Reconsideration.
1023.328 Judicial review.
1023.329 Payment of award.

    Authority: 42 U.S.C. 2201, 5814, 7151, 7251; 5 U.S.C. 301; 41 U.S.C. 
321, 322, 601-613; 5 U.S.C. 571-583; 9 U.S.C. 1-16, unless otherwise 
noted.

            Overview: Organization, Functions and Authorities

    Source: 62 FR 24806, May 7, 1997, unless otherwise noted.



Sec. 1023.1  Introductory material on the Board and its functions.

    (a) The Energy Board of Contract Appeals (``EBCA'' or ``Board'') 
functions as a separate quasi-judicial entity within the Department of 
Energy (DOE). The Secretary has delegated to the Board's Chair the 
appropriate authorities necessary for the Board to maintain its separate 
operations and decisional independence.
    (b) The Board's primary function is to hear and decide appeals from 
final decisions of DOE contracting officers on claims pursuant to the 
Contract Disputes Act of 1978 (CDA), 41 U.S.C. 601 et seq. The Board's 
Rules of Practice for these appeals are set forth in subpart A of this 
part. Rules relating to recovery of attorney fees and other expenses 
under the Equal Access to Justice Act are set forth in subpart C of this 
part.
    (c) In addition to its functions under the CDA, the Secretary in 
Delegation Order 0204-162 has authorized the Board to:
    (1) Adjudicate appeals from agency contracting officers' decisions 
not taken pursuant to the CDA (non-CDA disputes) under the Rules of 
Practice set forth in subpart A of this part;

[[Page 894]]

    (2) Perform other quasi-judicial functions that are consistent with 
the Board members' duties under the CDA as directed by the Secretary;
    (3) Serve as the Energy Financial Assistance Appeals Board to hear 
and decide certain appeals by the Department's financial assistance 
recipients as provided in 10 CFR 600.22, under Rules of Procedure set 
forth in 10 CFR part 1024;
    (4) Serve as the Energy Invention Licensing Appeals Board to hear 
and decide appeals from license terminations, denials of license 
applications and petitions by third-parties for license terminations, as 
provided in 10 CFR part 781, under Rules of Practice set forth in 
subpart A of this part, modified by the Board as determined to be 
necessary and appropriate with advance notice to the parties; and
    (5) Serve as the Energy Patent Compensation Board to hear and 
decide, as provided in 10 CFR part 780, certain applications and 
petitions filed under authority provided by the Atomic Energy Act of 
1954, ch. 1073, 68 Stat. 919 (1954), and the Invention Secrecy Act, 35 
U.S.C. 181-188, including:
    (i) Whether a patent is affected with the public interest;
    (ii) Whether a license to a patent affected by the public interest 
should be granted and equitable terms therefor; and
    (iii) Whether there should be allotment of royalties, award, or 
compensation to a party contributing to the making of certain categories 
of inventions or discoveries, or an owner of a patent within certain 
categories, under Rules of Practice set forth in subpart A of this part, 
modified by the Board as determined to be necessary and appropriate, 
with advance notice to the parties.
    (d) The Board provides alternative disputes resolution neutral 
services and facilities, as agreed between the parties and the Board, 
for:
    (1) Disputes related to the Department's prime contracts and to 
financial assistance awards made by the Department.
    (2) Disputes related to contracts between the Department's cost-
reimbursement contractors, including Management and Operating 
Contractors (M&Os) and Environmental Remediation Contractors (ERMCs), 
and their subcontractors. Additionally, with the consent of both the 
responsible prime DOE cost-reimbursement contractor and the cognizant 
DOE Contracting Officer, the Board may provide neutral services and 
facilities for disputes under second tier subcontracts where the costs 
of litigating the dispute might be ultimately charged to the DOE as 
allowable costs through the prime contract.
    (3) Other matters involving DOE procurement and financial 
assistance, as appropriate.



Sec. 1023.2  Organization and location of the Board.

    (a) Location of the Board. (1) The Board's offices are located at, 
and hand and commercial parcel deliveries should be made to: Board of 
Contract Appeals, U.S. Department of Energy, 950 L'Enfant Plaza, SW., 
Suite 810, Washington, DC 20024.
    (2) The Board's mailing address is as follows. The entire nine digit 
ZIP code should be used to avoid delay: Board of Contract Appeals, U.S. 
Department of Energy, HG-50, Building 950, Washington, DC 20585-0116.
    (3) The Board's telephone numbers are (202) 426-9316 (voice) and 
(202) 426-0215 (facsimile).
    (b) Organization of the Board. As required by the CDA, the Board 
consists of a Chair, a Vice Chair, and at least one other member. 
Members are designated Administrative Judges. The Chair is designated 
Chief Administrative Judge and the Vice Chair, Deputy Chief 
Administrative Judge.



Sec. 1023.3  Principles of general applicability.

    (a) Adjudicatory functions. The following principles shall apply to 
all adjudicatory activities whether pursuant to the authority of the 
CDA, authority delegated under this part, or authority of other laws, 
rules, or directives.
    (1) The Board shall hear and decide each case independently, fairly, 
and impartially.
    (2) Decisions shall be based exclusively upon the record established 
in each case. Written or oral communication with the Board by or for one 
party

[[Page 895]]

is not permitted without participation or notice to other parties. 
Except as provided by law, no person or agency, directly or indirectly 
involved in a matter before the Board, may submit off the record to the 
Board or the Board's staff any evidence, explanation, analysis, or 
advice (whether written or oral) regarding any matter at issue in an 
appeal, nor shall any member of the Board or of the Board's staff accept 
or considerex partecommunications from any person. This provision does 
not apply to consultation among Board members or staff or to other 
persons acting under authority expressly granted by the Board with 
notice to parties. Nor does it apply to communications concerning the 
Board's administrative functions or procedures, including ADR.
    (3) Decisions of the Board shall be final agency decisions and shall 
not be subject to administrative appeal or administrative review.
    (b) Alternative Dispute Resolution (ADR) Functions. (1) Board judges 
and personnel shall perform ADR related functions impartially, with 
procedural fairness, and with integrity and diligence.
    (2) Ex parte communications with Board staff and judges limited to 
the nature, procedures, and availability of ADR through the Board are 
permitted and encouraged. Once parties have agreed to engage in ADR and 
have entered into an ADR agreement accepted by the Board,ex 
partecommunications by Board neutrals, support staff and parties shall 
be as specified by any applicable agreements or protocols and as is 
consistent with law, integrity, and fairness.
    (3) Board-supplied neutrals and support personnel shall keep ADR 
matters confidential and comply with any confidentiality requirements of 
ADR agreements accepted by the Board. Board personnel may not disclose 
any confidential information unless permitted by the parties or required 
to do so by law.



Sec. 1023.4  Authorities.

    (a) Contract Disputes Act Authorities. The CDA imposes upon the 
Board the duty, and grants it the powers necessary, to hear and decide, 
or to otherwise resolve through agreed procedures, appeals from 
decisions made by agency contracting officers on contractor claims 
relating to contracts entered into by the DOE or relating to contracts 
of another agency, as provided in Section 8(d) of the CDA, 41 U.S.C. 
607(d). The Board may issue rules of practice or procedure for 
proceedings pursuant to the CDA. The CDA also imposes upon the Board the 
duty, and grants it powers necessary, to act upon petitions for orders 
directing contracting officers to issue decisions on claims relating to 
such contracts, 41 U.S.C. 605(c)(4). The Board may apply through the 
Attorney General to an appropriate United States District Court for an 
order requiring a person, who has failed to obey a subpoena issued by 
the Board, to produce evidence or to give testimony, or both, 41 U.S.C. 
610.
    (b) General Powers and Authorities. The Board's general powers 
include, but are not limited to, the powers to:
    (1) Manage its cases and docket; issue procedural orders; conduct 
conferences and hearings; administer oaths; authorize and manage 
discovery, including depositions and the production of documents or 
other evidence; take official notice of facts within general knowledge; 
call witnesses on its own motion; engage experts; dismiss actions with 
or without prejudice; decide all questions of fact or law raised in an 
action; and make and publish rules of practice and procedure;
    (2) Exercise, in proceedings to which it applies, all powers granted 
to arbitrators by the Federal Arbitration Act, 9 U.S.C. 1-14, including 
the power to issue summonses.
    (c) In addition to its authorities under the CDA, the Board has been 
delegated by Delegation Order 0204-162 issued by the Secretary of 
Energy, the following authorities:
    (1) Issue rules, including rules of procedure, not inconsistent with 
this section and departmental regulations;
    (2) Issue subpoenas under the authority of Sec. 161.c of the Atomic 
Energy Act of 1954, 42 U.S.C. 2201(c), as applicable;
    (3) Such other authorities as the Secretary may delegate.

[[Page 896]]



Sec. 1023.5  Duties and responsibilities of the Chair.

    The Chair shall be responsible for the following:
    (a) The proper administration of the Board;
    (b) Assignment and reassignment of cases, including alternative 
dispute resolution (ADR) proceedings, to administrative judges, hearing 
officers, and decision panels;
    (c) Monitoring the progress of individual cases to promote their 
timely resolution;
    (d) Appointment and supervision of a Recorder;
    (e) Arranging for the services of masters, mediators, and other 
neutrals;
    (f) Issuing delegations of Board authority to individual 
administrative judges, panels of judges, commissioners, masters, and 
hearing officers within such limits, if any, which a majority of the 
members of the Board shall establish;
    (g) Designating an acting chair during the absence of both the Chair 
and the Vice Chair;
    (h) Designating a member of another Federal board of contract 
appeals to serve as the third member of a decision panel if the Board is 
reduced to less than three members because of vacant positions, 
protracted absences, disabilities or disqualifications;
    (i) Authorizing and approving ADR arrangements for Board cases; 
obtaining non-Board personnel to serve as settlement judges, third-party 
neutrals, masters and similar capacities; authorizing the use of Board-
provided personnel and facilities in ADR capacities, for matters before 
the Board, and for other matters when requested by officials of the DOE; 
and entering into arrangements with other Federal administrative forums 
for the provision of personnel to serve in ADR capacities on a 
reciprocal basis;
    (j) Recommending to the Secretary the selection of qualified and 
eligible members. New members shall, upon selection, be appointed to 
serve as provided in the CDA;
    (k) Determining whether member duties are consistent with the CDA; 
and
    (l) Reporting Board activities to the Secretary not less often than 
biennially.



Sec. 1023.6  Duties and responsibilities of Board members and staff.

    (a) As is consistent with the Board's functions, Board members and 
staff shall perform their duties with the highest integrity and 
consistent with the principles set forth in Sec. 1023.3.
    (b) Members of the Board and Board attorneys may serve as 
commissioners, magistrates, masters, hearing officers, arbitrators, 
mediators, and neutrals and in other similar capacities.
    (c) Except as may be ordered by a court of competent jurisdiction, 
members of the Board and its staff are permanently barred fromex 
partedisclosure of information concerning any Board deliberations.



Sec. 1023.7  Board decisions; assignment of judges.

    (a) In each case, the Chair shall assign an administrative judge as 
the Presiding Administrative Judge to hear a case and develop the record 
upon which the decision will be made. A Presiding Judge has authority to 
act for the Board in all non-dispositive matters, except as otherwise 
provided in this Part. This subparagraph shall not preclude the 
Presiding Administrative Judge from taking dispositive actions as 
provided in this Part or by agreement of the parties. Other persons 
acting as commissioners, magistrates, masters, or hearing officers shall 
have such powers as the Board shall delegate.
    (b) Except as provided by law, rule, or agreement of the parties, 
contract appeals and other cases are assigned to a deciding panel 
established by the Board Chair consisting of two or more administrative 
judges.
    (c) The concurring votes of a majority of a deciding panel shall be 
sufficient to decide an appeal. All members assigned to a panel shall 
vote unless unavailable. The Chair will assign an additional member if 
necessary to resolve tie votes.



Sec. 1023.8  Alternative dispute resolution (ADR).

    (a) Statement of Policy. It is the policy of the DOE and of the 
Board to facilitate consensual resolution of disputes and to employ ADR 
in all of the Board's functions when agreed to by

[[Page 897]]

the parties. ADR is a core judicial function performed by the Board and 
its judges.
    (b) ADR for Docketed Cases. Pursuant to the agreement of the 
parties, the Board, in an exercise of discretion, may approve either the 
use of Board-annexed ADR (ADR which is conducted under Board auspices 
and pursuant to Board order) or the suspension of the Board's procedural 
schedule to permit the parties to engage in ADR outside of the Board's 
purview. While any form of ADR may be employed, the forms of ADR 
commonly employed using Board judges as neutrals are: case evaluation by 
a settlement judge (with or without mediation by the judge); 
arbitration; mini-trial; summary (time and procedurally limited) trial 
with one-judge; summary binding (non-appealable) bench decision; and 
fact-finding.
    (c) ADR for Non-Docketed Disputes. As a general matter the earlier a 
dispute is identified and resolved, the less the financial and other 
costs incurred by the parties. When a contract is not yet complete there 
may be opportunities to eliminate tensions through ADR and to confine 
and resolve problems in a way that the remaining performance is eased 
and improved. For these reasons, the Board is available to provide a 
full range of ADR services and facilities before, as well as after, a 
case is filed with the Board. A contracting officer's decision is not a 
prerequisite for the Board to provide ADR services and such services may 
be furnished whenever they are warranted by the overall best interests 
of the parties. The forms of ADR most suitable for mid-performance 
disputes are often the non-dispositive forms such as mediation, 
facilitation and fact-finding, mini-trials, or non-binding arbitration, 
although binding arbitration is also available.
    (d) Availability of Information on ADR. Parties are encouraged to 
consult with the Board regarding the Board's ADR services at the 
earliest possible time. A handbook describing Board ADR is available 
from the Board upon request.



Sec. 1023.9  General guidelines.

    (a) The principles of this Overview shall apply to all Board 
functions unless a specific provision of the relevant rules of practice 
applies. It is, however, impractical to articulate a rule to fit every 
circumstance. Accordingly, this part, and the other Board Rules 
referenced in it, will be interpreted and applied consistent with the 
Board's responsibility to provide just, expeditious, and inexpensive 
resolution of cases before it. When Board rules of procedure do not 
cover a specific situation, a party may contend that the Board should 
apply pertinent provisions from the Federal Rules of Civil Procedure. 
However, while the Board may refer to the Federal Rules of Civil 
Procedure for guidance, such Rules are not binding on the Board absent a 
ruling or order to the contrary.
    (b) The Board is responsible to the parties, the public, and the 
Secretary for the expeditious resolution of cases before it. 
Accordingly, subject to the objection of a party, the procedures and 
time limitations set forth in rules of procedure may be modified, 
consistent with law and fairness. Presiding judges and hearing officers 
may issue prehearing orders varying procedures and time limitations if 
they determine that purposes of the CDA or the interests of justice 
would be advanced thereby and provided both parties consent. Parties 
should not consume an entire period authorized for an action if the 
action can be sooner completed. Informal communication between parties 
is encouraged to reduce time periods whenever possible.
    (c) The Board shall conduct proceedings in compliance with the 
security regulations and requirements of the Department or other agency 
involved.



            Subpart A_Rules of the Board of Contract Appeals

    Authority: Pub. L. 95-91, sec. 301, 91 Stat. 577; Pub. L. 95-563; EO 
10789.

    Source: 44 FR 64270, Nov. 6, 1979, unless otherwise noted.



Sec. 1023.101  Scope and purpose.

    The rules of the Board of Contract Appeals are intended to govern 
all appeal procedures before the Department of Energy Board of Contract 
Appeals (Board) which are within the scope of the Contract Disputes Act 
of 1978 (41

[[Page 898]]

U.S.C. 601 et seq.). The rules, with modifications determined by the 
Board to be appropriate to the nature of the dispute, also apply to all 
other contract and subcontract related appeals which are properly before 
the Board.

[62 FR 24808, May 7, 1997]



Sec. 1023.102  Effective date.

    The rules of the Board of Contract Appeals shall apply to all 
proceedings filed on or after June 6, 1997, except that Rule 1 (a) and 
(b) of Sec. 1023.120 shall apply only to appeals filed on or after 
October 1, 1995.

[62 FR 24808, May 7, 1997]



Sec. 1023.120  Rules of practice.

    The following rules of practice shall govern the procedure as to all 
contract disputes appealed to this Board in accordance with this 
subpart:

                         Preliminary Procedures

                                  Rule

1 Appeals, how taken.
2 Notice of appeal, contents.
3 Docketing of appeals.
4 Contracting officer appeal file.
5 Motions.
6 Appellants election of procedure.
7 Pleadings.
8 Amendments of pleadings or record.
9 Hearing election.
10 Submission of appeal without a hearing.
11 Prehearing briefs.
12 Prehearing conference.
13 Optional Small Claims (Expedited) procedure.
14 Optional Accelerated procedure.
15 Settling the record.
16 Discovery--General.
17 Discovery--Depositions, interrogatories, admissions, production and 
          inspection.
18 Subpoenas.
19 Time and service of papers.

                                Hearings

20 Hearings--Time and place.
21 Hearings--Notice.
22 Hearings--Unexcused absence of a party.
23 Hearings--Rules of evidence and examination of witneses.

                             Representation

24 Appellant.
25 Respondent.

                                Decisions

26 Decisions.
27 Motion for reconsideration.
28 Remand from court.

                               Dismissals

29 Dismissals without prejudice.
30 Dismissal for failure to prosecute.

                                Sanctions

31 Failure to obey Board order.

                         Preliminary Procedures

    Rule 1 Appeals, How Taken. (a) Notice of an appeal shall be in 
writing and mailed or otherwise furnished to the Board within 90 days 
from the date of receipt of a contracting officer's decision. A copy of 
the notice shall be furnished at the same time to the contracting 
officer from whose descision the appeal is taken.
    (b) Where the contractor has submitted a claim of $100,000 or less 
to the contracting officer and has requested a written decision within 
60 days from receipt of the request, and where the contracting officer 
has not done so, the contractor may file a notice of appeal as provided 
in subparagraph (a) above, citing the failure of the contracting officer 
to issue a decision.
    (c) Where the contractor has submitted a claim in excess of $100,000 
to the contracting officer and the contracting officer has failed to 
issue a decision within a reasonable time, the contractor may file a 
notice of appeal as provided in subparagraph (a) above, citing the 
failure to issue a decision.
    (d) Upon docketing of appeals filed pursuant to (b) or (c) of this 
Rule, the Board, at its option, may stay further proceedings pending 
issuance of a final decision by the contracting officer within the time 
fixed by the Board, or order the appeal to proceed without the 
contracting officer's decision.
    Rule 2 Notice of Appeal, Contents. A notice of appeal must indicate 
that an appeal is being taken and must identify the contract (by 
number), and the department, administration, agency or bureau involved 
in the dispute, the decision from which the appeal is taken, and the 
amount in dispute, if known. The notice of appeal should be signed by 
the appellant (the contractor making the appeal), or by the appellant's 
duly authorized representative or attorney. The complaint referred to in 
Rule 7 may be filed with the notice of appeal, or the appellant may 
designate the notice of appeal as a complaint, if it otherwise fulfills 
the requirements of a complaint.
    Rule 3 Docketing of Appeals. When a notice of appeal in any form has 
been received by the Board, it shall be docketed promptly. Notice of 
docketing shall be mailed promptly to all parties (with a copy of these 
rules to appellant).
    Rule 4 Contracting Officer Appeal File. (a) Composition: Within 30 
days after receipt of notice that an appeal has been docketed,

[[Page 899]]

the contracting officer shall assemble and transmit to the Board one 
copy of the appeal file with an additional copy each to appellant 
(except that items 1 and 2, below, need not be retransmitted to the 
appellant) and to attorney for respondent. The appeal file shall consist 
of all documents pertinent to the appeal, including:
    (1) The contracting officer's decision and findings of fact from 
which the appeal is taken;
    (2) The contract, including pertinent specifications, modifications, 
plans, and drawings;
    (3) All correspondence between the parties pertinent to the appeal, 
including the letters of claim in response to which the decision was 
issued;
    (4) Transcripts of any testimony taken during the course of 
proceedings, and affidavits or statements of any witnesses on the matter 
in dispute made prior to the filing of the notice of appeal with the 
Board; and
    (5) Any additional information considered pertinent.
    (b) Organization: Documents in the appeal file may be originals, 
legible facsimiles, or anthenticated copies. They shall be arranged in 
chronological order, where practicable, and indexed to identify readily 
the contents of the file. The contracting officer's final decision and 
the contract shall be conveniently placed in the file for ready 
reference.
    (c) Supplements: Within 30 days after receipt of a copy of the 
appeal file assembled by the contracting officer, the appellant may 
supplement the file by transmitting to the Board any additional 
documents which it considers pertinent to the appeal and shall furnish 
two copies of such documents to attorney for respondent.
    (d) Burdensome documents. The Board may waive the requirement of 
furnishing to the other party copies of bulky, lengthy, or out-of-size 
documents in the appeal file when a party has shown that doing so would 
impose an undue burden. At the time a party files with the Board a 
document as to which such a waiver has been granted, the other party 
shall be notified that the document or a copy is available for 
inspection at the offices of the Board or of the party filing the 
document.
    (e) Status of Documents: Documents in the appeal file or supplements 
thereto shall become part of the historical record but shall not be 
included in the record upon which the Board's decision will be rendered 
unless each individual document has been offered and admitted into 
evidence.
    Rule 5 Motions. (a) Any timely motion may be considered by the 
Board. Motions shall be in writing (unless made during a conference or a 
hearing), shall indicate the relief or order sought, and shall state 
with particularity the grounds therefore. Those motions which would 
dispose of a case shall be filed promptly and shall be supported by a 
brief. The Board may, on its own motion initiate any motion by notice to 
the parties.
    (b) Parties may respond to a dispositive motion within 20 days of 
receipt, or as otherwise ordered by the Board. Answering material to all 
other motions may be filed within 10 days after receipt. Replies to 
responses ordinarily will not be allowed.
    (c) Board rules relating to pleadings, service and number of copies 
shall apply to all motions. In its discretion, the Board may permit a 
hearing on a motion, and may require presentation of briefs, or it may 
defer a decision pending hearing on both the motion and the merits.
    Rule 6 Appellants election of procedures. (a) The election to use 
Small Claims (Expedited) (Rule 13) or Accelerated (Rule 14) procedures 
is available only to appellant. The election shall be filed with the 
Board in writing no later than 30 days after receipt of notice that the 
appeal has been docketed, unless otherwise allowed by the Board.
    (b) Where the amount in dispute is $100,000 or less, appellant may 
elect to use the Accelerated procedures. Where the amount is $50,000 or 
less, appellant may elect to use the Small Claims (Expedited) or the 
Accelerated procedures. Any question regarding the amount in dispute 
shall be determined by the Board.
    Rule 7 Pleadings. (a) Complaint. Within 30 days after receipt of 
notice that the appeal has been docketed, the appellant shall file with 
the Board an original and two copies of a complaint setting forth 
simple, concise and direct statements of each of its claims. Appellant 
shall also set forth the basis, with appropriate reference to contract 
provisions, of each claim and the dollar amount claimed, to the extent 
known. This pleading shall fulfill the generally recognized requirements 
of a complaint, although no particular form is required. A copy of the 
complaint shall be served upon the attorney for the respondent or, if 
the identity of the latter is not known, upon the General Counsel, 
Department of Energy, Forrestal Building, Washington, D.C. 20585. If the 
complaint is not filed within 30 days and in the opinion of the Board 
the issues before the Board are sufficiently defined, appellant's claim 
and Notice of Appeal may be deemed to set forth its complaint and the 
respondent shall be so notified.
    (b) Answer. Within 30 days after receipt of complaint, or a Rule 
7(a) notice from the Board, the respondent shall file with the Board an 
original and two copies of an Answer, setting forth simple, concise and 
direct statements of respondent's defense to each claim asserted by 
appellant. This pleading shall fulfill the generally recognized 
requirements of an Answer, and shall set forth any affirmative defenses 
or counter-claims as appropriate. Should the answer not be filed

[[Page 900]]

within 30 days, the Board may, in its discretion, enter a general denial 
on behalf of the respondent and the parties shall be so notified.
    Rule 8 Amendments of Pleadings or Record. (a) The Board upon its own 
initiative or upon application by a party may order a party to make a 
more definite statement of the complaint or answer, or to reply to an 
answer. The application for such an order suspends the time for 
responsive pleadings. The Board may, in its discretion, and within the 
proper scope of the appeal, permit either party to amend its pleadings 
upon conditions fair to both parties.
    (b) When issues not raised by the pleadings are tried by express or 
implied consent of the parties, or by permission of the Board, they 
shall be treated in all respects as if they had been raised in the 
pleadings. In such instances, motions to amend the pleadings to conform 
to the proof may be entered, but are not required. Similarly, if 
evidence is objected to at a hearing on the ground that it is not 
relevant to an issue raised by the pleadings, it may be admitted but the 
objecting party may be granted a continuance if necessary to enable it 
to meet such evidence.
    Rule 9 Hearing Election. Except as may be required under Rules 13 or 
14, each party shall advise the Board following service upon appellant 
of respondent's Answer, or a Rule 7(b) Notice from the Board, whether it 
desires a hearing as prescribed in Rules 20 through 23.
    Rule 10 Submission of Appeal without a Hearing. Either party may 
elect to waive a hearing and to submit its case upon the record as 
settled pursuant to Rule 15. Waiver by one party shall not deprive the 
other party of an opportunity for a hearing. Submission of a case 
without hearing does not relieve the parties from the necessity of 
proving the facts supporting their allegations or defenses. Affidavits, 
depositions, admissions, answers to interrogatories, and stipulations 
may be employed to supplement other documentary evidence in the Board 
record. The Board may permit such submission to be supplemented by oral 
argument and by briefs.
    Rule 11 Prehearing Briefs. The Board may, in its discretion, require 
the parties to submit prehearing briefs in any case or motion. If the 
Board does not require briefs, either party may, upon timely notice to 
the other party, furnish a prehearing brief to the Board. In any case 
where a prehearing brief is submitted, it shall be furnished so as to be 
received by the Board at least 15 days prior to the date set for 
hearing, and a copy shall simultaneously be furnished to the other 
party.
    Rule 12 Prehearing Conference. (a) Whether the case is to be 
submitted under Rule 10, or heard pursuant to Rules 20 through 23, the 
Board may, upon its own initiative or upon the application of either 
party, arrange a telephone conference or call upon the parties to appear 
before an administrative judge for a conference to consider:
    (1) Simplification, clarification, or severing of the issues;
    (2) The possibility of obtaining stipulations, admissions, 
agreements and rulings on documents, understandings on matters already 
of record, or similar agreements that will avoid unnecessary proof;
    (3) Agreements and rulings to facilitate discovery;
    (4) Limitation of the number of expert witnesses, or avoidance with 
similar cumulative evidence;
    (5) The possibility for settlement of any or all of the issues in 
dispute; and
    (6) Such other matters as may aid in the disposition of the appeal 
including the filing of proposed Findings of Fact and Conclusions of 
Law, briefs, and other such papers.
    (b) Any conference results not reflected in a transcript shall be 
reduced to writing by the Administrative Judge and the writing shall 
thereafter constitute part of the evidentiary record.
    Rule 13 Optional Small Claims (Expedited) Procedure. (a) the Small 
Claims (Expedited) procedure for disputes involving $50,000, or less, 
provides for simplified rules of procedure to facilitate the decision of 
an appeal, whenever possible, within 120 days after the Board receives 
written notice of the election.
    (b) Promptly upon receipt of an appellant's election of the Small 
Claims (Expedited) procedure in accordance with Rule 6, the assigned 
Administrative Judge will arrange an informal meeting or a telephone 
conference with both parties to:
    (1) Identify and simplify the issues in dispute;
    (2) Establish a simplified procedure appropriate to the particular 
appeal;
    (3) Determine whether a hearing is desired, and, if so, fix a time 
and place;
    (4) Establish a schedule for the expedited resolution of the appeal; 
and
    (5) Assure that procedures have been instituted for informal 
discussions on the possibility of settlement of any or all of the 
disputes in question.
    (c) Failure to request an oral hearing within 15 days of receipt of 
notice of the Small Claims election shall be deemed a waiver and an 
election to submit the case on the record under Rule 10.
    (d) The subpoena power set forth in Rule 18 is available for use 
under the Small Claims (Expedited) procedure.
    (e) The filing of pleadings, motions, discovery proceedings or 
prehearing procedures will be permitted only to the extent consistent 
with the requirement of conducting the hearing at the scheduled time and 
place or, if no hearing is scheduled, of closing the

[[Page 901]]

record at an early time so as to permit a decision of the appeal within 
the target limit of 120 days. The Board, in its discretion, may impose 
shortened time periods for any actions required or permitted under these 
rules, necessary to enable the Board to decide the appeal within the 
target date allowing whatever time, up to 30 days, that it considers 
necessary for the preparation of the decision after closing the record 
and the filing of briefs, if any.
    (f) Decisions in appeals considered under the Small Claims 
(Expedited) procedure will be rendered by a single Administrative Judge. 
If there is a hearing, the presiding Administrative Judge may, 
exercising discretion, hear closing oral arguments of the parties and 
then render an oral decision on the record. Whenever such an oral 
decision is rendered, the Board subsequently will furnish the parties 
with a written transcript of the decision for record and payment 
purposes and to establish the date for commencement of the time period 
for filing a motion for reconsideration under Rule 27.
    (g) Decisions of the Board under the Small Claims (Expedited) 
procedure shall have no value as precedent for future cases and, in the 
absence of fraud, cannot be appealed.
    Rule 14 Optional Accelerated Procedure. (a) This option makes 
available an Accelerated procedure, for disputes involving $100,000 or 
less, whereby the appeal is resolved, whenever possible, within 180 days 
from board notice of the election.
    (b) Promptly upon receipt of appellant's election of the Accelerated 
procedure in accordance with Rule 6, the assigned Administrative Judge 
will arrange an informal meeting or a telephone conference with both 
parties to:
    (1) Identify and simplify the issues in dispute;
    (2) Establish a simplified procedure appropriate to the particular 
appeal;
    (3) Determine whether a hearing is desired and, if so, fix a time 
and place;
    (4) Establish a schedule for the accelerated resolution of the 
appeal; and
    (5) Assure that procedures have been instituted for informal 
discussions on the possibility of settlement of any or all of the 
disputes in question.
    (c) Failure by either party to request an oral hearing within 15 
days of receipt of notice of the election under Rule 6 shall be deemed a 
waiver and an election to submit on the record under Rule 10.
    (d) The subpoena power set forth in Rule 18 is available for use 
under the Accelerated procedure.
    (e) The filing of pleadings, motions, discovery proceedings or 
prehearing procedures will be permitted only to the extent consistent 
with the requirement for conducting the hearing at the scheduled time 
and place or, if no hearing is scheduled, the closing of the record at 
an early time so as to permit decision of the appeal within the target 
limit of 180 days. The Board, in its discretion, may impose shortened 
time periods for any actions required or permitted under these rules, 
necessary to enable the Board to decide the appeal within the target 
date, allowing whatever time, up to 30 days, that it considers necessary 
for the preparation of the decision after closing the record and the 
filing of briefs, if any.
    (f) Decisions in appeals considered under the Accelerated procedure 
will be rendered by a single Administrative Judge with the concurrence 
of another assigned Administrative Judge or an additional member in the 
event of disagreement.
    Rule 15 Settling the Record. (a) The record upon which the Board's 
decision will be rendered consists of the documents, papers and exhibits 
admitted in evidence, and the pleadings, prehearing conference memoranda 
or orders, prehearing briefs, admissions, stipulations, transcripts of 
conferences and hearings, and posthearing briefs. The record will, at 
all reasonable times, be available for inspection by the parties at the 
office of the Board. In cases submitted pursuant to Rule 10 the 
evidentiary records shall be comprised of those documents, papers and 
exhibits submitted by the parties and admitted by the Board.
    (b) Except as the Board, in its discretion, may otherwise order, no 
proof shall be received in evidence after completion of the evidentiary 
hearing or, in cases submitted on the record, after notification by the 
Board that the case is ready for decision.
    (c) The weight to be attached to any evidence of record will rest 
within the sound discretion of the Board. The Board may in any case 
require either party, with appropriate notice to the other party, to 
submit additional evidence on any matter relevant to the appeal.
    Rule 16 Discovery--General. (a) General Policy and Protective 
Orders--The parties are encouraged to engage in voluntary discovery 
procedures. In connection with any deposition or other discovery 
procedure, the Board may make any order required to protect a party or 
person from annoyance, embarrassment, or undue burden or expense. Those 
orders may include limitations on the scope, method, time and place for 
discovery, and provisions for protecting trade secrets or other 
confidential information or documents.
    (b) Expenses--Each party bears its own expenses associated with 
discovery, unless in the discretion of the Board, the expenses are 
apportioned otherwise.
    (c) Subpoenas--Where appropriate, a party may request the issuance 
of a subpoena under the provisions of Rule 18.
    Rule 17 Discovery--Depositions, Interrogatories, Admissions, 
Production and Inspection.

[[Page 902]]

(a) When Depositions Permitted--If the parties are unable to agree upon 
the taking of a deposition, the Board may, upon application of either 
party and for good cause shown, order the taking of testimony of any 
person by deposition upon oral examination or written interrogatories 
before any officer authorized to administer oaths at the place of 
examination.
    (b) Orders on Depositions--The time, place, and manner of taking 
depositions shall be as mutually agreed by the parties, or failing such 
agreement, as governed by order of the Board.
    (c) Depositions as Evidence--No testimony taken by depositions shall 
be considered as part of the evidence in the hearing of an appeal until 
such testimony is offered and received as evidence at such hearing. It 
will not ordinarily be received as evidence if the deponent is present 
and can testify at the hearing. In such instances, however, the 
deposition may be used to contradict or impeach the testimony of the 
deponent given at the hearing. In cases submitted on the record, the 
Board may, in its discretion, receive depositions to supplement the 
record.
    (d) Interrogatories, etc.--After an appeal has been filed with the 
Board, a party may serve on the other party: (1) Written interrogatories 
to be addressed separately in writing, signed under oath and answered 
within 30 days unless objections are filed within 10 days of receipt; 
(2) a request for the admission of specified facts or the authenticity 
of any documents, to be answered or objected to within 30 days after 
service. The factual statements and the authenticity of the documents 
shall be deemed admitted upon failure of a party, to timely respond; and 
(3) a request for the production, inspection and copying of any 
documents or objects not privileged, which are relevant to the appeal.
    (e) Any discovery engaged in under this Rule shall be subject to the 
provisions of Rule 16.
    Rule 18 Subpoenas. (a) Voluntary Cooperation--Each party is expected 
to cooperate and make available witnesses and evidence under its control 
without issuance of a subpoena. Additionally, parties will secure 
voluntary attendance of desired third-party witnesses and production of 
desired third-party books, papers, documents, or tangible things 
whenever possible.
    (b) Procedure
    (1) Upon request of a party and after a showing of relevance a 
subpoena may be issued requiring the attendance of a witness for the 
purpose of taking testimony at a deposition or hearing and, if 
appropriate, the production by the witness, at the deposition or 
hearing, of documentary evidence, including inspection and copying, as 
designated in the subpoena.
    (2) The request shall identify the name, title, and address of the 
person to whom the subpoena is addressed, the specific documentary 
evidence sought, the time and place proposed and a showing of relevancy 
to the appeal.
    (3) Every subpoena shall state the name of the Board, the title of 
the appeal, and shall command each person to whom it is directed to 
attend and give testimony, and if appropriate, to produce specified 
documentary evidence at a time and place therein specified. The 
presiding Administrative Judge shall sign the subpoena and may, in his 
discretion, enter the name of the witness, or the documentary evidence 
sought, or may leave it blank. The party requesting the subpoena shall 
complete the subpoena before service.
    (4) Where the witness is located in a foreign country, a letter 
rogatory or subpoena may be issued and served under the circumstances 
and in the manner provided in 28 U.S.C. 1781-1784.
    (c) Requests to Quash or Modify--Upon motion made promptly but in 
any event not later than the time specified in the subpoena for 
compliance, the Board may: (i) Quash or modify the subpoena if it is 
unreasonable and oppressive or for other good cause shown; (ii) 
condition denial of the motion upon payment by the person in whose 
behalf the subpoena was issued of the reasonable cost of producing the 
subpoenaed documentary evidence; or (iii) apply protective provisions 
under Rule 16(a).
    (d) Service--
    (1) The party requesting the subpoena shall arrange for service.
    (2) A subpoena may be served at any place by a United States Marshal 
or Deputy Marshal, or by any other person who is not a party and not 
less than 18 years of age. Service of a subpoena shall be made by 
personally delivering a copy to the person named therein and tendering 
the fees for one day's attendance and the mileage that would be allowed 
in the courts of the United States. When the subpoena is issued on 
behalf of the United States or an officer or agency of the United 
States, money payments need not be tendered in advance of attendance.
    (3) The party requesting a subpoena shall be responsible for the 
payment of fees and mileage of the witness and of the officer who serves 
the subpoena. The failure to make payment of such charges on demand may 
be deemed by the Board as a sufficient ground for striking the testimony 
of the witness and any documentary evidence the witness has produced.
    (e) Contumacy or Refusal to Obey a Subpoena. In case of a contumacy 
or refusal to obey a subpoena by a person who resides, is found, or 
transacts business within the jurisdiction of a United States Court, the 
Board will apply to the Court through the Attorney General of the United 
States for an order requiring the person to appear before the Board or a 
member thereof to give testimony

[[Page 903]]

or produce evidence or both. Any failure of any such person to obey the 
order of the Court may be punished by the Court as a contempt thereof.
    Rule 19 Time and Service of Papers. (a) All pleadings, briefs or 
other papers submitted to the Board shall be filed in triplicate and a 
copy shall be sent to other parties. Such communications shall be sent 
by delivering in person or by mailing, properly addressed with postage 
prepaid, to the opposing party or, where the party is represented by 
counsel, to its counsel. Pleadings, briefs or other papers filed with 
the Board shall be accompanied by a statement, signed by the originating 
party, saying when, how, and to whom a copy was sent.
    (b) The Board may extend any time limitation for good cause and in 
accordance with legal precedent. All requests for time extensions shall 
be in writing except when raised during a recorded hearing.
    (c) In computing any period of time, the day of the event from which 
the designated period of time begins to run shall not be included, but 
the last day of the period shall be included unless it is a Saturday, 
Sunday, or a legal holiday, in which event the period shall run to the 
end of the next business day. Unless otherwise stated in a Rule or Board 
Order, dates will be met and papers considered filed when deposited in 
the mail system of the U.S. Postal Service, or hand-delivery is 
acknowledged at the Board offices.

                                Hearings

    Rule 20 Hearings: Time and Place. Hearings will be held at such 
places determined by the Board to best serve the interests of the 
parties and the Board. Hearings will be scheduled at the discretion of 
the Board with due consideration to the regular order of appeals, the 
requirements for expedited or accelerated procedures and other pertinent 
factors. On request by either party and for good cause, the Board may, 
in its discretion, change the time and place of a hearing.
    Rule 21 Hearings: Notice. The parties shall be given at least 15 
days notice of time and place set for hearings. In scheduling hearings, 
the Board will consider the desires of the parties and the requirement 
for just and inexpensive determination of appeals without unnecessary 
delay. Notices of hearing shall be promptly acknowledged by the parties. 
Failure to promptly acknowledge shall be deemed consent to the time and 
place.
    Rule 22 Hearings: Unexcused Absence of a Party. The unexcused 
absence of a party at the time and place set for hearing will not be 
occasion for delay. In the event of such absence, the presiding 
Administrative Judge may order the hearing to proceed and the case will 
be regarded as submitted by the absent party as under Rule 10.
    Rule 23 Hearings: Rules of Evidence and Examination of Witnesses. 
(a) Nature of Hearings--Hearings shall be as informal as may be 
reasonable and appropriate under the circumstances. Appellant and the 
respondent may offer such evidence as they deem appropriate and as would 
be admissible under the Federal Rules of Evidence or in the sound 
discretion of the presiding judge. The parties may stipulate the 
testimony that would be given by a witness if the witness were present. 
The Board may require evidence in addition to that offered by the 
parties.
    (b) Examination of Witnesses--Witnesses before the Board will be 
examined orally under oath or affirmation, unless the presiding 
Administrative Judge shall otherwise order.

                             Representation

    Rule 24 Appellant. An individual appellant may appear before the 
Board in person, a corporation by one of its officers; and a partnership 
or joint venture by one of its members; or any of these by an attorney 
at law duly licensed in any state, commonwealth, territory, the District 
of Columbia, or in a foreign country. An attorney representing an 
appellant shall file a written notice of appearance with the Board.
    Rule 25 Respondent. Counsel may, in accordance with their authority, 
represent the interest of the Government or other client before the 
Board. They shall file notices of appearance with the Board, and serve 
notice on appellant or appellant's attorney.

                             Board Decision

    Rule 26 Decisions. Except as allowed under Rule 13, decisions of the 
Board shall be in writing upon the record as described in Rule 15 and 
will be forwarded simultaneously to both parties. The rules of the Board 
and all final orders and decisions shall be available for public 
inspection at the offices of the Board.
    Rule 27 Motion for Reconsideration. (a) Motion for reconsideration 
shall set forth specifically the grounds relied upon to sustain the 
motion and shall be filed within 30 days after receipt of a copy of the 
Board's decision.
    (b) Motions for reconsideration of cases decided under either the 
Small Claims (Expedited) procedure or the Accelerated procedure need not 
be decided within the original 120-day or 180-day limit, but shall be 
processed and decided rapidly.
    Rule 28 Remand from Court. Whenever any court remands a case to the 
Board for further proceedings, each of the parties shall, within 20 days 
of such remand, submit a report to the Board recommending procedures to 
be followed so as to comply with the court's order. The Board shall 
consider the reports and enter special orders.

[[Page 904]]

                               Dismissals

    Rule 29 Dismissal Without Prejudice. In certain cases, appeals 
docketed before the Board are required to be placed in a suspense status 
and the Board is unable to proceed with disposition thereof for reasons 
not within the control of the Board. Where the suspension has continued, 
or may continue, for an inordinate length of time, the Board may, in its 
discretion, dismiss such appeals from its docket without prejudice to 
their restoration when the cause of suspension has been removed. Unless 
either party or the Board acts within three years to reinstate any 
appeal dismissed without prejudice, the dismissal shall be deemed with 
prejudice.
    Rule 30 Dismissal for Failure to Prosecute. Whenever a record 
discloses the failure of any party to file documents required by these 
rules, respond to notices or correspondence from the Board or otherwise 
indicates an intention not to continue the prosecution or defense of an 
appeal, the Board may issue an order requiring the offending party to 
show cause why the appeal should not be dismissed or granted, as 
appropriate. If no cause, the Board may take such action as it deems 
reasonable and proper.

                                Sanctions

    Rule 31 Failure to Obey Board Order. If any party fails or refuses 
to obey an order issued by the Board, the Board may issue such orders as 
it considers necessary to the just and expeditious conduct of the 
appeal, including dismissal with prejudice.

[44 FR 64270, Nov. 6, 1979. Redesignated at 62 FR 24808, May 7, 1997]

Subpart B [Reserved]



   Subpart C_Procedures Relating to Awards Under the Equal Access to 
                               Justice Act

    Authority: Sec. 644, Title VI, Pub. L. 95-91, 91 Stat. 599; 5 U.S.C. 
504.

    Source: 57 FR 53542, Nov. 12, 1992, unless otherwise noted.

                           General Provisions



Sec. 1023.300  Definitions.

    For purposes of these procedures:
    Agency Counsel means the attorney representing the Department or 
other agency in a proceeding under this subpart.
    Board means the Department of Energy Board of Contract Appeals.
    Covered Proceeding means an underlying proceeding as specified by 
paragraph (a) of Sec. 1023.303.
    Days means calendar days.



Sec. 1023.301  Purpose of these rules.

    The Equal Access to Justice Act, 5 U.S.C. 504 (called ``the Act'' in 
this subpart), provides for the award of attorney fees and other 
expenses to eligible individuals and entities who are parties to covered 
proceedings. An eligible party may receive an award when it prevails 
over an agency, unless the agency's position was substantially justified 
or special circumstances make an award unjust. These procedures describe 
the parties eligible for awards and covered Board proceedings. They also 
explain how to apply for awards and the procedures and standards that 
the Board will use to make them.



Sec. 1023.302  When the Act applies.

    The Act applies to any covered proceeding pending or commenced 
before the Board on or after August 5, 1985. It also applies to any such 
proceeding commenced before the Board on or after October 1, 1984, and 
finally disposed of before August 5, 1985, provided that an application 
for fees and expenses, as described in Sec. 1023.310 of this subpart, 
has been filed with the Board within 30 days after August 5, 1985, and 
to any such proceeding pending on or commenced on or after October 1, 
1981, in which an application for fees and other expenses was timely 
filed and was dismissed for lack of jurisdiction.



Sec. 1023.303  Proceedings covered.

    (a) The Act applies to appeals from decisions of contracting 
officers made pursuant to section 6 of the Contract Disputes Act of 1978 
(41 U.S.C. 605) to the Board as provided in section 8 of that Act (41 
U.S.C. 607).
    (b) If a proceeding includes both matters covered by the Act and 
matters specifically excluded from coverage, any award made will include 
only fees and expenses related to covered issues.



Sec. 1023.304  Eligibility of applicants.

    (a) To be eligible for an award of attorney fees and other expenses 
under the Act, the applicant must be a party

[[Page 905]]

to the covered proceeding for which it seeks an award. The term 
``party'' is defined in 5 U.S.C. 551(3). The applicant must show that it 
meets all conditions of eligibility set out in this subpart.
    (b) The types of eligible applicants are as follows:
    (1) An individual with a net worth of not more than $2 million;
    (2) The sole owner of an unincorporated business who has a net worth 
of not more than $7 million, including both personal and business 
interests, and not more than 500 employees;
    (3) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (4) A cooperative association as defined in 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 
employees; and
    (5) Any other partnership, corporation, association, unit of local 
government, or organization with a net worth of not more than $7 million 
and not more than 500 employees.
    (c) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
applicant filed its appeal under 41 U.S.C. 606.
    (d) An applicant who owns an unincorporated business will be 
considered as an ``individual'' rather than a ``sole owner of an 
unincorporated business'' if the issues on which the applicant prevails 
are related primarily to personal interests rather than to business 
interests.
    (e) The employees of an applicant include all persons who regularly 
perform services for remuneration for the applicant, under the 
applicant's direction and control. Part-time employees shall be included 
on a proportional basis.
    (f) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual, corporation or other entity that directly or indirectly 
controls or owns a majority of the voting shares or other interests of 
the applicant, or any corporation or other entity of which the applicant 
directly or indirectly owns or controls a majority of the voting shares 
or other interest, will be considered an affiliate for purposes of this 
part, unless the Board determines that such treatment would be unjust 
and contrary to the purposes of the Act in light of the actual 
relationship between the affiliated entities. In addition, the Board may 
determine that financial relationships of the applicant, other than 
those described in this paragraph, constitute special circumstances that 
would make an award unjust.
    (g) An applicant that participates in a proceeding primarily on 
behalf of one or more other persons or entities that would be ineligible 
is not itself eligible for an award.



Sec. 1023.305  Standards for awards.

    (a) A prevailing applicant may receive an award for fees and 
expenses incurred in connection with a proceeding or in a significant 
and discrete substantive portion of the proceeding, unless the position 
of the agency over which the applicant has prevailed was substantially 
justified. The position of the agency includes, in addition to the 
position taken by the agency in the covered proceeding, the action or 
failure to act by the agency upon which the covered proceeding is based. 
The burden of proof that an award should not be made to an eligible 
prevailing applicant because the agency's position was substantially 
justified is on the agency counsel.
    (b) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the proceeding or if special circumstances 
make the award sought unjust.



Sec. 1023.306  Allowable fees and expenses.

    (a) Awards will be based on rates customarily charged by persons 
engaged in the business of acting as attorneys or expert witnesses even 
if the services were made available without charge or at a reduced rate 
to the applicant.
    (b) No award for the fee of an attorney under these rules may exceed 
$75 per hour. No award to compensate an expert witness may exceed the 
highest rate at which the respondent agency or agencies pay expert 
witnesses. However, an award may also include the reasonable expenses of 
the attorney or

[[Page 906]]

witness as a separate item, if the attorney or witness ordinarily 
charges clients separately for such expenses.
    (c) In determining the reasonableness of the fee sought for an 
attorney or expert witness, the Board shall consider the following:
    (1) If the attorney or witness is in private practice, his or her 
customary fees for similar services, or, if an employee of the 
applicant, the fully allocated costs of the services;
    (2) The prevailing rate for similar services in the community in 
which the attorney or witness ordinarily performs services;
    (3) The time actually spent in the representation of the applicant;
    (4) The time reasonably spent in light of the difficulty or 
complexity of the issues in the proceeding; and
    (5) Such other factors as may bear on the value of the services 
provided.
    (d) The reasonable cost of any study, analysis, engineering report, 
test, project or similar matter prepared on behalf of a party may be 
awarded, to the extent that the charge for the services does not exceed 
the prevailing rate for similar services, and the study or other matter 
was necessary for preparation of applicant's case.



Sec. 1023.307  [Reserved]



Sec. 1023.308  Awards against other agencies.

    If an applicant is entitled to an award because it prevails over 
another agency of the United States Government that participates in a 
proceeding before the Board and takes a position that is not 
substantially justified, the award or an appropriate portion of the 
award shall be made against that agency.

                  Information Required From Applicants



Sec. 1023.310  Contents of application--overview.

    (a) An application for an award of fees and expenses under the Act 
shall identify the applicant and the proceeding for which an award is 
sought. The application shall show that the applicant has prevailed and 
identify the position of the agency or agencies that the applicant 
alleges was not substantially justified. Unless the applicant is an 
individual, the application shall also state the number of employees of 
the applicant and describe briefly the type and purpose of its 
organization or business.
    (b) The application shall also include a statement that the 
applicant's net worth does not exceed $2 million (if an individual) or 
$7 million (for all other applicants, including their affiliates). The 
applicant shall attach a net worth exhibit that satisfies the 
requirements of section 1023.311. However, an applicant may omit this 
statement and forego the attachment of the net worth exhibit if:
    (1) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in 501(c)(3) of the 
Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a tax-
exempt organization not required to obtain a ruling from the Internal 
Revenue Service on its exempt status, a statement that describes the 
basis for the applicant's belief that it qualifies under such section; 
or
    (2) It states that it is a cooperative association as defined in 
15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
    (c) The application shall state the amount of fees and expenses for 
which an award is sought. The applicant must document fees and expenses 
as required in Sec. 1023.312.
    (d) The application may also include any other matters that the 
applicant wishes the Board to consider in determining whether, and in 
what amount, an award should be made.
    (e) The application shall be signed by the applicant or an 
authorized officer or attorney of the applicant. It shall also contain 
or be accompanied by a written verification under oath or under penalty 
of perjury that the information provided in the application is true and 
correct.



Sec. 1023.311  Net worth exhibit.

    (a) Each applicant, except a qualified tax-exempt organization or 
cooperative association, must provide with its application a detailed 
exhibit showing the net worth of the applicant and any affiliates (as 
defined in Sec. 1023.304(f) of this subpart) when the proceeding was

[[Page 907]]

initiated. The exhibit may be in any form convenient to the applicant 
that provides full disclosure of the applicant's and its affiliates' 
assets and liabilities and is sufficient to determine whether the 
applicant qualifies under the standards in this part. The presiding 
administrative judge may require an applicant to file additional 
information to determine its eligibility for an award.
    (b) Ordinarily, the net worth exhibit will be included in the public 
record of the proceeding. However, an applicant that objects to public 
disclosure of information in any portion of the exhibit may submit that 
portion directly to the presiding administrative judge in a sealed 
envelope labeled ``Confidential Financial Information,'' accompanied by 
a motion for a protective order setting forth the ground therefor. A 
protective order may be granted for good cause shown.



Sec. 1023.312  Documentation of fees and expenses.

    The application shall be accompanied by full documentation of the 
fees and expenses, including the cost of any study, analysis, 
engineering report, test, project or similar matter, for which an award 
is sought. A separate, itemized statement shall be submitted for each 
professional firm or individual whose services are covered by the 
application. The statement should show the hours spent in connection 
with the Contract Disputes Act appeal by each individual, a description 
of the specific services performed, the rates at which each fee has been 
computed, any expenses for which reimbursement is sought, the total 
amount claimed, and the total amount paid or payable by the applicant or 
by any other person or entity for the services provided. The presiding 
administrative judge may require the applicant to provide vouchers, 
receipts, logs, or other substantiation for any fees or expenses claimed 
pursuant to Sec. 1023.306 of this subpart.



Sec. 1023.313  When an application may be filed.

    (a) An application may be filed whenever the applicant has prevailed 
in the proceeding, or, with permission of the Board for good cause 
shown, when the applicant has prevailed in a significant and discrete 
substantive portion of the proceeding, but in no case later than 30 days 
after the Board's final disposition of the proceeding.
    (b) For purposes of paragraph (a) of this section, final disposition 
means the date on which a decision or order disposing of the merits of 
the proceeding or any other complete resolution of the proceeding, such 
as a settlement or voluntary dismissal, becomes final and unappealable.
    (c) If reconsideration of a decision is sought as to which an 
applicant believes it has prevailed, proceedings for the award of fees 
shall be stayed pending final disposition of the underlying controversy. 
When the United States appeals the underlying merits of a covered 
proceeding to a court, no decision on an application for fees and other 
expenses in connection with that proceeding shall be made until a final 
and unreviewable decision is rendered by the court on that appeal or 
until the underlying merits of the case have been finally determined 
pursuant to the appeal.

                 Procedures for Considering Applications



Sec. 1023.320  Filing and service of documents.

    Any application for an award, or other pleading or document relating 
to an application, shall be filed and served on all parties to the 
proceeding in the same manner as other pleadings in the underlying 
proceeding, except as provided in Sec. 1023.311(b) for confidential 
financial information.



Sec. 1023.321  Answer to application.

    (a) Within 30 days after service of an application, counsel 
representing the agency against which an award is sought may file an 
answer to the application. Unless agency counsel requests an extension 
of time for filing or files a statement of intent to negotiate under 
paragraph (b) of this section, failure to file an answer within the 30-
day period may be treated as a consent to the award requested.
    (b) If agency counsel and the applicant believe that the issues in 
the fee

[[Page 908]]

application can be settled, they may jointly file a statement of their 
intent to negotiate a settlement. The filing of this statement shall 
extend the time for filing an answer for an additional 30 days. Further 
extensions may be granted by the presiding administrative judge upon 
request by agency counsel and the applicant.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on in support of agency 
counsel's position. If the answer is based on any alleged facts not 
already in the record of the proceeding, agency counsel shall include 
with the answer either supporting affidavits or a request for further 
proceedings under Sec. 1023.325.



Sec. 1023.322  Reply.

    Within 15 days after service of an answer, the applicant may file a 
reply. If the reply is based on any alleged facts not already in the 
record of the proceeding, the applicant shall include with the reply 
either supporting affidavits or a request for further proceedings under 
Sec. 1023.325.



Sec. 1023.323  Comments by other parties.

    Any party to a proceeding other than the applicant and agency 
counsel may file comments on an application within 30 days after it is 
served or on an answer within 15 days after it is served. A commenting 
party may not participate further in proceedings on the application 
unless the Board determines that the public interest requires such 
participation in order to permit full exploration of matters raised in 
the comments.



Sec. 1023.324  Settlement.

    The applicant and agency counsel may agree on a proposed settlement 
of the award before final action on the application, either in 
connection with a settlement of the underlying proceeding or after the 
underlying proceeding has been concluded, in accordance with the 
agency's standard settlement procedure. If a prevailing party and agency 
counsel agree on a proposed settlement of an award before an application 
has been filed, the application shall be filed with the proposed 
settlement.



Sec. 1023.325  Further proceedings.

    (a) Ordinarily, the determination of an award will be made on the 
basis of the written record. However, on request of either the applicant 
or agency counsel, or, on his or her own initiative, the presiding 
administrative judge may order further proceedings, such as an informal 
conference, oral argument, additional written submissions or, as to 
issues other than substantial justification (such as the applicant's 
eligibility or substantiation of fees and expenses), pertinent discovery 
or an evidentiary hearing. Such further proceedings shall be held only 
when necessary for full and fair resolution of the issues arising from 
the application, and shall be conducted as promptly as possible. Whether 
or not the position of the agency was substantially justified shall be 
determined on the basis of the administrative record as a whole, 
including the contracting officer Appeal File and supplements filed 
pursuant to Rule 4 of the Board's Rules of Practice, 10 CFR part 1023, 
which is made in the covered proceeding for which fees and other 
expenses are sought.
    (b) A request that the presiding administrative judge order further 
proceedings under this section shall specifically identify the 
information sought or the disputed issues and shall explain why the 
additional proceedings are necessary to resolve the issues.



Sec. 1023.326  Board decision.

    The Board shall issue its decision on the application as 
expeditiously as is practicable after completion of proceedings on the 
application. Whenever possible, the decision shall be made by the same 
administrative judge or panel that decided the contract appeal for which 
fees are sought. The decision shall include written findings and 
conclusions on the applicant's eligibility and status as a prevailing 
party, and an explanation of the reasons for any difference between the 
amount requested and the amount awarded. The decision shall also 
include, if at issue, findings on whether the agency's position was 
substantially justified, whether the applicant unduly protracted the 
proceedings, or whether special circumstances make the award unjust. If

[[Page 909]]

the applicant has sought an award against more than one agency, the 
decision shall allocate responsibility for payment of any award made 
among the agencies, and shall explain the reasons for the allocation 
made.



Sec. 1023.327  Reconsideration.

    Either party may seek reconsideration of the decision on the fee 
application in accordance with 10 CFR 1023.120, Rule 27.

[57 FR 53542, Nov. 12, 1992, as amended at 62 FR 24808, May 7, 1997]



Sec. 1023.328  Judicial review.

    Judicial review of a final Board decision on an application for an 
award may be sought as provided in 5 U.S.C. 504(c)(2).



Sec. 1023.329  Payment of award.

    An applicant seeking payment of an award shall submit to agency 
counsel a copy of the Board's final decision granting the award, 
accompanied by a certification that the applicant will not seek review 
of the decision in the United States courts. Agency counsel will forward 
the submission to the appropriate disbursing official. The agency will 
pay the amount awarded to the applicant within 60 days.



PART 1039_UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS--Table of Contents



    Authority: Section 213, Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1894 
(42 U.S.C. 4601) as amended by the Surface Transportation and Uniform 
Relocation Assistance Act of 1987, Title IV of Pub. L. 100-17, 101 Stat. 
246-256 (42 U.S.C. 4601 note).



Sec. 1039.1  Uniform relocation assistance and real property acquisition.

    Regulations and procedures for complying with the Uniform Relocation 
Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 
91-646, 84 Stat. 1894, 42 U.S.C. 4601), as amended by the Surface 
Transportation and Uniform Relocation Assistance Act of 1987 (Title IV 
of Pub. L. 100-17, 101 Stat. 246-255, 42 U.S.C. 4601 note) are set forth 
in 49 CFR part 24.

[52 FR 48017, Dec. 17, 1987; 54 FR 8912, 8913, Mar. 2, 1989]



PART 1040_NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OR ACTIVITIES--Table of Contents



                      Subpart A_General Provisions

Sec.
1040.1 Purpose.
1040.2 Application.
1040.3 Definitions--General.
1040.4 Assurances required and preaward review.
1040.5 Designation of responsible employee.
1040.6 Notice.
1040.7 Remedial and affirmative action and self-evaluation.
1040.8 Effect of employment opportunity.

 Subpart B_Title VI of the Civil Rights Act of 1964; Section 16 of the 
 Federal Energy Administration Act of 1974, as Amended; and Section 401 
                of the Energy Reorganization Act of 1974

1040.11 Purpose and application.
1040.12 Definitions.
1040.13 Discrimination prohibited.
1040.14 Covered employment.

Subpart C [Reserved]

Subpart D_Nondiscrimination on the Basis of Handicap_Section 504 of the 
                 Rehabilitation Act of 1973, as Amended

                           General Provisions

1040.61 Purpose and application.
1040.62 Definitions.
1040.63 Discrimination prohibited.
1040.64 Effect of State or local law or other requirements and effect of 
          employment opportunities.
1040.65 Procedures.

                          Employment Practices

1040.66 Discrimination prohibited.
1040.67 Reasonable accommodation.
1040.68 Employment criteria.
1040.69 Preemployment inquiries.

                              Accessibility

1040.71 Discrimination prohibited.
1040.72 Existing facilities.
1040.73 New construction.

[[Page 910]]

1040.74 Accessibility in historic properties.

 Subpart E_Nondiscrimination on the Basis of Age_Age Discrimination Act 
                           of 1975, as Amended

                           General Provisions

1040.81 Purpose.
1040.82 Application.
1040.83 Definitions.

              Standards for Determining Age Discrimination

1040.84 Rules against age discrimination.
1040.85 Definitions of ``Normal Operation'' and ``Statutory Objective''.
1040.86 Exceptions to the rules against age discrimination. Normal 
          operation or statutory objective of any program or activity.
1040.87 Exceptions to the rules against age discrimination. Reasonable 
          factors other than age.
1040.88 Remedial and affirmative action by recipients.
1040.89 Burden of proof.

                   Responsibilities of DOE Recipients

1040.89-1 General responsibilities.
1040.89-2 Notice to subrecipients.
1040.89-3 Information requirements.

         Investigation, Conciliation and Enforcement Procedures

1040.89-4 Compliance reviews.
1040.89-5 Complaints.
1040.89-6 Mediation.
1040.89-7 Investigation.
1040.89-8 Prohibition against intimidation or retaliation.
1040.89-9 Compliance procedure.
1040.89-10 Hearings, decisions, post-termination proceedings.
1040.89-11 Remedial action by recipients.
1040.89-12 Alternate funds disbursal procedure.
1040.89-13 Exhaustion of administrative remedies.

Appendix A to Subpart E to Part 1040--DOE Federally Assisted Programs 
          Containing Age Distinctions

Subpart F--Nondiscrimination Under Title VIII of the Civil Rights Act of 
1968, as Amended [Reserved]

                      Subpart G_Program Monitoring

1040.101 Compliance reviews.
1040.102 Compliance information.
1040.103 [Reserved]
1040.104 Complaint investigation.

                          Subpart H_Enforcement

                      Means of Effecting Compliance

1040.111 Means available.
1040.112 Noncompliance with assurances.
1040.113 Deferral.
1040.114 Termination of or refusal to grant or to continue Federal 
          financial assistance.
1040.115 Other means authorized by law.

                         Opportunity for Hearing

1040.121 Notice of opportunity for hearing.
1040.122 Request for hearing or review.
1040.123 Consolidated or joint hearings.
1040.124 Responsibility of the Federal Energy Regulatory Commission.

                             Judicial Review

1040.131 Judicial review.

Appendix A to Part 1040--Federal Financial Assistance of the Department 
          of Energy to Which This Part Applies

    Authority: 20 U.S.C. 1681-1686; 29 U.S.C. 794; 42 U.S.C. 2000d to 
2000d-7, 3601-3631, 5891, 6101-6107, 7101 et seq.

    Source: 45 FR 40515, June 13, 1980, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 1040.1  Purpose.

    (a) The purpose of this part is to implement Title VI of the Civil 
Rights Act of 1964, Pub. L. 88-352; section 16 of the Federal Energy 
Administration Act of 1974, as amended, Pub. L. 93-275; section 401 of 
the Energy Reorganization Act of 1974, Pub. L. 93-438; Title IX of the 
Education Amendments of 1972, as amended, Pub. L. 92-318, Pub. L. 93-568 
and Pub. L. 94-482; section 504 of the Rehabilitation Act of 1973, as 
amended, Pub. L. 93-112; the Age Discrimination Act of 1975, Pub. L. 94-
135; Title VIII of the Civil Rights Act of 1968, Pub. L. 90-284; and 
civil rights provisions of statutes administered pursuant to authority 
under the DOE Organization Act, Pub. L. 95-91, so no person shall, on 
the ground of race, color, national origin, sex (when covered by section 
16 and section 401), handicap, or age, be excluded from participation 
in, be denied the benefits of, be subjected to discrimination under, or 
be denied employment, where a primary purpose of the Federal financial 
assistance is to

[[Page 911]]

provide employment or when the delivery of services is affected by the 
recipient's employment practices (under section 504, all grantee and 
subgrantee employment practices are covered regardless of the purpose of 
the program), in connection with any program or activity receiving 
Federal financial assistance from the Department of Energy (after this 
referred to as DOE or the Department). Employment coverage may be 
broader in scope when section 16, section 401, or Title IX are 
applicable.
    (b) DOE regulations on enforcement of nondiscrimination on the basis 
of handicap in programs or activities conducted by DOE are in part 1041 
of this chapter.
    (c) DOE regulations on enforcement of nondiscrimination on the basis 
of sex, under Title IX of the Education Act Amendments of 1972, as 
amended, are in part 1042 of this chapter.

[45 FR 40515, June 13, 1980, as amended at 66 FR 4630, Jan. 18, 2001; 68 
FR 51346, Aug. 26, 2003]



Sec. 1040.2  Application.

    (a) The application of this part is to any program or activity for 
which Federal financial assistance is authorized under laws administered 
by DOE. Types of Federal financial assistance to which this part applies 
are listed in Appendix A of this part. appendix A is to be revised from 
time to time by notice published in the Federal Register. This part 
applies to money paid, property transferred, or other Federal financial 
assistance including cooperative agreements extended, by way of grant, 
loan, or contract by DOE, or grants awarded in the performance of a 
contract with DOE by an authorized contractor or subcontractor, the 
terms of which require compliance with this part. If any statutes 
implemented by this part are otherwise applicable, the failure to list a 
type of Federal financial assistance in appendix A does not mean that a 
program or activity is not covered by this part.
    (b) This part does not apply to:
    (1) Contracts of insurance or guaranty;
    (2) Employment practices under any program or activity except as 
provided in Sec. Sec. 1040.12, 1040.14, 1040.41, 1040.47 and 1040.66; 
or
    (3) Procurement contracts under title 41 CFR part 1 or part 9.

[45 FR 40515, June 13, 1980, as amended at 68 FR 51346, Aug. 26, 2003]



Sec. 1040.3  Definitions--General.

    (a) Academic institution includes any school, academy, college, 
university, institute, or other association, organization, or agency 
conducting or administering any aid, benefit, service, project, or 
facility designed to educate or train individuals.
    (b) Administrative law judge means a person appointed by the 
reviewing authority to preside over a hearing held under this part.
    (c) Agency or Federal agency refers to any Federal department or 
agency which extends Federal financial assistance.
    (d) Applicant for assistance means one who submits an application, 
request, or plan required to be approved by a Department official or by 
a primary recipient as a condition to becoming eligible for Federal 
financial assistance.
    (e) Assistant Attorney General refers to the Assistant Attorney 
General, Civil Rights Division, United States Department of Justice.
    (f) Director, FAPD refers to the Director, Federally Assisted 
Programs Division, Office of Equal Opportunity, DOE.
    (g) Compliance Review means an analysis of a recipient's selected 
employment practices or delivery of services for adherence to provisions 
of any of the subparts of this part.
    (h) Department means the Department of Energy (DOE).
    (i) FERC means the Federal Energy Regulatory Commission, DOE.
    (j) Where designation of persons by race, color, or national origin 
is required, the following designations are to be used:
    (1) Black, not of Hispanic origin. A person having origins in any of 
the black racial groups of Africa.
    (2) Hispanic. A person of Mexican, Puerto Rican, Cuban, Central or 
South American or other Spanish Culture or origin, regardless of race.
    (3) Asian or Pacific Islander. A person having origins in any of the 
original peoples of the Far East, Southeast

[[Page 912]]

Asia, the Indian Subcontinent, or the Pacific Islands. This includes, 
for example, China, India, Japan, Korea, the Philippine Islands, 
Hawaiian Islands, and Samoa.
    (4) American Indian or Alaskan Native. A person having origins in 
any of the original peoples of North America and who maintains cultural 
identification through tribal affiliation or community recognition.
    (5) White, not of Hispanic origin. A person having origins in any of 
the original peoples of Europe, North Africa, or the Middle East.

Additional subcategories based on national origin or primary language 
spoken may be used where appropriate on either a national or a regional 
basis. Paragraphs (j) (1) through (5), inclusive, set forth in this 
section are in conformity with Directive No. 15 of the Office of Federal 
Statistical Policy and Standards. To the extent that these designations 
are modified, paragraphs (j) (1) through (5), inclusive, set forth in 
this section are to be interpreted to conform with those modifications.
    (k) Director means the Director, Office of Equal Opportunity, DOE.
    (l) Disposition means any treatment, handling, decision, sentencing, 
confinement, or other proscription of conduct.
    (m) Employment practices, see individual section headings.
    (n) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, or other real or personal 
property or interest in such property, and the provision of facilities 
includes the construction, expansion, renovation, remodeling, 
alteration, or acquisition of facilities.
    (o) Federal financial assistance includes:
    (1) Grants and loans of Federal funds,
    (2) The grant or donation of Federal property and interest in 
property,
    (3) The detail of or provision of services by Federal personnel,
    (4) The sale and lease of, and the permission to use (on other than 
a casual or transient basis), Federal property or any interest in such 
property, the furnishing of services without consideration or at a 
nominal consideration, or at a consideration which is reduced for the 
purpose of assisting the recipient, or in recognition of the public 
interest to be served by the sale, lease, or furnishing of services to 
the recipient, and
    (5) Any Federal agreement, arrangement, or other contract which has 
as one of its purposes the provision of assistance.
    (p) General Counsel mean the Office of the General Counsel 
Department of Energy.
    (q) Government organization means the political subdivision for a 
prescribed geographical area.
    (r) Investigations include fact-finding efforts and attempts to 
secure voluntary resolution of complaints.
    (s) Noncompliance means the failure of a recipient or subrecipient 
to comply with any subpart of this part.
    (t) Primary recipient means any person, group, organization, state, 
or local unit of government which is authorized or required to extend 
Federal financial assistance to another recipient.
    (u) Program or activity and program mean all of the operations of 
any entity described in paragraphs (u)(1) through (4) of this section, 
any part of which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or

[[Page 913]]

    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (u)(1), (2), or (3) of this section.
    (v) Responsible Departmental or DOE Official means the official of 
the Department of Energy that has been assigned the principal 
responsibility for administration of the law extending Federal financial 
assistance.
    (w) Reviewing authority means the component of the Department 
delegated authority by the Secretary to appoint, and to review the 
decisions of, administrative law judges in cases arising under this 
part.
    (x) Secretary means the Secretary of the Department of Energy.
    (y) The term United States includes the states of the United States, 
the District of Columbia, the Commonwealth of Puerto Rico, the Virgin 
Island, American Samoa, Guam, Wake Island, the Canal Zone, and all other 
territories and possessions of the United States, and the term State 
includes any one of the foregoing.
    (z) Headquarters means DOE offices located in Washington, D.C.

[45 FR 40515, June 13, 1980, as amended at 68 FR 51346, Aug. 26, 2003]



Sec. 1040.4  Assurances required and preaward review.

    (a) Assurances. An applicant for Federal financial assistance to 
which this part applies shall submit an assurance on a form specified by 
the Director that the program or activity will be operated in compliance 
with applicable subparts. Such assurances are to include provisions 
which give the United States a right to seek judicial enforcement.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended in the form of real property or to provide real 
property or structure on the property, the assurance obligates the 
recipient or, in the case of a subsequent transfer, the transferee, for 
the period during which the real property or structures are used for the 
purpose for which Federal financial assistance is extended or for 
another purpose involving the provision of similar services or benefits.
    (2) In the case of Federal financial assistance extended to provide 
personal property, the assurance obligates the recipient for the period 
during which it retains ownership or possession of the property.
    (3) In all other cases, the assurance obligates the recipient to all 
terms and conditions contained in the certificate of assurance for the 
period during which Federal financial assistance is extended.
    (c) Covenants. Where Federal financial assistance is provided in the 
form of real property, structures, improvements on or interests in the 
property, or in the case where Federal financial assistance is provided 
in the form of a transfer of real property or interest in the property 
from the Department:
    (1) The instrument effecting or recording this transfer is to 
contain a covenant running with the land to assure nondiscrimination for 
the period during which the real property is used for a purpose for 
which the Federal financial assistance is extended or for another 
purpose involving the provision of similar services or benefits; or
    (2) Where no transfer of property is involved or imposed with 
Federal financial assistance, the recipient shall agree to include the 
covenant described in paragraph (c)(1) of this section in the instrument 
effecting or recording any subsequent transfer of the property.
    (3) Where Federal financial assistance is provided in the form of 
real property or interest in the property from the Department, the 
covenant is to also include a condition coupled with a right to be 
reserved by the Department to revert title to the property in the event 
of a material breach of the covenant. If a transferee of real property 
manages to mortgage or otherwise encumber the real property as security 
for financing construction of new or improvement of existing facilities 
on the property for the purpose for which the property was transferred, 
the Director may, upon request of the transferee and, if necessary to 
accomplish such financing and upon such

[[Page 914]]

conditions, as he or she deems appropriate, agree to forbear the 
exercise of the right to revert title for so long as the lien of the 
mortgage or other encumbrance remains effective.
    (d) Assurances from government agencies. In the case of any 
application from any department, agency or office of any State or local 
government for Federal financial assistance for any specified purpose, 
the assurance required by this section is to extend to any other 
department, agency, or office of the same governmental unit.
    (e) Assurance from academic and other institutions. (1) In the case 
of any application for Federal financial assistance for any purpose to 
an academic institution, the assurance required by this section is to 
extend to admission practices and to all other practices relating to the 
treatment of students.
    (2) The assurance required with respect to an academic institution, 
detention or correctional facility, or any other institution or 
facility, insofar as the assurance relates to the institution's 
practices with respect to admission or other treatment of individuals as 
students, patients, wards, inmates, persons subject to control, or 
clients of the institution or facility or to the opportunity to 
participate in the provision of services, disposition, treatment, or 
benefits to such individuals, shall be applicable to the entire 
institution or facility.
    (f) Continuing Federal financial assistance. Any State or State 
agency applying for continuing Federal financial assistance subject to 
this part shall, as a condition for the extension of such assistance:
    (1) Provide a statement that the program or activity is (or, in the 
case of a new program or activity, will be) conducted in compliance with 
applicable subparts; and
    (2) Provide for such methods of administration as are found by the 
Director or a designee to give reasonable assurance that the primary 
recipient and all other recipients of Federal financial assistance under 
such program will comply with this part.
    (g) Assistance for construction. Where the assistance is sought for 
the construction of a facility, or a part of a facility, the assurance 
is to extend to the entire facility. If a facility to be constructed is 
part of a larger system, the assurance is to extend to the larger 
system.
    (h) Pre-award review. Prior to and as a condition of approval, all 
applications for Federal financial assistance are to be reviewed by the 
appropriate Civil Rights Department official who is to make a written 
determination of the applicant's compliance with this part. The basis 
for such a determination is to be the submission of the assurance of 
compliance as specified in paragraph (a) and a review of data to be 
submitted by the applicant as specified by the Director. For purposes of 
this subsection, the appropriate departmental official at headquarters 
level is the Director, FAPD, Office of Equal Opportunity, and at the 
regional level it is to be the Civil Rights Officer delegated by the 
Director as having review authority for determining compliance with 
requirements of this part. Where a determination of compliance cannot be 
made from this data, DOE may require the applicant to submit necessary 
additional information and may take other steps necessary to make the 
determination of compliance. Such other steps may include, for example, 
communicating with local government officials or protected class 
organizations and field reviews. Any agreement to achieve voluntary 
compliance as a result of a preaward review shall be in writing. In the 
case of Title VI, the Director will notify the Assistant Attorney 
General of instances of probable noncompliance determined as the result 
of application reviews. The opportunity for a hearing as provided under 
Sec. 1040.113 is applicable to this section.

[45 FR 40515, June 13, 1980, as amended at 68 FR 51346, Aug. 26, 2003]



Sec. 1040.5  Designation of responsible employee.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to carry outs 
its responsibilities under this part. The recipient shall publish the 
name, office address and telephone number of the employee or employees 
appointed under this paragraph.
    (b) A recipient shall display prominently, in reasonable numbers and

[[Page 915]]

places, posters which state that the recipient operates a program or 
activity subject to the nondiscrimination provisions of applicable 
subparts, summarize those requirements, note availability of information 
regarding this part from the recipient and DOE, and explain briefly the 
procedures for filing a complaint. Information on requirements of this 
part, complaint procedures and the rights of beneficiaries are to be 
included in handbooks, manuals, pamphlets, and other materials which are 
ordinarily distributed to the public to describe the federally assisted 
programs or activities and the requirements for participation by 
recipients and beneficiaries. To the extent that recipients are required 
by law or regulation to publish or broadcast information in the news 
media, the recipient shall insure that such publications and broadcasts 
state that the program or activity in question is an equal opportunity 
program or activity or otherwise indicate that discrimination in the 
program is prohibited by Federal law.
    (c) Where a significant number or proportion of the population 
eligible to be served or likely to be directly affected by a federally 
assisted program or activity requires service or information in a 
language other than English in order to be informed of or to participate 
in the program, the recipient shall take reasonable steps, considering 
the scope of the program and size and concentration of such population, 
to provide information in appropriate languages (including braille) to 
such persons. This requirement applies to written material of the type 
which is ordinarily distributed to the public. The Department may 
require a recipient to take additional steps to carry out the intent of 
this subsection.

[45 FR 40515, June 13, 1980, as amended at 68 FR 51346, Aug. 26, 2003]



Sec. 1040.6  Notice.

    (a) A recipient shall take appropriate, initial and continuing steps 
to notify participants, beneficiaries, applicants and employees, 
including those with impaired vision or hearing, and unions or 
professional organizations holding collective bargaining or professional 
agreements with the recipient that it does not discriminate on the basis 
of race, color, national origin, sex (where sec. 16 or sec. 401 apply), 
handicap, or age. The notification is to state, where appropriate, that 
the recipient does not discriminate in admission or access to, and 
treatment of, or employment in its programs or activities and inform 
employees of their rights under this part. The notification is to 
include an identification of the responsible employee designated under 
Sec. 1040.5. A recipient shall make the initial notification required 
by this paragraph within 90 days of the effective date of this part. 
Methods of initial and continuing notification may include the posting 
of notices, publication in newspapers and magazines, placement of 
notices in recipients' publications, and distribution of memoranda or 
other written communications.
    (b) If a recipient publishes or uses recruitment materials or 
publications containing general information that it makes available to 
participants, beneficiaries, applicants, or employees, it shall include 
in those materials or publications a statement of the policy described 
in paragraph (a) of this section. A recipient may meet the requirement 
of this paragraph either by including appropriate inserts in existing 
materials and publications or by revising and reprinting the materials 
and publications.
    (c) The provisions of Sec. 1040.5(c) to provide information in 
appropriate languages (including braille), apply to this section.

[45 FR 40515, June 13, 1980, as amended at 68 FR 51346, Aug. 26, 2003]



Sec. 1040.7  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the Director finds that a recipient has 
discriminated against persons on the basis of race, color, national 
origin, sex, handicap, or age in any program or activity receiving 
Federal financial assistance, the recipient shall take remedial action 
as the Director considers necessary to overcome the effects of the 
discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of race, color, national origin, sex, 
handicap, or age in any program or

[[Page 916]]

activity, a recipient may continue to encourage participation by all 
persons regardless of race, color, national origin, sex, handicap, or 
age.
    (c) Self-evaluation. Each recipient shall, within one year of the 
effective date of this part:
    (1) Whenever possible, evaluate, with the assistance of interested 
persons, including handicapped persons or organizations representing 
handicapped persons, its current policies and practices and the effects 
thereof that do not or may not meet the requirements of this part;
    (2) Modify any policies and practices which do not or may not meet 
the requirements of this part; and
    (3) Take appropriate remedial steps to eliminate the effects of 
discrimination which resulted or may have resulted from adherence to 
these questionable policies and practices.
    (d) Availability of self-evaluation and related materials. Recipient 
shall maintain on file, for at least three years following its 
completion, the evaluation required under paragraph (c) of this section, 
and shall provide to the Director, upon request, a description of any 
modifications made under paragraph (c)(2) of this section and of any 
remedial steps taken under paragraph (c)(3) of this section.

[45 FR 40515, June 13, 1980, as amended at 68 FR 51346, Aug. 26, 2003]



Sec. 1040.8  Effect of employment opportunity.

    Due to limited opportunities in the past, certain protected groups 
may be underrepresented in some occupations or professions. A 
recipient's obligation to comply with this part is not alleviated by use 
of statistical information which reflects limited opportunities in those 
occupations or professions.



 Subpart B_Title VI of the Civil Rights Act of 1964; Section 16 of the 
 Federal Energy Administration Act of 1974, as Amended; and Section 401 
                of the Energy Reorganization Act of 1974



Sec. 1040.11  Purpose and application.

    (a) The purpose of this subpart is to implement title VI of the 
Civil Rights Act of 1964 (title VI) and the pertinent regulations of DOE 
so that no person in the United States shall, on the ground of race, 
color, or national origin, be excluded from participation in, be denied 
the benefits of, or otherwise be subjected to discrimination under any 
program or activity receiving Federal financial assistance of the type 
subject to title VI. This subpart also implements section 16 of the 
Federal Energy Administration Act of 1974, as amended (section 16) and 
section 401 of the Energy Reorganization of 1974 (section 401) so that 
no person shall be excluded on the ground of sex from participation in, 
be denied the benefits of, or be subjected to discrimination under any 
program or activity receiving Federal financial assistance subject to 
section 16 or 401. The coverage of employment practices is explained in 
Sec. 1040.14.
    (b) The application of this subpart is to delivery of services by 
and the covered employment practices of recipients and subrecipients 
administering or participating in any program or activity receiving 
Federal financial assistance under laws administered by DOE covered by 
title VI. In addition to services and employment practices, this subpart 
applies to any activities of recipients or subrecipients receiving 
Federal financial assistance subject to section 16 and section 401.

[45 FR 40515, June 13, 1980, as amended at 68 FR 51347, Aug. 26, 2003]



Sec. 1040.12  Definitions.

    (a) Covered employment means employment practices covered by title 
VI, section 16 and section 401.
    (1) Under title VI, such practices are those which:
    (i) Exist in a program where a primary objective of the Federal 
financial

[[Page 917]]

assistance is to provide employment; or
    (ii) Cause discrimination on the basis of race, color, or national 
origin with respect to beneficiaries or potential beneficiaries of the 
assisted program.
    (2) Under section 16 and section 401, such practices include, but 
are not limited to, employment practices covered by title VI when 
alleging discrimination on the basis of sex. All employment practices of 
a recipient or subrecipient of Federal financial assistance subject to 
section 16 and section 401 are covered employment practices.
    (b) Title VI refers to title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d et seq. which prohibits discrimination on the ground of 
race, color or national origin in programs or activities receiving 
Federal financial assistance. The definitions set forth in Sec. 1040.3 
of subpart A to the extent not inconsistent with this subpart, are 
applicable to and incorporated into this subpart.

[45 FR 40515, June 13, 1980, as amended at 68 FR 51347, Aug. 26, 2003]



Sec. 1040.13  Discrimination prohibited.

    (a) General. No person in the United States shall be excluded on the 
ground of race, color, national origin, or sex (when covered by section 
16 or section 401), from participation in, be denied the benefits of, or 
be otherwise subjected to discrimination under any program to which this 
subpart applies.
    (b) Specific discriminatory action prohibited. A recipient to which 
this subpart applies may not, directly or through contractual or other 
arrangements, on the ground of race, color, national origin or sex (when 
covered by section 16 or section 401):
    (1) Deny any individual any disposition, service, financial aid, or 
benefit provided under the program;
    (2) Provide any disposition, service, financial aid, or benefit to 
an individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (3) Subject an individual to segregation or separate treatment in 
any matter related to his/her receipt of any disposition, service, 
financial aid, or benefit under the program;
    (4) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any disposition, 
service, financial aid, or benefit under the program;
    (5) Treat an individual differently from others in determining 
whether such individual satisfies any admission, enrollment, quota, 
eligibility, membership, or other requirement or condition which 
individuals must meet in order to be provided any disposition, service, 
financial aid, function or benefit provided under the program;
    (6) Deny an individual an opportunity to participate in the program 
through the provision of services or otherwise afford such individual an 
opportunity to do so which is different from that afforded others under 
the program (including the opportunity to participate in the program as 
an employee but only to the extent set forth in Sec. 1040.14 of this 
subpart); or
    (7) Deny a person the opportunity to participate as a member of a 
planning or advisory body which is an integral part of the program.
    (c) A recipient, in determining the type of Federal financial 
assistance (i.e., disposition, services, financial aid, benefits, or 
facilities) which will be provided under any program, or the class of 
individuals to whom, or the situations in which the assistance will be 
provided, may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration which have 
the effect of subjecting individuals to discrimination because of their 
race, color, national origin, or sex (when covered by section 16 and 
section 401) or have the effect of defeating or substantially impairing 
accomplishment of the objectives of the program with respect to 
individuals of a particular race, color, national origin, or sex (when 
covered by section 16 or section 401).
    (d) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding individuals from, denying them the benefits of, or subjecting 
them to discrimination because of race, color, national origin, or sex 
(when covered by section 16 or 401) or with the purpose or effect of 
defeating or substantially impairing the accomplishment of the 
objectives of title VI or this subpart.

[[Page 918]]

    (e) For the purpose of this section, the disposition, services, 
financial aid, or benefits provided under a program receiving Federal 
financial assistance include all portions of the recipient's program or 
activity, including facilities, equipment, or property provided with the 
aid of Federal financial assistance.
    (f) The enumeration of specific forms of prohibited discrimination 
in this paragraph and in Sec. 1040.14 of this subpart does not limit 
the generality of the prohibition in paragraph (a) of this section.
    (g) Exemptions. Exclusion from benefits for protected groups. An 
individual is not to be considered subjected to discrimination by reason 
of his/her exclusion from benefits limited to individuals of a 
particular race, color, national origin or sex different from his/hers 
when the exclusion is provided for or required by Federal law, for 
example, Federal financial assistance provided exclusively to serve on-
reservation Indians.

[45 FR 40515, June 13, 1980, as amended at 68 FR 51347, Aug. 26, 2003]



Sec. 1040.14  Covered employment.

    (a) Employment practices. (1) Whenever a primary objective of the 
Federal financial assistance to a program to which this subpart applies 
is to provide employment, a recipient of the assistance may not 
(directly or through contractual or other arrangements) subject any 
individual to discrimination on the grounds of race, color, national 
origin, or sex (when covered by section 16 and section 401) in its 
employment practices under the program (including recruitment or 
recruitment advertising, employment, layoff, or termination, upgrading, 
demotion or transfer, training, participation in upward mobility 
projects, rates of pay or other forms of compensation, and use of 
facilities). This prohibition also applies to programs where the primary 
objective of the Federal financial assistance is:
    (i) To assist individuals through employment to meet expenses 
incident to the commencement or continuation of their education or 
training;
    (ii) To provide work experience which contributes to the education 
or training of the individuals involved;
    (iii) To reduce the unemployment of individuals or to help them 
through employment to meet subsistence needs; or
    (iv) To provide employment to individuals who, because of handicaps, 
cannot be readily absorbed in the competitive labor market. The 
requirements applicable to construction under any such program are to be 
those specified in or under part III of Executive Order 11246, as 
amended, or any Executive Order which supersedes it.
    (2) In regard to Federal financial assistance which does not have 
provision of employment as a primary objective, the provisions of 
paragraph (a)(1) of this section apply to the employment practices of 
the recipient if discrimination on the ground of race, color, national 
origin, or sex (when covered by section 16 or section 401) in such 
employment practices tends to exclude persons from participation in, 
deny them the benefits of, or subject them to discrimination under the 
program receiving Federal financial assistance. In any such case, the 
provisions of paragraph (a)(1) of this section apply to the extent 
necessary to assure equality of opportunity to and nondiscriminatory 
treatment of beneficiaries.
    (3) Paragraph (a)(1) also applies to covered employment as defined 
in Sec. 1040.12(a)(2).
    (b) Enforcement of title VI compliance with respect to covered 
employment practices is not to be superseded by State or local merit 
systems relating to the employment practices of the same recipient.

[45 FR 40515, June 13, 1980, as amended at 68 FR 51347, Aug. 26, 2003]

Subpart C [Reserved]

[[Page 919]]



Subpart D_Nondiscrimination on the Basis of Handicap_Section 504 of the 
                 Rehabilitation Act of 1973, as Amended

                           General Provisions



Sec. 1040.61  Purpose and application.

    (a) The purpose of this subpart is to implement sec. 504 of the 
Rehabilitation Act of 1973, which is designed to eliminate 
discrimination on the basis of handicap in any program or activity 
receiving Federal financial assistance.
    (b) This subpart applies to each recipient or subrecipient of 
Federal financial assistance from DOE and to each program or activity 
that receives assistance.

[45 FR 40515, June 13, 1980, as amended at 68 FR 51347, Aug. 26, 2003]



Sec. 1040.62  Definitions.

    (a) Executive Order means Executive Order 11914, titled 
``Nondiscrimination With Respect to the Handicapped in Federally 
Assisted Programs'' issued on April 28, 1976.
    (b) Section 504 means sec. 504 of the Rehabilitation Act of 1973, 
Pub. L. 93-112, as amended by the Rehabilitation Act Amendments of 1974, 
Pub. L. 93-516, 29 U.S.C. 794.
    (c) Handicapped person means any person who has a physical or mental 
impairment which substantially limits one or more major life activities, 
has a record of such impairment, or is regarded as having such an 
impairment.
    (d) As used in paragraph (c) of this section, the phrase:
    (1) Physical or mental impairment means--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive, digestive, 
genito-urinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness and drug addiction and 
alcoholism, when current use of drugs and/or alcohol is not detrimental 
to or interferes with the employee's performance, nor constitutes a 
direct threat to property or safety of others.
    (2) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means:
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but that is treated by a recipient as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraphs (d)(1) (i) 
and (ii) of this section, but is treated by a recipient as having such 
an impairment.
    (e) Qualified handicapped person means:
    (1) With respect to employment, a handicapped person who, with 
reasonable accommodation, can perform the essential functions of the job 
in question;
    (2) With respect to public preschool, elementary, secondary, or 
adult education services, a handicapped person:
    (i) Of an age during which non-handicapped persons are provided such 
services;
    (ii) Of any age during which it is mandatory under state law to 
provide such services to handicapped persons; or
    (iii) To whom a state is required to provide a free appropriate 
public education under sec. 612 of the Education

[[Page 920]]

for All Handicapped Children Act of 1975, Pub. L. 94-142.
    (3) With respect to postsecondary and vocational education services, 
a handicapped person who meets the academic and technical standards 
requisite to admission or participation in the recipient's education 
program or activity; and
    (4) With respect to other services, a handicapped person who meets 
the essential eligibility requirements for the receipt of such services.
    (f) Handicap means condition or characteristic that renders a person 
a handicapped person as defined in paragraph (c) of this section.
    (g) Historic properties means those architecturally, historically or 
culturally significant properties listed in or eligible for listing in 
the National Register of Historic Places or such properties designated 
under a statute of the appropriate State or local governmental body.
    (h) Building alterations means those changes to the existing 
conditions and equipment of a building which do not involve any 
structural changes, but which typically improve and upgrade a building, 
such as alterations to stairways, doors, toilets, elevators, and site 
improvements.
    (i) Structural changes means those changes which alter the structure 
of a historic building including, but not limited to, its bearing walls 
and all types of post and beam systems in wood, steel, iron or concrete.

The definitions set forth in Sec. 1040.3 of this part, to the extent 
not inconsistent with this subpart, are made applicable to and 
incorporated into this subpart.



Sec. 1040.63  Discrimination prohibited.

    (a) General. No qualified handicapped person shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity that receives Federal financial assistance from DOE.
    (b) Discriminatory actions prohibited. (1) A recipient, in providing 
any aid, benefit, or service, may not directly or through contractual, 
licensing, or other arrangements, on the basis of handicap--
    (i) Deny a qualified person the opportunity to participate in or 
benefit from the aid, benefit or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless the action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Aid or perpetuate discrimination against a qualified handicapped 
person by providing significant assistance to an agency, organization, 
or person that discriminates on the basis of handicap in providing any 
aid, benefit, or services to beneficiaries of the recipient's program or 
activity;
    (vi) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vii) Otherwise limit a qualified handicapped person in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit or service.
    (2) For purposes of this part, aids, benefits, and services, to be 
equally effective, are not required to produce the identical result or 
level of achievement for handicapped and nonhandicapped persons, but 
must afford handicapped persons equal opportunity to obtain the same 
result, to gain the same benefit, or to reach the same level of 
achievement in the most integrated setting appropriate to the person's 
needs.
    (3) Despite the existence of permissible separate or different aid, 
benefits, or services, a recipient may not deny a qualified handicapped 
person the opportunity to participate in aid, benefits, or services that 
are not separate or different.

[[Page 921]]

    (4) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration that:
    (i) Have the effect of subjecting qualified handicapped persons to 
discrimination on the basis of handicap;
    (ii) Have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the recipient's program or 
activity with respect to handicapped persons; or
    (iii) Perpetuate the discrimination of another recipient if both 
recipients are subject to common administrative control or are agencies 
of the same state.
    (5) In determining the site of a facility, an applicant for 
assistance or a recipient may not make selections that--
    (i) Have the effect of excluding handicapped persons from, denying 
them the benefits of, or otherwise subjecting them to discrimination 
under any program or activity that receives Federal financial assistance 
from DOE; or
    (ii) Have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives of the program or 
activity with respect to handicapped persons.
    (6) As used in this section, the aid, benefit, or service provided 
under a program or activity receiving from Federal financial assistance 
includes any aid, benefit, or service provided in or through a facility 
that has been constructed, expanded, altered, leased or rented, or 
otherwise acquired, in whole or in part, with Federal financial 
assistance.
    (c) Aid, benefits, or services limited by Federal law. The exclusion 
of non-handicapped persons from aid, benefits, or services limited by 
Federal statute or Executive order to handicapped persons or the 
exclusion of a specific class of handicapped persons from aid, benefits, 
or services limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) Recipients shall take appropriate steps to ensure that 
communications with their applicants, employees and handicapped persons 
participating in federally assisted programs or activities or receiving 
aids, benefits or services, are available to persons with impaired 
vision and hearing.
    (e) The enumeration of specific forms of prohibited discrimination 
in this paragraph does not limit the generality of the prohibition in 
paragraph (a) of this section.

[45 FR 40515, June 13, 1980, as amended at 68 FR 51347, Aug. 26, 2003]



Sec. 1040.64  Effect of State or local law or other requirements and effect of employment opportunities.

    (a) The obligation to comply with this subpart is not obviated or 
alleviated by the existence of any State or local law or other 
requirement that, on the basis of handicap, imposes prohibitions or 
limits upon the eligibility of qualified handicapped persons to receive 
services or to practice any occupation or profession.
    (b) The obligation to comply with this part is not obviated or 
alleviated because employment opportunities in any occupation or 
profession are or may be more limited for handicapped persons than for 
non-handicapped persons.
    (c) Effect of other regulations. All regulations, orders, or similar 
directions issued by any officer of DOE which impose requirements 
designed to prohibit discrimination against individuals on the grounds 
of race, color, national origin, sex, age or handicap under any program 
or activity to which this part applies, and which authorize the 
suspension, termination or refusal to grant or to continue Federal 
financial assistance for failure to comply with these requirements, are 
superseded to the extent that discrimination is prohibited by this part. 
Nothing in this part is to relieve any person of the obligation assumed 
or imposed under any superseded regulation, order, instruction, or 
similar direction prior to the effective date of this part. Nothing in 
this part is to supersede the effective date of this part. Nothing in 
this part is to supersede Executive Orders 10925, 11114, 11063, 11246, 
and regulations issued under these authorities, or supersede any other 
regulations or instructions which prohibit discrimination on the ground 
of race, color, national origin, sex, age, or handicap in

[[Page 922]]

any program or activity to which this part does not apply.

[45 FR 40515, June 13, 1980, as amended at 68 FR 51347, Aug. 26, 2003]



Sec. 1040.65  Procedures.

    The procedural provisions applicable to Title VI of the Civil Rights 
Act of 1964 are adopted and incorporated in this section by reference. 
These procedures may be found in subparts G and H of this part.

                          Employment Practices



Sec. 1040.66  Discrimination prohibited.

    (a) General. (1) No qualified handicapped person shall, on the basis 
of handicap, be subjected to discrimination employment under any program 
or activity to which this subpart applies.
    (2) A recipient shall make all decisions concerning employment under 
any program or activity to which this part applies in a manner which 
ensures that discrimination on the basis of handicap does not occur and 
may not limit, segregate, or classify applicants or employees in any way 
that adversely affects their opportunities or status because of 
handicap.
    (3) A recipient may not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants or employees to discrimination prohibited by this subpart. 
The relationships referred to in this paragraph include relationships 
with employment and referral agencies, labor unions, organizations 
providing or administering fringe benefits to employees of the 
recipient, and organizations providing training and apprenticeships.
    (b) Specific activities. The provisions of this subpart apply to:
    (1) Recruitment, advertising, and processing of applications for 
employment;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;
    (3) Rates of pay or any other form of compensation and changes in 
compensation;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progression, and seniority lists;
    (5) Leaves of absence, sick or otherwise;
    (6) Fringe benefits available by virtue of employment, whether 
administered by the recipient or not;
    (7) Selection and provision of financial support for training, 
including apprenticeship, professional meetings, conferences, and other 
related activities, and selection for leaves of absence to pursue 
training;
    (8) Employer sponsored activities, including those that are social 
or recreational; and
    (9) Any other term, condition, or privilege of employment.
    (c) A recipient's obligation to comply with this subpart is not 
affected by any inconsistent term of any collective bargaining agreement 
to which it is a party.

[45 FR 40515, June 13, 1980, as amended at 68 FR 51347, Aug. 26, 2003]



Sec. 1040.67  Reasonable accommodation.

    (a) A recipient shall make reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified handicapped 
applicant or employee unless the recipient can demonstrate that the 
accommodation would impose an undue hardship on the operation of its 
program or activity.
    (b) Reasonable accommodation may include:
    (1) Making facilities used by employees readily accessible to and 
usable by handicapped persons; and
    (2) Job restructuring, part-time or modified work schedules, 
acquisition or modification of equipment or devices, the provision of 
readers or interpreters, and other similar actions.
    (c) In determining, under paragraph (a) of this section, whether an 
accommodation would impose an undue hardship on the operation of a 
recipient's program or activity, factors to be considered include:
    (1) The overall size of the recipient's program or activity with 
respect to number of employees, number and type of facilities, and size 
of budget;
    (2) The type of the recipient's operation, including the composition 
and structure of the recipient's workforce; and

[[Page 923]]

    (3) The nature and cost of the accommodation needed.
    (d) A recipient may not deny any employment opportunity to a 
qualified handicapped employee or applicant if the basis for the denial 
is the need to make reasonable accommodation to the physical or mental 
limitations of the employee or applicant.

[45 FR 40515, June 13, 1980, as amended at 68 FR 51347, Aug. 26, 2003]



Sec. 1040.68  Employment criteria.

    (a) A recipient may not use any employment test or other selection 
criterion that screens out or tends to screen out handicapped persons 
unless the test score or other selection criterion, as used by the 
recipient, is shown to be job-related for the position in question.
    (b) A recipient shall select and administer tests concerning 
employment to best ensure that, when administered to an applicant or 
employee who has a handicap that impairs sensory, manual, or speaking 
skills, the test results accurately reflect the applicant's or 
employee's job skills, aptitude or other factors the test purports to 
measure except where those skills are the factors that the test purports 
to measure.



Sec. 1040.69  Preemployment inquiries.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
recipient may not conduct a pre-employment medical examination or may 
not make pre-employment inquiry of an applicant as to whether the 
applicant is a handicapped person or as to the nature or severity of a 
handicap. A recipient may, however, make pre-employment inquiry into an 
applicant's ability to perform job-related functions.
    (b) When a recipient is taking remedial action to correct the 
effects of past discrimination, under Sec. 1040.7 of this part, or is 
taking voluntary action to overcome the effects of conditions that 
resulted in limited participation in its federally assisted program or 
activity under Sec. 1040.7 of subpart A of this part, or when a 
recipient is taking affirmative action under Sec. 503 of the 
Rehabilitation Act of 1973, as amended, the recipient may invite 
applicants for employment to indicate whether, and to what extent, they 
are handicapped Provided that:
    (1) The recipient states clearly on any written questionnaire used 
for this purpose or makes clear orally, if no written questionnaire is 
used, that the information requested is intended for use solely in 
connection with its remedial action obligations or its voluntary or 
affirmative action efforts; and
    (2) The recipient states clearly that the information is requested 
on a voluntary basis, that it will be kept confidential as provided in 
paragraph (d) of this section, that refusal to provide it will not 
subject the applicant or employee to any adverse treatment, and that it 
will be used only in accordance with this subpart.
    (c) Nothing in this section is to prohibit a recipient from 
conditioning an offer of employment on the results of a medical 
examination conducted prior to the employee's entrance on duty provided 
that all entering employees are subjected to the examination regardless 
of handicap or absence of handicap and results of the examination are 
used only in accordance with the requirements of this subpart.
    (d) Information obtained in accordance with this section concerning 
the medical condition or history of the applicant is to be collected and 
maintained on separate forms that are to be accorded confidentiality as 
medical records, except that:
    (1) Supervisors and managers may be informed regarding restrictions 
on the work or duties of handicapped persons and regarding necessary 
accommodations;
    (2) First aid and safety personnel may be informed, where 
appropriate, if the condition might require emergency treatment; and
    (3) Government officials investigating compliance with Sec. 504 of 
the Rehabilitation Act of 1973, as amended, shall be provided relevant 
information upon request.

                              Accessibility



Sec. 1040.71  Discrimination prohibited.

    No handicapped person shall, because a recipient's facilities are 
inaccessible

[[Page 924]]

to or unuseable by handicapped persons, be denied the benefits of, be 
excluded from participation in, or be subjected to discrimination under 
any program or activity that receives or benefits from Federal financial 
assistance from DOE.



Sec. 1040.72  Existing facilities.

    (a) Accessibility. A recipient shall operate any program or activity 
to which this subpart applies so that when each part is viewed in its 
entirety it is readily accessible and usable by handicapped persons. 
This paragraph does not require a recipient to make each of its existing 
facilities or every part of a facility accessible to and useable by 
handicapped persons.
    (b) Methods. A recipient may comply with the requirements of 
paragraph (a) of this section through such means as redesign of 
equipment, reassignment of classes or other services to accessible 
buildings, assignment of aids to beneficiaries, home visits, delivery of 
health, welfare, or other social services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities in 
conformance with the requirements of Sec. 1040.73 or any other methods 
that result in making its program or activity accessible to handicapped 
persons. A recipient is not required to make structural changes in 
existing facilities where other methods are effective in achieving 
compliance with paragraph (a) of this section. In choosing among 
available methods for meeting the requirement of paragraph (a) of this 
section, a recipient shall give priority to those methods that serve 
handicapped persons in the most integrated setting appropriate.
    (c) Time period. A recipient shall comply with the requirement of 
paragraph (a) of this section within 60 days of the effective date of 
this subpart except that where structural changes in facilities are 
necessary, the changes are to be made as expeditiously as possible, but 
in no event later than three years after the effective date of this 
subpart.
    (d) Transition plan. In the event that structural changes to 
facilities are necessary to meet the requirement of paragraph (a) of 
this section, a recipient shall develop, within 6 months of the 
effective date of this subpart, a transition plan setting forth the 
steps necessary to complete the changes. The plan is to be developed 
with the assistance of interested persons, including handicapped persons 
or organizations representing handicapped persons, and the plan is to 
meet with the approval of the Director, Federally Assisted Programs 
Division, Office of Equal Opportunity, DOE. A copy of the transition 
plan is to be made available for public inspection. At a minimum, the 
plan is to:
    (1) Identify physical obstacles in the recipient's facilities that 
limit the accessibility to and usability by handicapped persons of its 
program or activity.
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
full accessibility under Sec. 1040.72(a) and, if the time period or the 
transition plan is longer than one year, identify steps that will be 
taken during each year of the transition period; and
    (4) Indicate the person responsible for implementation of the plan.
    (e) Notice. The recipient shall adopt and implement procedures to 
ensure that interested persons, including persons with impaired vision 
or hearing, can obtain information concerning the existence and location 
of services, activities, and facilities that are accessible to, and 
useable by, handicapped persons.

[45 FR 40515, June 13, 1980, as amended at 68 FR 51347, Aug. 26, 2003]



Sec. 1040.73  New construction.

    (a) Design and construction. Each facility or part of a facility 
constructed by, on behalf of, or for the use of a recipient is to be 
designed and constructed in a manner that the facility or part of the 
facility is readily accessible to, and useable by, handicapped persons, 
if the construction was commenced after the effective date of this 
subpart.
    (b) Alteration. Each facility or part of a facility which is altered 
by, on behalf of, or for the use of a recipient after the effective date 
of this subpart in a manner that affects or could affect the usability 
of the facility or part of the

[[Page 925]]

facility is, to the maximum extent feasible, to be altered in a manner 
that the altered portion of the facility is readily accessible to and 
useable by handicapped persons.
    (c) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as of January 18, 1991, design, construction, or alteration of 
buildings in conformance with sections 3-8 of the Uniform Federal 
Accessibility Standards (USAF) (appendix A to 41 CFR subpart 101-19.6) 
shall be deemed to comply with the requirements of this section with 
respect to those buildings. Departures from particular technical and 
scoping requirements of UFAS by the use of other methods are permitted 
where substantially equivalent or greater access to and usability of the 
building is provided.
    (2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall 
be interpreted to exempt from the requirements of UFAS only mechanical 
rooms and other spaces that, because of their intended use, will not 
require accessibility to the public or beneficiaries or result in the 
employment or residence therein of persons with physical handicaps.
    (3) This section does not require recipients to make building 
alterations that have little likelihood of being accomplished without 
removing or altering a load-bearing structural member.

[45 FR 40515, June 13, 1980, as amended at 55 FR 52138 and 52140, Dec. 
19, 1990]



Sec. 1040.74  Accessibility in historic properties.

    (a) Methods to accomplish accessibility. Recipients shall operate 
each program or activity involving historic properties so that when each 
part is viewed in its entirety it is readily accessible to and usable by 
handicapped persons. The recipient shall exhaust subsection (b)(1) 
(methods to accomplish accessibility without building alterations or 
structural changes) before proceeding to subsection (b)(2) (methods to 
accomplish program accessibility resulting in building alterations). The 
recipient shall exhaust subsection (b)(2) (methods to accomplish 
accessibility resulting in building alterations) before proceeding to 
subsection (b)(3) (methods to accomplish accessibility resulting in 
structural changes).
    (1) Methods to accomplish accessibility without building alterations 
or structural changes. The recipient shall investigate compliance 
methods which do not alter the historic character or architectural 
integrity of the property and shall utilize such methods unless such 
methods are ineffective in achieving accessibility. Such methods may 
include, but are not limited to:
    (i) Reassigning aid, benefits, or services to accessible locations 
within the facility.
    (ii) Assigning persons to aid handicapped persons into or through an 
otherwise inaccessible facility.
    (iii) Delivering aid, benefits, or services at alternative 
accessible sites operated by or available for such use by the recipient.
    (iv) Adopting other innovative methods which make aid, benefits, or 
services accessible to the handicapped.
    (2) Methods to accomplish accessibility resulting in building 
alterations. The recipient shall determine that accessibility cannot 
feasibly be accomplished by Methods to Accomplish Accessibility without 
Building Alterations or Structural Changes, subsection (b)(1) prior to 
utilizing building alteration as a method of accomplishing program 
accessibility. Alterations must comply with the accessibility standards 
adopted in these regulations. Building alterations shall be undertaken 
so as not to alter or destroy historically, architecturally, or 
culturally significant elements or features.
    (3) Methods to accomplish accessibility resulting in structural 
changes. The recipient shall determine that accessibility cannot 
feasibly be accomplished by Methods to Accomplish Accessibility without 
Building Alterations or Structural Changes, subsection (b)(2) before 
considering structural changes as a method of accomplishing program 
accessibility. Structural changes must comply with the accessibility 
standards adopted in these regulations. Structural changes shall be 
undertaken so as not to alter or destroy historically, architecturally 
or culturally significant elements or features.
    (b) Modification or waiver of accessibility standards. The 
applicability of the

[[Page 926]]

accessibility standards set forth in these regulations may be modified 
or waived on a case-by-case basis, upon application to the Director, 
FAPD, where the recipient can demonstrate that, because of the nature of 
the activity, the provision of access would be infeasible or would 
substantially impair the historic, architectural or cultural integrity 
of the historic property.

(National Historic Preservation Act of 1966, Pub. L. 89-665, 80 Stat 
915, 16 U.S.C. 470; 11593, 3 CFR 1971 Comp., p. 154; 36 CFR part 800)

[45 FR 40515, June 13, 1980, as amended at 68 FR 51347, Aug. 26, 2003]



 Subpart E_Nondiscrimination on the Basis of Age_Age Discrimination Act 
                           of 1975, as Amended

    Authority: Age Discrimination Act of 1975, as amended (42 U.S.C. 
6101 et seq.); 45 CFR part 90.

    Source: 50 FR 8089, Feb. 27, 1985, unless otherwise noted.

                           General Provisions



Sec. 1040.81  Purpose.

    The purpose of these regulations is to implement the Age 
Discrimination Act of 1975, as Amended, which prohibits discrimination 
on the basis of age in programs or activities receiving Federal 
financial assistance. In accordance with the Age Discrimination Act, 
federally assisted programs or activities and recipients of Federal 
funds may continue to use age distinctions and factors other than age 
which meet the requirements of the Act and these regulations.

[50 FR 8089, Feb. 27, 1985, as amended at 68 FR 51348, Aug. 26, 2003]



Sec. 1040.82  Application.

    (a) These regulations apply to each program or activity which 
receives Federal financial assistance provided by DOE.
    (b) These regulations do not apply to--
    (1) An age distinction contained in that part of a Federal, State, 
or local statute or ordinance adopted by an elected, general purpose 
legislative body which:
    (i) Provides any benefits or assistance to persons based on age; or
    (ii) Establishes criteria for participation in age-related terms; or
    (iii) Describes intended beneficiaries or target groups in age-
related terms.
    (2) Any employment practice of any employer, employment agency, 
labor organization, or any labor-management joint apprenticeship 
training program.

[50 FR 8089, Feb. 27, 1985, as amended at 68 FR 51348, Aug. 26, 2003]



Sec. 1040.83  Definitions.

    (a) Act means the Age Discrimination Act of 1975 as amended title 
III of Pub. L. 94-135, 42 U.S.C. 6101 et seq.
    (b) Action means any act, activity, policy, rule, standard or method 
of administration; or the use of any policy, rule, standard, or method 
of administration.
    (c) Age means how old a person is or the number of years from the 
date of a person's birth.
    (d) Age distinction means any action using age or an age-related 
term (for example, ``18 or over'').
    (e) Age-related term means a word or words which necessarily imply a 
particular age or range of ages (for example, ``children'', ``adult'', 
``older persons'', but not ``student'').
    (f) Days mean calendar days.
    (g) Discrimination means unlawful treatment based on age.
    (h) FERC means the Federal Energy Regulatory Commission.
    (i) Field Civil Rights Officer means the official in each DOE field 
office with responsibility for administering DOE's Civil Rights Program 
related to nondiscrimination in Federally assisted programs or 
activities.
    (j) Recipient means any State or its political subdivision, 
instrumentality of a State or its political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended, directly or 
through another recipient. Recipient includes any successor, assignee, 
or transferee, but excludes an individual who is the ultimate 
beneficiary of the assistance.

[[Page 927]]

    (k) Secretary means the Secretary, Department of Energy.

[50 FR 8089, Feb. 27, 1985, as amended at 68 FR 51348, Aug. 26, 2003]

              Standards for Determining Age Discrimination



Sec. 1040.84  Rules against age discrimination.

    The rules stated in this section are limited by the exceptions 
contained in Sec. 1040.86 and of these regulations.
    (a) General rule. No person in the United States shall, on the basis 
of age, be excluded from participation in, be denied the benefits of, or 
be subjected to discrimination under, any program or activity receiving 
Federal financial assistance.
    (b) Specific rules. A recipient may not, in any program or activity 
receiving Federal financial assistance, directly or through contractual, 
licensing, or other arrangements use age distinctions or take any other 
actions which have the effect, on the basis of age, of:
    (1) Excluding individuals from, denying them the benefits of, or 
subjecting them to discrimination under, a program or activity receiving 
Federal financial assistance; or
    (2) Denying or limiting individuals in their opportunity to 
participate in any program or activity receiving Federal financial 
assistance.
    (3) The specific forms of age discrimination listed in paragraph (b) 
of this section do not necessarily constitute a complete list.



Sec. 1040.85  Definitions of ``Normal Operation'' and ``Statutory Objective''.

    For purpose of Sec. Sec. 1040.86 and 1040.87, the terms normal 
operation and statutory objective shall have the following meanings:
    (a) Normal operation means the operation of a program or activity 
without significant changes that would impair its ability to meet its 
objectives.
    (b) Statutory objective means any purpose of a program or activity 
expressly stated in any Federal, State, or local statute or ordinance 
adopted by an elected, general purpose legislative body.



Sec. 1040.86  Exceptions to the rules against age discrimination. Normal operation or statutory objective of any program or activity.

    A recipient is permitted to take an action, otherwise prohibited by 
Sec. 1040.84, if the action reasonably takes into account age as a 
factor necessary to the normal operation or the achievement of any 
statutory objective of a program or activity. An action reasonably takes 
into account age as a factor necessary to the normal operation of a 
program or activity if:
    (a) Age is used as a measure or approximation of one or more other 
characteristics;
    (b) The other characteristic(s) must be measured or approximated in 
order for the normal operation of the program or activity to continue or 
to achieve any statutory objective of the program or activity;
    (c) The other characteristic(s) can be reasonably measured or 
approximated by the use of age; and
    (d) The other characteristic(s) are impractical to measure directly 
on an individual basis.



Sec. 1040.87  Exceptions to the rules against age discrimination. Reasonable factors other than age.

    A recipient is permitted to take an action otherwise prohibited by 
Sec. 1040.84 which is based on a factor other than age, even though 
that action may have a disproportionate effect on persons of different 
ages. An action may be based on a factor other than age only if the 
factor bears a direct and substantial relationship to the normal 
operation of the program or activity or to the achievement of a 
statutory objective.



Sec. 1040.88  Remedial and affirmative action by recipients.

    (a) Where a recipient is found to have discriminated on the basis of 
age, the recipient shall take such remedial action as the Director, 
Office of Civil Rights and Diversity, considers necessary to overcome 
the effects of the discrimination.
    (b) Even in the absence of a finding of discrimination, a recipient 
may take

[[Page 928]]

affirmative action to overcome the effects of conditions that resulted 
in limited participation in the recipient's program or activity on the 
basis of age.
    (c) If a recipient operating a program or activity which serves the 
elderly or children, in addition to persons of other ages, provides 
special benefits to the elderly or to children, the provision of those 
benefits shall be presumed to be voluntary affirmative action provided 
that it does not have the effect of excluding otherwise eligible persons 
from participation in the program or activity.

[50 FR 8089, Feb. 27, 1985, as amended at 68 FR 51348, Aug. 26, 2003]



Sec. 1040.89  Burden of proof.

    The burden of proving that an age distinction or other action falls 
within the exceptions outlined in Sec. Sec. 1040.86 and 1040.87 is on 
the recipient of Federal financial assistance.

                   Responsibilities of DOE Recipients



Sec. 1040.89-1  General responsibilities.

    Each DOE recipient has primary responsibility to ensure that its 
programs or activities are in compliance with the Act and these 
regulations. A recipient also has responsibility to maintain records, 
provide information, and afford access to its records to DOE, to the 
extent required to determine whether it is in compliance with the Act 
and these regulations.

[50 FR 8089, Feb. 27, 1985, as amended at 68 FR 51348, Aug. 26, 2003]



Sec. 1040.89-2  Notice to subrecipients.

    Where a recipient awards Federal financial assistance from DOE to 
its subrecipients, the recipient shall provide the subrecipients written 
notice of their obligations under these regulations.



Sec. 1040.89-3  Information requirements.

    Each recipient shall: (a) Upon request make available to DOE 
information necessary to determine whether the recipient is complying 
with the Act and these regulations.
    (b) Permit reasonable access by DOE, upon request, to the books, 
records, accounts, and other recipient facilities and sources of 
information to the extent necessary to determine whether the recipient 
is in compliance with the Act and these regulations.

         Investigation, Conciliation and Enforcement Procedures



Sec. 1040.89-4  Compliance reviews.

    (a) DOE may conduct preaward and postaward compliance reviews of 
recipients as prescribed in this part or use other similar procedures 
that will permit it to investigate and correct violations of the Act and 
these regulations. DOE may conduct these reviews even in the absence of 
a complaint against a recipient. The review may be as comprehensive as 
necessary to determine whether a violation of these regulations has 
occurred.
    (b) If a compliance review indicates a violation of the Act or these 
regulations, DOE will attempt to achieve voluntary compliance with the 
Act. If voluntary compliance cannot be achieved, DOE will arrange for 
enforcement as described in Sec. 1040.89-10.



Sec. 1040.89-5  Complaints.

    (a) Any person, individually or as a member of a class or on behalf 
of others, may file a written complaint with DOE alleging discrimination 
prohibited by the Act or these regulations. A complainant must file a 
complaint within 180 days from the date he/she first had knowledge of 
the alleged act of discrimination. For good cause shown, however, the 
Director, Office of Civil Rights and Diversity, may extend the time 
limit for filing a complaint. Complaints may be submitted to Field Civil 
Rights Officers located in DOE's field offices or to the Director, 
Office of Civil Rights and Diversity, Forrestal Building, 1000 
Independence Avenue, SW., Washington, D.C. 20585.
    (b) The Director, Office of Civil Rights and Diversity, will attempt 
to facilitate the filing of complaints wherever possible, including 
taking the following measures:
    (1) Accepting as a sufficient complaint any written statement which 
identifies the parties involved and the date the complainant first had 
knowledge of the alleged violation, describes

[[Page 929]]

generally the action or practice complained of, and is signed by the 
complainant.
    (2) Freely permitting a complainant to add information to the 
complaint to meet the requirements of a sufficient complaint.
    (3) Widely disseminating information regarding the obligations of 
recipients under the Act and these regulations.
    (4) Notifying the complainant and the recipient of their rights and 
obligations under the complaint procedure, including the right to have a 
representative at all stages of the complaint procedure.
    (5) Notifying the complainant and the recipient (or their 
representatives) of their right to contact DOE for information and 
assistance regarding the complaint resolution process.
    (c) The Director, Office of Civil Rights and Diversity, will refer 
any complaint outside the jurisdiction of DOE to the proper Federal 
department or agency and will also notify the complainant and the 
recipient of the referral. The notification will contain an explanation 
for the referral and the name, telephone number, and address of the 
Federal department or agency office having jurisdiction over the matter 
complained.

[50 FR 8089, Feb. 27, 1985, as amended at 68 FR 51348, Aug. 26, 2003]



Sec. 1040.89-6  Mediation.

    (a) Referral of complaints for mediation. DOE will refer to the 
Federal Mediation and Conciliation Service, in accordance with 45 CFR 
90.43(c)(3), all complaints that:
    (1) Fall within the jurisdiction of the Act and these regulations; 
and
    (2) Contain all information necessary for further processing.
    (b) Both the complainant and the recipient shall participate in the 
mediation process to the extent necessary to reach an agreement or make 
an informed judgment that an agreement is not possible. There must be at 
least one meeting with the mediator before the Director, Office of Civil 
Rights and Diversity, will accept a judgment that an agreement is not 
possible. However, the recipient and the complainant need not meet with 
the mediator at the same time.
    (c) If the complainant and the recipient reach an agreement, the 
mediator shall prepare a written statement of the agreement and have the 
complainant and the recipient sign it. The mediator shall send a copy of 
the agreement to the Director, Office of Civil Rights and Diversity, 
DOE. DOE will take no further action on the complaint unless the 
complainant or the recipient fails to comply with the agreement.
    (d) DOE will use the mediation process for a maximum of 60 days 
after referring a complaint to mediation. Mediation ends if:
    (1) 60 days elapse from the time the mediation agency receives the 
complaint; or
    (2) Prior to the end of the 60 day mediation period, an agreement is 
reached; or
    (3) Prior to the end of that 60 day mediation period, the mediator 
determines that an agreement cannot be reached.
    (e) The mediator shall return unresolved complaints to the Director, 
Office of Civil Rights and Diversity, DOE.

[50 FR 8089, Feb. 27, 1985, as amended at 68 FR 51348, Aug. 26, 2003]



Sec. 1040.89-7  Investigation.

    (a) Informal Investigation. (1) The Director, Office of Civil Rights 
and Diversity, will review complaints that are unresolved after 
mediation or are reopened because of a violation of a mediation 
agreement.
    (2) As part of this review, Field Civil Rights Officers will use 
informal fact finding methods, including joint or separate discussions 
with the complainant and recipient, to establish the facts and, if 
possible, settle the complaint on terms that are mutually agreeable to 
the parties.
    (3) If the complaint is resolved during the informal investigation, 
DOE will put the agreement in writing and have it signed by the parties 
and the Director, Office of Civil Rights and Diversity.
    (4) The settlement shall not affect the operation of any other 
enforcement effort of DOE, including compliance reviews and 
investigation of other complaints which may involve the recipient.

[[Page 930]]

    (5) The settlement is not a finding of discrimination against a 
recipient.
    (b) Formal Investigation. If Field Civil Rights Officers cannot 
resolve the complaint through informal inquiry, the Director, Office of 
Civil Rights and Diversity, will assign an Investigator to conduct a 
formal investigation of the complaint. If the investigation indicates a 
violation of the Act or these regulations, DOE will attempt to obtain 
voluntary compliance. If DOE cannot obtain voluntary compliance, it will 
begin enforcement as described in Sec. 1040.89-10 and 10 CFR part 1040, 
subpart H, Sec. 1040.111.

[50 FR 8089, Feb. 27, 1985, as amended at 68 FR 51348, Aug. 26, 2003]



Sec. 1040.89-8  Prohibition against intimidation or retaliation.

    A recipient may not engage in acts of intimidation or retaliation 
against any person who:
    (a) Attempts to assert a right protected by the Act or these 
regulations; or
    (b) Cooperates in any mediation, investigation, hearing, or other 
part of DOE's investigation, conciliation, and enforcement process.



Sec. 1040.89-9  Compliance procedure.

    (a) DOE may enforce the Act and these regulations through procedures 
precribed in subpart H of DOE regulation 10 CFR part 1040--
Nondiscrimination in Federally Assisted Programs or Activities, which 
calls for--
    (1) Termination of a recipient's Federal financial assistance from 
DOE for a program activity in which the recipient has violated the Act 
or these regulations. The determination of the recipient's violation may 
be made only after a recipient has had an opportunity for a hearing on 
the record before the Federal Energy Regulatory Commission (FERC). 
Therefore, cases which are settled in mediation, or prior to a hearing, 
will not involve termination of a recipient's Federal financial 
assistance from DOE under this section.
    (2) Any other means authorized by law including, but not limited to:
    (i) Referral to the Department of Justice for proceedings to enforce 
any rights of the United States or obligations of the recipient created 
by the Act or these regulations, or under the terms of the Federal 
financial assistance.
    (ii) Use of any requirement of, or referral to, any Federal, State, 
or local government agency that will have the effect of correcting a 
violation of the Act of these regulations.
    (b) DOE will limit any termination under Sec. 1040.89-9(a)(1) to 
the particular recipient and particular program or activity DOE finds in 
violation of these regulations. DOE will not base any part of a 
termination on a finding with respect to any program or activity of the 
recipient which does not receive Federal financial assistance from DOE.
    (c) DOE will take no action under paragraph (a) until:
    (1) The Director, Office of Civil Rights and Diversity, has advised 
the recipient of its failure to comply with the Act, these regulations, 
or the terms of the Federal financial assistance and has determined that 
voluntary compliance cannot be obtained.
    (2) Thirty (30) days have elapsed after the Secretary or the 
Secretary's designee has sent a written report of the circumstances and 
grounds of the action to the committees of the Congress having 
legislative jurisdiction over the program or activity involved. The 
Secretary will file a report whenever any action is taken under 
paragraph (a) of this section.
    (d) DOE also may defer granting new Federal financial assistance to 
a recipient when a hearing under Sec. 1040.89-10 is initiated.
    (1) New Federal financial assistance from DOE includes all 
assistance for which DOE requires an application or approval, including 
renewal or continuation of existing activities, or authorization of new 
activities during the deferral period. New Federal financial assistance 
from DOE does not include increases in funding as a result of changes, 
computation of formula awards, or assistance awarded prior to the 
beginning of a hearing under Sec. 1040.89-10.
    (2) DOE will not defer new assistance until the recipient has 
received a notice of an opportunity for a hearing under Sec. 1040.89-
10. DOE will not continue a deferral for more than 60 days

[[Page 931]]

unless a hearing has begun within that time or the time for beginning 
the hearing has been extended by mutual consent of the recipient and 
FERC. DOE will not continue a deferral for more than 30 days after the 
close of the hearing, unless the hearing resulted in a finding against 
the recipient.

[50 FR 8089, Feb. 27, 1985, as amended at 68 FR 51348, Aug. 26, 2003]



Sec. 1040.89-10  Hearings, decisions, post-termination proceedings.

    DOE procedural provisions applicable to title VI of the Civil Rights 
Act of 1964 apply to DOE enforcement of these regulations. They are 10 
CFR subpart H Sec. Sec. 1040.121 through 1040.124.



Sec. 1040.89-11  Remedial action by recipients.

    Where the Director, Office of Civil Rights and Diversity, finds a 
recipient has discriminated on the basis of age, the recipient shall 
take such remedial action as the Director, OEO, may require to end the 
discrminatory practice or policy and/or to overcome the effects of the 
discrimination.

[50 FR 8089, Feb. 27, 1985, as amended at 68 FR 51348, Aug. 26, 2003]



Sec. 1040.89-12  Alternate funds disbursal procedure.

    (a) When DOE withholds funds from a recipient under these 
regulations, the Secretary or designee may disburse the withheld funds 
directly to an alternate recipient(s), any public or private 
organization or agency, or State or political subdivision of the State.
    (b) The Secretary or designee will require any alternate recipient 
to demonstrate:
    (1) The ability to comply with these regulations; and
    (2) The ability to achieve the goals of the Federal statute 
authorizing the Federal financial assistance.

[50 FR 8089, Feb. 27, 1985, as amended at 68 FR 51348, Aug. 26, 2003]



Sec. 1040.89-13  Exhaustion of administrative remedies.

    (a) A complainant may file a civil action following the exhaustion 
of administrative remedies under the Act. Administrative remedies are 
exhausted if:
    (1) One hundred eighty (180) days have elapsed since the complainant 
filed the complaint and DOE has made no findings with regard to the 
complainant; or
    (2) DOE issues any findings in favor of the recipient.
    (b) If DOE fails to make a finding within 180 days or issues a 
finding in favor of the recipient, the Director, Office of Civil Rights 
and Diversity, will:
    (1) Promptly advise the complainant of this fact; and
    (2) Advise the complainant of his or her right to bring a civil 
action for injunctive relief; and
    (3) Inform the complainant:
    (i) That the complainant may bring a civil action only in a United 
States District Court for the district in which the recipient is located 
or transacts business;
    (ii) That a complainant prevailing in a civil action has the right 
to be awarded the costs of the action, including reasonable attorney 
fees, but that the complainant must demand these costs in the complaint;
    (iii) That, before commencing the action, the complainant shall give 
30 days notice, by registered mail, to the Secretary of DOE, the 
Secretary of the Department of Health and Human Services, the Attorney 
General of the United States, and the recipient;
    (iv) That the notice must state: the alleged violation of the Act 
and these regulations; the relief requested; the court in which the 
complainant is bringing the action; and whether or not attorney fees are 
demanded in the event the complainant prevails; and
    (v) That the complainant may not bring an action if the same alleged 
violation of the Act by the same recipient is the subject of a pending 
action in any court of the United States.

[50 FR 8089, Feb. 27, 1985, as amended at 68 FR 51348, Aug. 26, 2003]

[[Page 932]]



   Sec. Appendix A to Subpart E of Part 1040--DOE Federally Assisted 
                  Programs Containing Age Distinctions


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Use of age/age related team
                                                            -------------------------------------------------------------
Statute, Name, Public Law, and U.S.      Section and age         Conditions         Establishes           Describes            Popular name        CFDA
                Code                       distinction          benefits or         criteria for       beneficiaries or                            No.
                                                                 assistance        participation        target groups
--------------------------------------------------------------------------------------------------------------------------------------------------------
Energy Conservation and Production   Section 413(a). The     .................  ...................  X                    Weatherization          81.042
 Act, Title IV, Part A; Public Law    Administrator shall                                                                  Assistance Program
 94-385, 42 U.S.C. 6861-6870.         develop and conduct,                                                                 for Low-Income
                                      in accordance with                                                                   Persons.
                                      the purpose and
                                      provisions of this
                                      part, a
                                      weatherization
                                      program. In
                                      developing and
                                      conducting such
                                      program, the
                                      Administrator may, in
                                      accordance with this
                                      part and regulations
                                      promulgated under
                                      this part, make
                                      grants (1) to States,
                                      and (2) in accordance
                                      with the provisions
                                      of subsection (d), to
                                      Indian tribal
                                      organizations to
                                      serve Native
                                      Americans. Such
                                      grants shall be made
                                      for the purpose of
                                      providing financial
                                      assistance with
                                      regard to projects
                                      designed to provide
                                      for the
                                      weatherization of
                                      dwelling units,
                                      particularly those
                                      where elderly or
                                      handicapped low-
                                      income persons
                                      reside, in which the
                                      head of the household
                                      is a low-income
                                      person.
Interagency Agreement between the    Interagency Agreement,  .................  ...................  X                    Summer Science             N/A
 United States Department of Energy   Section 1, Purpose:                                                                  Student Program.
 and the United States Department     ``The purpose of this
 of Labor, Interagency Agreement      agreement is to
 No. 99-9-1656-07-11; Authority:      provide for a
 Comprehensive Employment and         transfer of funds
 Training Act of 1978 (CETA) (Pub.    from the Department
 L. 95-524, October 27, 1978; 92      of Labor, Employment
 Stat. 1909; 29 U.S.C. 801), the      and Training
 Energy Reorganization Act of 1974,   Administration (ETA),
 as amended (Pub. L. 93-438,          Office of Youth
 October 11, 1974; 88 Stat. 1233),    Programs (OYP) to the
 and the Department of Energy         Department of Energy,
 Organization Act (DOE Act) (Pub.     Directorate of
 L. 95-91, August 4, 1977); 91        Administration (AD),
 Stat. 565; 42 U.S.C. 7101).          Office of Industrial
                                      Relations (OIR), to
                                      fund the Summer
                                      Science Student
                                      Program (SSSP). The
                                      SSSP will grant
                                      monies from DOL
                                      through DOE/OIR to
                                      DOE contractors to
                                      fund 480 participant
                                      slots for
                                      economically
                                      disadvantaged youths
                                      in an integrated
                                      program of career
                                      motivation and basic
                                      academic skill
                                      enrichment. The
                                      program is designed
                                      to motivate
                                      economically
                                      disadvantaged and
                                      academically talented
                                      youths to continue
                                      their education and
                                      to pursue energy-
                                      related careers upon
                                      graduation from high
                                      school.

[[Page 933]]

 
Executive Office of the President,   Quotation from October  .................  ...................  X                    Summer Research            N/A
 Office of Science and Technology     23, 1979 memorandum,                                                                 Apprenticeship
 Policy, Memorandum, Subject:         paragraph 2, ``The                                                                   Program.
 Research Apprenticeships for         objectives are to
 Minority High Schoolers, dated       stimulate broader
 October 23, 1979.                    interest in the
                                      minority communities
                                      in careers in science
                                      and engineering and
                                      to establish
                                      individual working
                                      relationships of high
                                      school students with
                                      active researchers
                                      who may become
                                      helpful mentors when
                                      students need advice
                                      on college and
                                      careers and need
                                      letters of
                                      recommendation''.
--------------------------------------------------------------------------------------------------------------------------------------------------------


[50 FR 8089, Feb. 27, 1985, as amended at 68 FR 51348, Aug. 26, 2003]

Subpart F--Nondiscrimination Under Title VIII of the Civil Rights Act of 
1968, as Amended [Reserved]



                      Subpart G_Program Monitoring



Sec. 1040.101  Compliance reviews.

    (a) The Director shall periodically conduct compliance reviews of 
selected recipients of DOE Federal financial assistance.
    (b) The Director shall seek to review those recipients which have 
the most serious equal opportunity problems which cause the greatest 
disparity in delivery of services on a nondiscriminatory basis. 
Selection for review is to be made on the basis of the following 
criteria, among others:
    (1) The relative disparity between the percentage of minorities, 
women, or handicapped persons, in the relevant labor market, and the 
percentage of minorities, women, or handicapped persons, employed by the 
recipient if employment practices are covered by this part;
    (2) The percentage of individuals covered by the Age Discrimination 
Act of 1975, minorities, women and handicapped persons in the population 
receiving program benefits.
    (3) The number and nature of discrimination complaints filed against 
a recipient with DOE or other Federal agencies;
    (4) The scope of the problems revealed by an investigation commenced 
on the basis of a complaint filed with DOE against a recipient; and
    (5) The amount of assistance provided to the recipient.
    (c) After selection of a recipient for review, the Director 
Federally Assisted Programs Division or the Director's designee, shall 
inform the recipient of the selection. The notice shall be in writing 
and posted thirty days prior to the scheduled review. The letter will 
ordinarily request data pertinent to the review and advise the recipient 
of:
    (1) The practices to be reviewed;
    (2) The programs or activities affected by the review;
    (3) The opportunity to make, at any time prior to receipt of DOE's 
finding, a written submission responding to DOE which explains, 
validates, or otherwise addresses the practices under review; and
    (4) The schedule under which the review will be conducted and a 
determination of compliance or noncompliance made.
    (d) Within 90 days of arriving on-site to conduct the review, the 
Director, FAPD, shall advise the recipient, in writing, of:
    (1) Preliminary findings;

[[Page 934]]

    (2) Where appropriate, recommendations for achieving voluntary 
compliance; and
    (3) The opportunity to request DOE to engage in voluntary compliance 
negotiations prior to the Director's final determination of compliance 
or noncompliance. The Director or the Director's designee shall notify 
the Assistant Attorney General at the same time the recipient is 
notified of any matter where recommendations for achieving voluntary 
compliance are made.
    (e) If, within 45 days of the recipient's notification under 
paragraph (d) of this section, the Director's (FAPD) recommendations for 
compliance are not met, or voluntary compliance is not secured, or the 
preliminary findings are not shown to be false, the matter will be 
forwarded to the Director for a determination of compliance or 
noncompliance. The determination is to be made no later than 60 days 
after the recipient has been notified of the preliminary findings. If 
the Director makes a determination of noncompliance, the Department 
shall institute actions specified in subparts G and H.
    (f) Where the Director makes a formal determination of 
noncompliance, the recipient and the Assistant Attorney General shall be 
immediately advised, in writing, of the determination and of the fact 
that the recipient has an additional 10 days in which to come into 
voluntary compliance. If voluntary compliance has not been achieved 
within the 10 days, the Director shall institute proceedings under 
subpart H.
    (g) All agreements to come into voluntary compliance shall be in 
writing and signed by the Director and an official who has authority to 
legally bind the recipient.



Sec. 1040.102  Compliance information.

    (a) Cooperation and assistance. Each responsible Departmental 
official shall, to the fullest extent practicable, seek the cooperation 
of recipients in obtaining compliance with this part and shall provide 
assistance and guidance to recipients to help them comply voluntarily 
with this part.
    (b) Compliance reports. Each recipient shall keep reports and submit 
to the responsible Department official or his/her designee, timely, 
complete, and accurate compliance reports at the times, in such form, 
and containing information as the responsible Department official or the 
designee may determine to be necessary to enable him/her to ascertain 
whether the recipient has complied or is complying with this part. In 
general, recipients should have available for DOE data on program 
participants, identified by race, color, national origin, sex, age and 
handicap status. In the case of any program under which a primary 
recipient extends Federal financial assistance to any other recipient or 
subcontracts with any other person or group, such other recipient shall 
also submit compliance reports to the primary recipient which will 
enable the primary recipient to carry out its obligations under this 
part.
    (c) Access to sources of information. Each recipient shall permit 
access by the responsible Department official or his/her designee during 
normal business hours to books, records, personnel records, accounts, 
other sources of information, and its facilities, which are pertinent to 
ascertain compliance with this part. The requirement for access to 
sources of information shall be contained in the certificate of 
assurance and agreed to by the recipient as a condition to award. 
Whenever any information required of a recipient is in the exclusive 
possession of any other agency, institution, or person and that agency, 
institution, or person fails or refuses to furnish that information, the 
recipient shall certify this in its report and set forth the efforts 
which it has made to obtain the information. The sub-recipient in such 
case shall be subject to proceedings described under subpart H of this 
part.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons information regarding the provisions of this section 
and its applicability to the program under which the recipient receives 
Federal financial assistance. Information is to be made available to 
beneficiaries, participants, and other interested persons in a manner 
which the responsible Department officials find necessary to inform such 
persons

[[Page 935]]

of the protections against discrimination assured them by this part and 
the statutes to which this part applies.



Sec. 1040.103  [Reserved]



Sec. 1040.104  Complaint investigation.

    (a) The Director, FAPD, shall investigate complaints of 
discrimination that allege a violation of--
    (1) Title VI of the Civil Rights Act of 1964, Sec. 16 of the Federal 
Energy Administration Act of 1974, as amended, or Sec. 401 of the Energy 
Reorganization Act of 1974;
    (2) Title IX of the Education Amendments of 1972, as amended;
    (3) Section 504 of the Rehabilitation Act of 1973, as amended;
    (4) Age Discrimination Act of 1975, as amended, (reserved in this 
part);
    (5) Title VIII of the Civil Rights Act of 1968, as amended, 
(reserved in this part);
    (6) This part; and
    (7) Civil rights provisions of statutes administered pursuant to the 
DOE Organization Act, Pub. L. 95-91.
    (b) No complaint will be investigated if it is received by an 
appropriate Departmental official more than 180 days after the date of 
the alleged discrimination, unless the time for filing is extended by 
the Director, FAPD, for good cause shown. Where a complaint is accepted 
for investigation, the Director, FAPD, will initiate a DOE 
investigation. The Director, FAPD, who is responsible for the 
investigation, shall notify the complainant, in writing, if the 
complaint has been accepted or rejected.
    (c) The Director, FAPD, or his/her designee shall conduct 
investigations of complaints as follows:
    (1) Within 35 days of receipt of a complaint, the Director, FAPD, 
shall:
    (i) determine whether DOE has jurisdiction under paragraphs (a) and 
(b) of this section;
    (ii) If jurisdiction is not found, wherever possible, refer the 
complaint to the Federal agency with such jurisdiction and advise the 
complainant;
    (iii) If jurisdiction is found, notify the recipient alleged to be 
discriminating of receipt of the complaint; and
    (iv) Initiate the investigation.
    (2) The investigation will ordinarily be initiated by a letter 
requesting data pertinent to the complaint and advising the recipient 
of:
    (i) The nature of the complaint and, with the written consent of the 
complainant, the identity of the complainant. The identity of the 
complainant may be revealed by the Director, FAPD, OEO, without the 
complainant's written consent if the Director, FAPD, OEO, determines 
that such action is necessary for resolution of the complaint;
    (ii) The program or activities affected by the complaint;
    (iii) The opportunity to make, at any time prior to receipt of DOE's 
findings, a documentary submission responding to, rebutting, or denying 
the allegations made in the complaint; and
    (iv) The schedule under which the complaint will be investigated and 
a determination of compliance made.
    (3) Within 90 days of initiating the investigation, the Director, 
FAPD, shall advise the recipient, in writing of:
    (i) Preliminary findings;
    (ii) Where appropriate, recommendations for achieving voluntary 
compliance; and
    (iii) The opportunity to request DOE to engage in voluntary 
compliance negotiations prior to the Director's final determination of 
compliance or noncompliance. The Director or the Director's designee 
shall notify the Assistant Attorney General and the recipient of any 
matter where recommendations for achieving voluntary compliance are 
made.
    (4) If, within 45 days of the recipient's notification under 
paragraph (c)(3) of this section, the Director's (FAPD) recommendations 
for compliance are not met, or voluntary compliance is not secured, or 
the preliminary findings are not shown to be false, the matter will be 
forwarded to the Director, OEO, for a determination of compliance or 
noncompliance. The determination is to be made no later than 60 days 
after the recipient has been notified of the preliminary findings. If 
the Director makes a determination of noncompliance, the Department 
shall institute actions specified in subpart H.
    (5) Where the Director makes a formal determination of 
noncompliance,

[[Page 936]]

the recipient and the Assistant Attorney General shall be immediately 
advised, in writing, of the determination and of the fact that the 
recipient has an additional 10 days in which to come into voluntary 
compliance. If voluntary compliance has not been achieved within the 10 
days, the Director shall institute proceedings under subpart H. All 
agreements to come into voluntary compliance shall be in writing and 
signed by the Director, OEO, and an official who has authority to 
legally bind the recipient. The complainant shall also be notified of 
any action taken including the closing of the complaint or achievement 
of voluntary compliance.
    (6) If the complainant or party other than the Attorney General has 
filed suit in Federal or State court alleging the same discrimination 
alleged in a complaint to DOE, and if during DOE's investigation, the 
trial of that suit would be in progress, DOE will consult with the 
Assistant Attorney General and court records to determine the need to 
continue or suspend the investigation and will monitor the litigation 
through the court docket and contacts with the complainant. Upon receipt 
of notice that the court has made a finding of discrimination against a 
recipient that would constitute a violation of this part, the DOE may 
institute administrative proceedings as specified in subpart H after DOE 
has advised the recipient, in writing, of an opportunity to request 
voluntary compliance under this section. All agreements to come into 
voluntary compliance shall be in writing and signed by the Director and 
an official who has authority to legally bind the recipient.
    (7) The time limits listed in paragraphs (c)(1) through (c)(6) of 
this section shall be appropriately adjusted where DOE requests another 
Federal agency to act on the complaint. DOE is to monitor the progress 
of the matter through liaison with the other agency. Where the request 
to act does not result in timely resolution of the matter, DOE is to 
institute appropriate proceedings as required by this part.
    (d) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by the laws implemented in this part or because the 
complainant has made a complaint, testified, assisted, or participated 
in any manner in an investigation, proceeding, or hearing under this 
subpart. The identity of complainants is to be kept confidential except 
as determined by the Director, FAPD, to be necessary to carry out the 
purpose of this subpart, including investigations, hearings, or judicial 
proceedings arising thereunder.



                          Subpart H_Enforcement

                      Means of Effecting Compliance



Sec. 1040.111  Means available.

    If there appears to be a failure or threatened failure to comply 
with any of the provisions of this part, and if the noncompliance or 
threatened noncompliance cannot be corrected by voluntary means, 
compliance with this part may be effected by the suspension, termination 
of, or refusal to grant or to continue Federal financial assistance, or 
by any other means authorized by law. Such other means may include, but 
are not limited to:
    (a) Referral to the Department of Justice with a recommendation that 
appropriate proceedings be brought to enforce any rights of the United 
States under any law including the Civil Rights Act of 1964, other 
statutes to which this part applies, or any assurance or other 
contractual undertaking; and
    (b) Any applicable proceeding under State or local law.



Sec. 1040.112  Noncompliance with assurances.

    If an applicant fails or refuses to furnish an assurance required 
under Sec. 1040.4 of subpart A of this part, or otherwise fails or 
refuses to comply with a requirement imposed by this part, such as Sec. 
1040.102(c), subpart G of this part, action to refuse Federal financial 
assistance shall be taken in accordance with procedures of Sec. 
1040.114 of this subpart.

[[Page 937]]



Sec. 1040.113  Deferral.

    DOE may defer action on pending applications for assistance in such 
a case during pendency of administrative proceedings under Sec. 
1040.114 of this subpart.



Sec. 1040.114  Termination of or refusal to grant or to continue Federal financial assistance.

    No order suspending, terminating, or refusing to grant or continue 
Federal financial assistance is to become effective until:
    (a) Informational notice of the proposed order is given to the 
Executive Assistant to the Secretary, if the action is contemplated 
against a State or local government;
    (b) The Director has advised the applicant or recipient of his/her 
failure to comply and has determined that compliance cannot be secured 
by voluntary means. (It will be determined by the Director that 
compliance cannot be secured by voluntary means if it has not been 
secured within the time periods specifically set forth by this part.)
    (c) There has been an express finding on the record, after 
opportunity for hearing, of a failure by the applicant or recipient to 
comply with the requirement imposed by or under this part:
    (d) The FERC has notified the Secretary of its finding of 
noncompliance; and
    (e) The expiration of 30 days after the Secretary or a designee has 
filed with the committee of the House of Representatives and the 
committee of the Senate having legislative jurisdiction over the program 
involved, a full written report of the circumstances and the grounds for 
such action. Any action to suspend, terminate, or to refuse to grant or 
to continue Federal financial assistance is to be limited to the 
particular political entity or part of that entity or other applicant or 
recipient to whom the finding has been made and shall be limited in its 
effect to the particular program or part of the program in which the 
noncompliance has been found.



Sec. 1040.115  Other means authorized by law.

    No action to effect compliance by any other means authorized by law 
is to be taken until--
    (a) The Director has determined that compliance cannot be secured by 
voluntary means;
    (b) The recipient or other person has been notified by the Director, 
in writing, that it has been found in formal noncompliance and that it 
has 10 days before formal enforcement proceedings begin in which to 
enter into a written voluntary compliance agreement.
    (c) The expiration of at least ten (10) days from the mailing of the 
notice to the recipient or other person.

                         Opportunity for Hearing



Sec. 1040.121  Notice of opportunity for hearing.

    (a) Whenever an opportunity for hearing is required by Sec. 
1040.113, the Director, OEO, or his/her designee shall serve on the 
applicant or recipient, by registered, certified mail, or return receipt 
requested, a notice of opportunity for hearing which will:
    (1) Inform the applicant or recipient of the action proposed to be 
taken and of his/her right within twenty (20) days of the date of the 
notice of opportunity for hearing, or another period which may be 
specified in the notice, to request a hearing;
    (2) Set forth the alleged item or items of noncompliance with this 
part;
    (3) Specify the issues;
    (4) State that compliance with this part may be effected by an order 
providing for the termination of or refusal to grant or to continue 
assistance, as appropriate, under the program involved; and
    (5) Provide that the applicant or recipient may file a written 
answer with the Director, OEO, to the notice of opportunity for hearing 
under oath or affirmation within twenty (20) days of its date, or 
another period which may be specified in the notice.
    (b) An applicant or recipient may file an answer, and waive or fail 
to request a hearing, without waiving the requirement for findings of 
fact and conclusions of law or the right to seek review by the FERC in 
accordance with the

[[Page 938]]

provisions established by the FERC. At the time an answer is filed, the 
applicant or recipient may also submit written information or argument 
for the record if he/she does not request a hearing.
    (c) An answer or stipulation may consent to the entry of an order in 
substantially the form set forth in the notice of opportunity for 
hearing. The order may be entered by the General Counsel or his/her 
designee. The consent of the applicant or recipient to the entry of an 
order shall constitute a waiver by him/her of a right to:
    (1) A hearing under Sec. 902 of title IX of the Education Amendments 
of 1972, Section 602 of title VI of the Civil Rights Act of 1964, 
Section 16, Section 401 and Sec. 1040.113;
    (2) Findings of fact and conclusions of law; and
    (3) Seek review by the FERC.
    (d) The failure of an applicant or recipient to file an answer 
within the period prescribed or, if the applicant or recipient requests 
a hearing, his failure to appear at the hearing shall constitute a 
waiver by him/her of a right to:
    (1) A hearing under Section 902 of title IX of the Education 
Amendments of 1972, Section 602 of title VI of the Civil Rights Act of 
1964, Section 16, Section 401, and Sec. 1040.113;
    (2) Conclusions of law; and
    (3) Seek review by the FERC.

In the event of such a waiver, the Secretary or a designee may find the 
facts on the basis of the record available and enter an order in 
substantially the form set forth in the notice of opportunity for 
hearing.
    (e) An order entered in accordance with paragraph (c) or (d) of this 
section shall constitute the final decision of DOE unless the FERC, 
within forty-five (45) days after entry of the order, issues a 
subsequent decision which shall then constitute the final decision of 
DOE.
    (f) A copy of an order entered by the FERC official shall be mailed 
to the applicant or recipient and to the complainant, if any.



Sec. 1040.122  Request for hearing or review.

    Whenever an applicant or recipient requests a hearing or review in 
accordance with Sec. 1040.121(a)(1) or (b), the DOE General Counsel or 
his/her designee shall submit such request along with other appropriate 
documents to the FERC.



Sec. 1040.123  Consolidated or joint hearings.

    In cases in which the same or related facts are asserted to 
constitute noncompliance with this part with respect to two or more 
programs to which this part applies or noncompliance with this part and 
the regulations of one or more other Federal departments or agencies 
issued to implement the requirements of the laws cited in this part, the 
Secretary or a designee, in coordination with FERC may, by agreement 
with other departments or agencies, where applicable, provide for the 
conduct of consolidated or joint hearings and for the application to 
such hearings of rules of procedure not inconsistent with this part. 
Final decision in such cases, insofar as programs subject to this part 
are concerned, shall be made in accordance with procedures established 
by the FERC.



Sec. 1040.124  Responsibility of the Federal Energy Regulatory Commission.

    The FERC has authority under section 402(b) of the DOE Organization 
Act, Pub. L. 95-91, to promulgate regulations regarding the conduct of 
hearings to deny or terminate Federal financial assistance. Rules for 
conduct of hearings will be published by the FERC and will be placed in 
title 18 CFR.

                             Judicial Review



Sec. 1040.131  Judicial review.

    Final DOE actions taken under this part to withhold or terminate 
Federal financial assistance are subject to judicial review under the 
following laws:
    (a) Title VI--Section 603 of the Civil Rights Act of 1964;
    (b) Title IX--Section 903 of the Education Amendments of 1972;
    (c) Section 16, Section 401, Section 504--Pub. L. 89-554, 5 U.S.C. 
702;

[[Page 939]]

    (d) Section 419 and Section 420 of the Energy Conservation and 
Production Act of 1976, as amended.



   Sec. Appendix A to Part 1040--Federal Financial Assistance of the 
             Department of Energy to Which This Part Applies

    1. Access permits. Atomic Energy Act of 1954, as amended, Sections 
1, 2, 3 and 161(i), Public Law 83-703; 68 Stat. 919; 42 U.S.C. 2011-13, 
2201; and Title I Section 104(c) of the Energy Reorganization Act of 
1974, Public Law 93-438; 88 Stat. 1237; 42 U.S.C. 5814; Department of 
Energy Organization Act, 42 U.S.C. 7101; Public Law 95-91.
    2. Motion pictures film libraries. Atomic Energy Act of 1954, as 
amended, Public Law 83-703, Sections 3 and 141(b), (68 Stat. 919), 42 
U.S.C. 2013 and 2161; the Energy Reorganization Act of 1974, Public Law 
93-438, Title I, Sections 103 and 107, (88 Stat. 1240), 42 U.S.C. 5817; 
Department of Energy Organization Act, Public Law 95-91, Title I, 
Section 102, and Title III, Section 301, (19 Stat. 565), 42 U.S.C. 7101; 
the National Energy Extension Service Act, Title V, Public Law 95-39, 
(91 Stat. 191), 42 U.S.C. 7001.
    3. Granting of patent licenses. Atomic Energy Act of 1954, as 
amended, Sections 156 and 161(g); Public Law 83-703; 68 Stat. 919, 42 
U.S.C. 2186 and 2201; Federal Nonnuclear Energy Research and Development 
Act of 1974; Section 9(f)(g)(h); Public Law 93-577; 88 Stat. 1887; 42 
U.S.C. 5908(f)(g)(h); Department of Energy Organization Act, 42 U.S.C. 
7101; Public Law 95-91.
    4. University Laboratory Cooperative Program. Atomic Energy Act of 
1954, as amended, Section 31 (a) and (b); Public Law 83-703; 68 Stat. 
919; 42 U.S.C. 2051; and Title I, Section 107, of the Energy 
Reorganization Act of 1974; Public Law 93-438; 88 Stat. 1240; 42 U.S.C. 
5817; Department of Energy Organization Act, 42 U.S.C. 7101; Public Law 
95-91.
    5. Facility training institutes, short courses, and workshops on 
energy and environmental subjects. Atomic Energy Act of 1954, as 
amended, Section 31 (a) and (b); Public Law 83-703; 68 Stat. 919; 42 
U.S.C. 2051; and Title I, Section 107, of the Energy Reorganization Act 
of 1974; 42 U.S.C. 7101; Public Law 93-438; 88 Stat. 1240; 42 U.S.C. 
5817; Department of Energy Organization Act, 42 U.S.C. 7101; Public Law 
95-91.
    6. Reactor sharing and fuel assistance. Atomic Energy Act of 1954, 
as amended, Section 31 (a) and (b), Public Law 83-703; 68 Stat. 919; 42 
U.S.C. 2051; and Title I, Section 107, of the Energy Reorganization Act 
of 1974; Public Law 93-438, 88 Stat. 1240; 42 U.S.C. 5817; Department of 
Energy Organization Act, 42 U.S.C. 7101; Public Law 95-91.
    7. Traineeships for graduate students in energy related fields. 
Atomic Energy Act of 1954, as amended, Sections 31 (a) (b); Public Law 
83-703; 68 Stat. 919; 42 U.S.C. 2051; and Title I, Section 107, of the 
Energy Reorganization Act of 1974; Public Law 93-458; 88 Stat. 1240; 42 
U.S.C. 5817; Public Law 93-409, Section 12(a); Public Law 94-163, 
Section 337; Public Law 93-577, Section 4(d); Public Law 93-275, Section 
5; Public Law 95-39, Title V, Section 502(7); Department of Energy 
Organization Act, 42 U.S.C. 7101; Public Law 95-91.
    8. Energy related laboratory equipment grants. Atomic Energy Act of 
1954, as amended, Section 31 (a) and (b); Public Law 83-703; 68 Stat. 
919; 42 U.S.C. 2051; and Title I, Section 107, of the Energy 
Reorganization Act of 1974; Public Law 93-438; 88 Stat. 1240; 42 U.S.C. 
5817; Department of Energy Organization Act, 42 U.S.C. 7101; Public Law 
95-91.
    9. Information services exhibits, public speakers publications, 
reference and analysis. Atomic Energy Act of 1954, as amended, Section 3 
and 141b; Public Law 83-703; 68 Stat. 919; 42 U.S.C. 2013 and 2161; and 
Title I, Section 107, of the Energy Reorganization Act of 1974; Public 
Law 93-438; 88 Stat. 1240; 42 U.S.C. 5817; Department of Energy 
Organization Act, 42 U.S.C. 7101; Public Law 95-91.
    10. Payments in lieu of property taxes. Atomic Energy Act of 1954, 
as amended, Section 168; Public Law 83-703; 68 Stat. 919; 42 U.S.C. 
2208; and Title I, Section 107, of the Energy Reorganization Act of 
1974; Public Law 93-438; 88 Stat. 1240; 42 U.S.C. 5817; Department of 
Energy Organization Act; 42 U.S.C. 7101; Public Law 95-91.
    11. Radiological emergency assistance. Atomic Energy Act of 1954, as 
amended, Public Law 83-703; 68 Stat. 919; 42 U.S.C. 2011 et seq.; and 
Title I, Section 107, of the Energy Reorganization Act of 1974; Public 
Law 93-438; 88 Stat. 1240; 42 U.S.C. 5817; Department of Energy 
Organization Act, 42 U.S.C. 7101; Public Law 95-91.
    12. Nuclear industry seminars. Atomic Energy Act of 1954, as 
amended, Section 141(b); Public Law 83-703; 68 Stat. 919; 42 U.S.C. 
2161, and Title I, Section 107, of the Energy Reorganization Act of 
1974; Public Law 93-438, 88 Stat. 1240; 42 U.S.C. 5817; Department of 
Energy Organization Act, 42 U.S.C. 7101; Public Law 95-91.
    13. Work experience. Atomic Energy Act of 1954, as amended, Section 
3, Public Law 83-703; 68 Stat. 919; 42 U.S.C. 2013; and Title I, Section 
107, of the Energy Reorganization Act of 1974; Public Law 93-438; 88 
Stat. 1240; 42 U.S.C. 5817; Department of Energy Organization Act; 42 
U.S.C. 7101; Public Law 95-91.
    14. Citizens: Workshops. Atomic Energy Act of 1954, as amended, 
Public Law 83-703, Section 3 and 141(b), 68 Stat. 919; 42 U.S.C. 2013 
and 2161; the Energy Reorganization Act of 1974; Public Law 93-438, 
Title I, Section 103 and 107, 88 Stat. 1240; 42 U.S.C. 5817, Department 
of Energy Organization Act, Public Law 95-91, Title I, Section 102, and 
Title III, Section 301, 91 Stat. 565; 42 U.S.C. 7101; the

[[Page 940]]

National Energy Extension Service Act, Title V, Public Law 95-39, 91 
Stat. 191; 42 U.S.C. 7001.
    15. Research and development in energy conservation. Atomic Energy 
Act of 1954, as amended, Section 31; Public Law 83-703; 68 Stat. 919; 42 
U.S.C. 2051; and Title I, Section 107, of the Energy Reorganization Act 
of 1974; Public Law 93-438; 88 Stat. 1240; Department of Energy 
Organization Act, 42 U.S.C. 7101; Public Law 95-91.
    16. Energy related inventions. Section 14 of the Federal Non-Nuclear 
Energy Research and Development Act of 1974; Public Law 93-577; 68 Stat. 
1894; 42 U.S.C. 5913; Department of Energy Organization Act, 42 U.S.C. 
7101; Public Law 95-91.
    17. Research and development fission, fossil, solar, geothermal, 
electric and storage systems, magnetic fusion. Amendments to the Energy 
Reorganization Act of 1974 and the Atomic Energy Act of 1954; Department 
of Energy Organization Act, 42 U.S.C. 7101; Public Law 95-91.
    18. Energy Information Administration Clearinghouse (EIAC). 
Department of Energy Organization Act, Section 205; Public Law 95-91.
    19. National Energy Information Center (NEIC). Federal Energy 
Administration Act of 1974, as amended, Section 20(a)(4); Public Law 93-
175; 15 U.S.C. 779; Department of Energy Organization Act, Section 301; 
Public Law 95-91.
    20. Grants for Offices of Consumer Services. Title II, Section 205 
of the Energy Conservation and Production Act, Public Law 94-385; 
Department of Energy Organization Act, 42 U.S.C. 7101; Public Law 95-91.
    21. State Energy Conservation Program. Title III, Sections 361-366, 
Part C of the Energy Policy and Conservation Act, Public Law 94-163; 42 
U.S.C. 6321-6326; Department of Energy Organization Act, 42 U.S.C. 7101; 
Public Law 95-91.
    22. Weatherization Assistance Program for low income persons. Title 
IV, Part A of the Energy Conservation and Production Act, Public Law 94-
385; 42 U.S.C. 6861-6870; Department of Energy Organization Act, 42 
U.S.C. 7101; Public Law 95-91.
    23. Supplemental State Energy Conservation Program. Title IV, 
Section 432(a), Part B of the Energy Conservation and Production Act of 
1976, Public Law 94-385; 42 U.S.C. 6801 et seq.; Department of Energy 
Organization Act, 42 U.S.C. 7101; Public Law 95-91.
    24. Public education in energy. Atomic Energy Act of 1954, as 
amended, Sections 31(a) and 31(b); Public Law 83-703; 68 Stat. 919; 42 
U.S.C. 2051; and Title I, Section 107 of the Energy Reorganization Act 
of 1974; Public Law 93-458; 88 Stat. 1240; 42 U.S.C. 5817; Public Law 
93-409, Section 12(a); Public Law 94-163, Section 337; Public Law 93-
577, Section 4(d); Public Law 93-275, Section 5; Public Law 95-39, Title 
V, Section 502(7); Department of Energy Organization Act, 42 U.S.C. 
7101; Public Law 95-91.
    25. Special studies and projects in energy education and training. 
Atomic Energy Act of 1954, as amended, Sections 31(a) and 31(b); Public 
Law 83-703; 68 Stat. 919; 42 U.S.C. 2051; and Title I, Section 107 of 
the Energy Reorganization Act of 1974; Public Law 93-458; 88 Stat. 1240; 
42 U.S.C. 5817; Public Law 93-409, Section 12(a); Public Law 93-163, 
Section 337; Public Law 93-577, Section 4(d); Public Law 93-275, Section 
5; Public Law 95-39, Title V, Section 502(7).
    26. Research and development in biomedical and environmental 
sciences. Atomic Energy Act of 1954, as amended, Section 31; Public Law 
83-703; 68 Stat. 919; 42 U.S.C. 2051; Title I, Section 107, of the 
Energy Reorganization Act of 1974; Public Law 93-438; 88 Stat. 1240; 42 
U.S.C. 5817; Department of Energy Organization Act, 42 U.S.C. 7101; 
Public Law 95-91.
    27. Preface (Pre-Freshman and Cooperative Education for Minorities 
In Engineering). Atomic Energy Act of 1954, as amended, Sections 31(a) 
and 31(b); Public Law 83-703; 68 Stat. 919; 42 U.S.C. 2051; and Title I, 
Section 107 of the Energy Reorganization Act of 1974; Public Law 93-458; 
88 Stat. 1240; 42 U.S.C. 5817; Department of Energy Organization Act, 
Public Law 95-91, Sections 102 and 203; Public Law 93-409, Section 
12(a); Public Law 94-163, Section 337; Public Law 93-577, Section 4(d); 
Public Law 93-275, Section 5; Public Law 95-39, Title V, Section 502(7).
    28. Materials allocation. Section 104, Energy Policy and 
Conservation Act (EPCA), Section 101(c) Defense Production Act of 1950, 
as amended (DPA), 50 U.S.C. 2071(c), Section 7, Executive Order 11912, 
April 13, 1976. Defense Mobilization Order No. 13, September 22, 1976, 
41 FR 43720; Department of Commerce, Bureau of Domestic Commerce, 
Delegation 4, 41 FR 52331, MA Regulations 10 CFR 216; Department of 
Energy Organization Act, 42 U.S.C. 7101; Public Law 95-91.
    29. Basic energy sciences, high energy and nuclear physics, and 
advanced technology and assessment projects. Atomic Energy Act of 1954, 
as amended, Section 31; Public Law 83-703; 68 Stat. 919; 42 U.S.C. 2051; 
and Title I, Section 107, of the Energy Reorganization Act of 1974; 
Public Law 93-438; 88 Stat. 1240; 42 U.S.C. 5817; Department of Energy 
Organization Act; 42 U.S.C. 7101; Public Law 95-91.
    30. Energy Extension Service. National Energy Extension Service Act; 
Title V, Public Law 95-39; Department of Energy Organization Act, 42 
U.S.C. 7101; Public Law 95-91.

[[Page 941]]



PART 1041_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF ENERGY--Table of Contents



Sec.
1041.101 Purpose.
1041.102 Application.
1041.103 Definitions.
1041.104-1041.109 [Reserved]
1041.110 Self-evaluation.
1041.111 Notice.
1041.112-1041.129 [Reserved]
1041.130 General prohibitions against discrimination.
1041.131-1041.139 [Reserved]
1041.140 Employment.
1041.141-1041.148 [Reserved]
1041.149 Program accessibility: Discrimination prohibited.
1041.150 Program accessibility: Existing facilities.
1041.151 Program accessibility: New construction and alterations.
1041.152-1041.159 [Reserved]
1041.160 Communications.
1041.161-1041.169 [Reserved]
1041.170 Compliance procedures.
1041.171-1041.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 4574, Feb. 5, 1986, unless otherwise noted. 
Redesignated at 52 FR 1902, Jan. 16, 1987.



Sec. 1041.101  Purpose.

    This part effectuates section 119 of the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978, which amended section 504 of the Rehabilitation Act of 1973 to 
prohibit discrimination on the basis of handicap in programs or 
activities conducted by Executive agencies or the United States Postal 
Service.



Sec. 1041.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 1041.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    As used in this definition, the phrase:
    (l) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one of more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited

[[Page 942]]

to, such diseases and conditions as orthopedic, visual, speech, and 
hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, 
multiple sclerosis, cancer, heart disease, diabetes, mental retardation, 
emotional illness, and drug addition and alcholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in subparagraph (1) of 
this definition but is treated by the agency as having such an 
impairment.
    Qualified handicapped person means--
    (1) With respect to any agency program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature; or
    (2) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity.
    (3) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 1041.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.

[51 FR 4574, Feb. 5, 1986; 51 FR 7543, MAr. 5, 1986. Redesignated at 52 
FR 1902, Jan. 16, 1987]



Sec. Sec. 1041.104-1041.109  [Reserved]



Sec. 1041.110  Self-evaluation.

    (a) The agency shall, by April 9, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until three years following the completion of 
the self-evaluation, maintain on file and make available for public 
inspections:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 1041.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the head of the agency 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.

[[Page 943]]



Sec. Sec. 1041.112-1041.129  [Reserved]



Sec. 1041.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualfied handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



Sec. Sec. 1041.131-1041.139  [Reserved]



Sec. 1041.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements, and procedures 
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally conducted programs or 
activities.

[[Page 944]]



Sec. Sec. 1041.141-1041.148  [Reserved]



Sec. 1041.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 1041.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 1041.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons; or
    (2) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 1041.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods. The agency may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
handicapped persons. The agency is nor required to make structural 
changes in existing facilities where other methods are effective in 
achieving compliance with this section. The agency, in making 
alterations to existing buildings, shall meet accessibility requirements 
to the extent compelled by the Architectural Barriers Act of 1968, as 
amended (42 U.S.C. 4151-4157), and any regulations implementing it. In 
choosing among available methods for meeting the requirements of this 
section, the agency shall give priority to those methods that offer 
programs and activities to qualified handicapped persons in the most 
integrated setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by June 6, 1986, except that 
where structural changes in facilities are undertaken, such changes 
shall be made by April 7, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by October 7, 1986, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;

[[Page 945]]

    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.

[51 FR 4574, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986. Redesignated at 52 
FR 1902, Jan. 16, 1987]



Sec. 1041.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
handicapped persons. The definitions, requirements, and standards of the 
Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 
CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. Sec. 1041.152-1041.159  [Reserved]



Sec. 1041.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 1041.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the agency head or 
his or her designee after considering all agency resources available for 
use in the funding and operation of the conducted program or activity, 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, handicapped persons receive the benefits and services 
of the program or activity.



Sec. Sec. 1041.161-1041.169  [Reserved]



Sec. 1041.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section

[[Page 946]]

504 with respect to employment according to the procedures established 
by the Equal Employment Opportunity Commission in 29 CFR part 1613 
pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 
791).
    (c) The Manager of Federally Assisted Programs shall be responsible 
for coordinating implementing of this section. Complaints may be sent to 
Director of Equal Opportunity, U.S. Department of Energy, Room 4B-112, 
1000 Independence Avenue, SW., Washington, DC 20585, (202) 586-2218.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found;
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 1041.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[51 FR 4574, Feb. 5, 1986. Redesignated and amended at 52 FR 1902, Jan. 
16, 1987]



Sec. Sec. 1041.171-1041.999  [Reserved]



PART 1042_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents



                         Subpart A_Introduction

Sec.
1042.100 Purpose and effective date.
1042.105 Definitions.
1042.110 Remedial and affirmative action and self-evaluation.
1042.115 Assurance required.
1042.120 Transfers of property.
1042.125 Effect of other requirements.
1042.130 Effect of employment opportunities.
1042.135 Designation of responsible employee and adoption of grievance 
          procedures.
1042.140 Dissemination of policy.

                           Subpart B_Coverage

1042.200 Application.
1042.205 Educational institutions and other entities controlled by 
          religious organizations.
1042.210 Military and merchant marine educational institutions.
1042.215 Membership practices of certain organizations.
1042.220 Admissions.
1042.225 Educational institutions eligible to submit transition plans.
1042.230 Transition plans.

[[Page 947]]

1042.235 Statutory amendments.

     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited

1042.300 Admission.
1042.305 Preference in admission.
1042.310 Recruitment.

 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited

1042.400 Education programs or activities.
1042.405 Housing.
1042.410 Comparable facilities.
1042.415 Access to course offerings.
1042.420 Access to schools operated by LEAs.
1042.425 Counseling and use of appraisal and counseling materials.
1042.430 Financial assistance.
1042.435 Employment assistance to students.
1042.440 Health and insurance benefits and services.
1042.445 Marital or parental status.
1042.450 Athletics.
1042.455 Textbooks and curricular material.

Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited

1042.500 Employment.
1042.505 Employment criteria.
1042.510 Recruitment.
1042.515 Compensation.
1042.520 Job classification and structure.
1042.525 Fringe benefits.
1042.530 Marital or parental status.
1042.535 Effect of state or local law or other requirements.
1042.540 Advertising.
1042.545 Pre-employment inquiries.
1042.550 Sex as a bona fide occupational qualification.

                       Subpart F_Other Provisions

1042.600 Covered programs.
1042.605 Enforcement procedures.

    Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688; 42 
U.S.C. 7101 et seq.; and 50 U.S.C. 2401 et seq.

    Source: 66 FR 4630, Jan. 18, 2001, unless otherwise noted.



                         Subpart A_Introduction



Sec. 1042.100  Purpose and effective date.

    The purpose of these Title IX regulations is to effectuate Title IX 
of the Education Amendments of 1972, as amended (except sections 904 and 
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 
1688), which is designed to eliminate (with certain exceptions) 
discrimination on the basis of sex in any education program or activity 
receiving Federal financial assistance, whether or not such program or 
activity is offered or sponsored by an educational institution as 
defined in these Title IX regulations. The effective date of these Title 
IX regulations is February 20, 2001.



Sec. 1042.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate, transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Department of Energy, or 
by a recipient, as a condition to becoming a recipient of Federal 
financial assistance.
    Designated agency official means the Director, Office of Civil 
Rights and Diversity or any official to whom the Director's functions 
under this part are relegated.
    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient that is an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:

[[Page 948]]

    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a technical field, whether or not the 
school or institution offers certificates, diplomas, or degrees and 
whether or not it offers full-time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom Federal financial assistance is extended directly or 
through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29

[[Page 949]]

(20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth in this 10 CFR 
Part 1042.
    Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the Education 
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational 
institution operates in making the transition from being an educational 
institution that admits only students of one sex to being one that 
admits students of both sexes without discrimination.



Sec. 1042.110  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the designated agency official finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity, such recipient shall take such remedial 
action as the designated agency official deems necessary to overcome the 
effects of such discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action consistent with law to overcome 
the effects of conditions that resulted in limited participation therein 
by persons of a particular sex. Nothing in these Title IX regulations 
shall be interpreted to alter any affirmative action obligations that a 
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., 
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as 
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
    (c) Self-evaluation. Each recipient education institution shall, 
within one year of February 20, 2001:
    (1) Evaluate, in terms of the requirements of these Title IX 
regulations, its current policies and practices and the effects thereof 
concerning admission of students, treatment of students, and employment 
of both academic and non-academic personnel working in connection with 
the recipient's education program or activity;
    (2) Modify any of these policies and practices that do not or may 
not meet the requirements of these Title IX regulations; and
    (3) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted or may have resulted from adherence to 
these policies and practices.
    (d) Availability of self-evaluation and related materials. 
Recipients shall maintain on file for at least three years following 
completion of the evaluation required under paragraph (c) of this 
section, and shall provide to the designated agency official upon 
request, a description of any modifications made pursuant to paragraph 
(c)(2) of this section and of any remedial steps taken pursuant to 
paragraph (c)(3) of this section.



Sec. 1042.115  Assurance required.

    (a) General. Either at the application stage or the award stage, the 
Department of Energy must ensure that applications for Federal financial 
assistance or awards of Federal financial assistance contain, be 
accompanied by, or be covered by a specifically identified assurance 
from the applicant or recipient, satisfactory to the designated agency 
official, that each education program or activity operated by the 
applicant or recipient and to which these Title IX regulations apply 
will be operated in compliance with these Title IX regulations. An 
assurance of compliance with these Title IX regulations shall not be 
satisfactory to the designated agency official if the applicant or 
recipient to whom such assurance applies fails to commit itself to take 
whatever remedial action is necessary in accordance with Sec. 
1042.110(a) to eliminate existing discrimination on the basis of sex or 
to eliminate the effects of past discrimination whether occurring prior 
to or subsequent to the submission to the designated agency official of 
such assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used

[[Page 950]]

to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of the 
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec. 1042.120  Transfers of property.

    If a recipient sells or otherwise transfers property financed in 
whole or in part with Federal financial assistance to a transferee that 
operates any education program or activity, and the Federal share of the 
fair market value of the property is not upon such sale or transfer 
properly accounted for to the Federal Government, both the transferor 
and the transferee shall be deemed to be recipients, subject to the 
provisions of Sec. Sec. 1042.205 through 1042.235(a).



Sec. 1042.125  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
these Title IX regulations are independent of, and do not alter, 
obligations not to discriminate on the basis of sex imposed by Executive 
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive 
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive 
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive 
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public 
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any State or local law or other requirement that would 
render any applicant or student ineligible, or limit the eligibility of 
any applicant or student, on the basis of sex, to practice any 
occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any rule or regulation of any organization, club, athletic 
or other league, or association that would render any applicant or 
student ineligible to participate or limit the eligibility or 
participation of any applicant or student, on the basis of sex, in any 
education program or activity operated by a recipient and that receives 
Federal financial assistance.



Sec. 1042.130  Effect of employment opportunities.

    The obligation to comply with these Title IX regulations is not 
obviated or alleviated because employment opportunities in any 
occupation or profession are or may be more limited for members of one 
sex than for members of the other sex.



Sec. 1042.135  Designation of responsible employee and adoption of grievance procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to comply with 
and carryout its responsibilities under these Title IX regulations, 
including any investigation of any complaint communicated to such 
recipient alleging its noncompliance with these Title IX regulations or 
alleging any actions that would be prohibited by these Title IX 
regulations.

[[Page 951]]

The recipient shall notify all its students and employees of the name, 
office address, and telephone number of the employee or employees 
appointed pursuant to this paragraph.
    (b) Complaint procedure of recipient. A recipient shall adopt and 
publish grievance procedures providing for prompt and equitable 
resolution of student and employee complaints alleging any action that 
would be prohibited by these Title IX regulations.



Sec. 1042.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission and 
employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made in 
such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Sec. Sec. 1042.300 through 1042.310 do not apply to the 
recipient, and that inquiries concerning the application of Title IX and 
these Title IX regulations to such recipient may be referred to the 
employee designated pursuant to Sec. 1042.135, or to the designated 
agency official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of February 20, 2001 or 
of the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (ii) Memoranda or other written communications distributed to every 
student and employee of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of the policy described in paragraph (a) of this section in 
each announcement, bulletin, catalog, or application form that it makes 
available to any person of a type, described in paragraph (a) of this 
section, or which is otherwise used in connection with the recruitment 
of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in paragraph (b)(1) of this section that suggests, by 
text or illustration, that such recipient treats applicants, students, 
or employees differently on the basis of sex except as such treatment is 
permitted by these Title IX regulations.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b)(1) of this section, and shall apprise each of its 
admission and employment recruitment representatives of the policy of 
nondiscrimination described in paragraph (a) of this section, and shall 
require such representatives to adhere to such policy.



                           Subpart B_Coverage



Sec. 1042.200  Application.

    Except as provided in Sec. Sec. 1042.205 through 1042.235(a), these 
Title IX regulations apply to every recipient and to each education 
program or activity operated by such recipient that receives Federal 
financial assistance.



Sec. 1042.205  Educational institutions and other entities controlled by religious organizations.

    (a) Exemption. These Title IX regulations do not apply to any 
operation of an educational institution or other entity that is 
controlled by a religious organization to the extent that application of 
these Title IX regulations would not be consistent with the religious 
tenets of such organization.

[[Page 952]]

    (b) Exemption claims. An educational institution or other entity 
that wishes to claim the exemption set forth in paragraph (a) of this 
section shall do so by submitting in writing to the designated agency 
official a statement by the highest-ranking official of the institution, 
identifying the provisions of these Title IX regulations that conflict 
with a specific tenet of the religious organization.



Sec. 1042.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training of individuals for a 
military service of the United States or for the merchant marine.



Sec. 1042.215  Membership practices of certain organizations.

    (a) Social fraternities and sororities. These Title IX regulations 
do not apply to the membership practices of social fraternities and 
sororities that are exempt from taxation under section 501(a) of the 
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership 
of which consists primarily of students in attendance at institutions of 
higher education.
    (b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These 
Title IX regulations do not apply to the membership practices of the 
Young Men's Christian Association (YMCA), the Young Women's Christian 
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire 
Girls.
    (c) Voluntary youth service organizations. These Title IX 
regulations do not apply to the membership practices of a voluntary 
youth service organization that is exempt from taxation under section 
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the 
membership of which has been traditionally limited to members of one sex 
and principally to persons of less than nineteen years of age.



Sec. 1042.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Sec. Sec. 1042.225 and 1042.230, and Sec. Sec. 1042.300 
through 1042.310, each administratively separate unit shall be deemed to 
be an educational institution.
    (c) Application of Sec. Sec. 1042.300 through 1042.310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec. 1042.300 
through 1042.310 apply to each recipient. A recipient to which 
Sec. Sec. 1042.300 through 1042.310 apply shall not discriminate on the 
basis of sex in admission or recruitment in violation of Sec. Sec. 
1042.300 through 1042.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec. 1042.300 through 1042.310 apply only to institutions of 
vocational education, professional education, graduate higher education, 
and public institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. 
Sec. Sec. 1042.300 through 1042.310 do not apply to any public 
institution of undergraduate higher education that traditionally and 
continually from its establishment has had a policy of admitting 
students of only one sex.



Sec. 1042.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec. 1042.300 through 1042.310 apply that:
    (1) Admitted students of only one sex as regular students as of June 
23, 1972; or
    (2) Admitted students of only one sex as regular students as of June 
23, 1965, but thereafter admitted, as regular students, students of the 
sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this section applies shall not discriminate on the basis of sex in 
admission or recruitment in violation of Sec. Sec. 1042.300 through 
1042.310.



Sec. 1042.230  Transition plans.

    (a) Submission of plans. An institution to which Sec. 1042.225 
applies and that is composed of more than one administratively separate 
unit may submit either a single transition plan applicable to

[[Page 953]]

all such units, or a separate transition plan applicable to each such 
unit.
    (b) Content of plans. In order to be approved by the Secretary of 
Education, a transition plan shall:
    (1) State the name, address, and Federal Interagency Committee on 
Education Code of the educational institution submitting such plan, the 
administratively separate units to which the plan is applicable, and the 
name, address, and telephone number of the person to whom questions 
concerning the plan may be addressed. The person who submits the plan 
shall be the chief administrator or president of the institution, or 
another individual legally authorized to bind the institution to all 
actions set forth in the plan.
    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to admitting 
students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected to 
apply for, be admitted to, and enter each class during the period 
covered by the plan.
    (c) Nondiscrimination. No policy or practice of a recipient to which 
Sec. 1042.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec. 1042.300 through 
1042.310 unless such treatment is necessitated by an obstacle identified 
in paragraph (b)(3) of this section and a schedule for eliminating that 
obstacle has been provided as required by paragraph (b)(4) of this 
section.
    (d) Effects of past exclusion. To overcome the effects of past 
exclusion of students on the basis of sex, each educational institution 
to which Sec. 1042.225 applies shall include in its transition plan, 
and shall implement, specific steps designed to encourage individuals of 
the previously excluded sex to apply for admission to such institution. 
Such steps shall include instituting recruitment programs that emphasize 
the institution's commitment to enrolling students of the sex previously 
excluded.



Sec. 1042.235  Statutory amendments.

    (a) This section, which applies to all provisions of these Title IX 
regulations, addresses statutory amendments to Title IX.
    (b) These Title IX regulations shall not apply to or preclude:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Boys State 
conference, Boys Nation conference, Girls State conference, or Girls 
Nation conference;
    (2) Any program or activity of a secondary school or educational 
institution specifically for:
    (i) The promotion of any Boys State conference, Boys Nation 
conference, Girls State conference, or Girls Nation conference; or
    (ii) The selection of students to attend any such conference;
    (3) Father-son or mother-daughter activities at an educational 
institution or in an education program or activity, but if such 
activities are provided for students of one sex, opportunities for 
reasonably comparable activities shall be provided to students of the 
other sex;
    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or

[[Page 954]]

    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other post-secondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other post-secondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a ``program or activity'' subject to 
these Title IX regulations if the college, university, or other 
institution receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.
    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.



     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited



Sec. 1042.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be subjected to discrimination in admission, by any 
recipient to which Sec. Sec. 1042.300 through 1042.310 apply, except as 
provided in Sec. Sec. 1042.225 and 1042.230.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which Sec. Sec. 1042.300 through 1042.310 
apply shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the

[[Page 955]]

basis of sex unless the use of such test or criterion is shown to 
predict validly success in the education program or activity in question 
and alternative tests or criteria that do not have such a 
disproportionately adverse effect are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
Sec. Sec. 1042.300 through 1042.310 apply:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant that 
treats persons differently on the basis of sex;
    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice that so 
discriminates or excludes;
    (3) Subject to Sec. 1042.235(d), shall treat disabilities related 
to pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom in the same manner and under the same policies as any other 
temporary disability or physical condition; and
    (4) Shall not make pre-admission inquiry as to the marital status of 
an applicant for admission, including whether such applicant is ``Miss'' 
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of 
an applicant for admission, but only if such inquiry is made equally of 
such applicants of both sexes and if the results of such inquiry are not 
used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 1042.305  Preference in admission.

    A recipient to which Sec. Sec. 1042.300 through 1042.310 apply 
shall not give preference to applicants for admission, on the basis of 
attendance at any educational institution or other school or entity that 
admits as students only or predominantly members of one sex, if the 
giving of such preference has the effect of discriminating on the basis 
of sex in violation of Sec. Sec. 1042.300 through 1042.310.



Sec. 1042.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec. 
1042.300 through 1042.310 apply shall not discriminate on the basis of 
sex in the recruitment and admission of students. A recipient may be 
required to undertake additional recruitment efforts for one sex as 
remedial action pursuant to Sec. 1042.110(a), and may choose to 
undertake such efforts as affirmative action pursuant to Sec. 
1042.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec. 1042.300 through 1042.310 apply shall not recruit primarily 
or exclusively at educational institutions, schools, or entities that 
admit as students only or predominantly members of one sex, if such 
actions have the effect of discriminating on the basis of sex in 
violation of Sec. Sec. 1042.300 through 1042.310.



 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited



Sec. 1042.400  Education programs or activities.

    (a) General. Except as provided elsewhere in these Title IX 
regulations, no person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any academic, extracurricular, research, 
occupational training, or other education program or activity operated 
by a recipient that receives Federal financial assistance. Sections 
1042.400 through 1042.455 do not apply to actions of a recipient in 
connection with admission of its students to an education program or 
activity of a recipient to which Sec. Sec. 1042.300 through 1042.310 do 
not apply, or an entity, not a recipient, to which Sec. Sec. 1042.300 
through 1042.310 would not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec. 1042.400 
through 1042.455, in providing any aid, benefit, or service to a 
student, a recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;

[[Page 956]]

    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;
    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees;
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education program or activity 
not operated wholly by such recipient, or that facilitates, permits, or 
considers such participation as part of or equivalent to an education 
program or activity operated by such recipient, including participation 
in educational consortia and cooperative employment and student-teaching 
assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that these Title IX regulations would prohibit such 
recipient from taking; and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.



Sec. 1042.405  Housing.

    (a) Generally. A recipient shall not, on the basis of sex, apply 
different rules or regulations, impose different fees or requirements, 
or offer different services or benefits related to housing, except as 
provided in this section (including housing provided only to married 
students).
    (b) Housing provided by recipient. (1) A recipient may provide 
separate housing on the basis of sex.
    (2) Housing provided by a recipient to students of one sex, when 
compared to that provided to students of the other sex, shall be as a 
whole:
    (i) Proportionate in quantity to the number of students of that sex 
applying for such housing; and
    (ii) Comparable in quality and cost to the student.
    (c) Other housing. (1) A recipient shall not, on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of housing other than that provided by such recipient.
    (2)(i) A recipient which, through solicitation, listing, approval of 
housing, or otherwise, assists any agency, organization, or person in 
making housing available to any of its students, shall take such 
reasonable action as may be necessary to assure itself that such housing 
as is provided to students of one sex, when compared to that provided to 
students of the other sex, is as a whole:
    (A) Proportionate in quantity; and
    (B) Comparable in quality and cost to the student.
    (ii) A recipient may render such assistance to any agency, 
organization,

[[Page 957]]

or person that provides all or part of such housing to students of only 
one sex.



Sec. 1042.410  Comparable facilities.

    A recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.



Sec. 1042.415  Access to course offerings.

    (a) A recipient shall not provide any course or otherwise carry out 
any of its education program or activity separately on the basis of sex, 
or require or refuse participation therein by any of its students on 
such basis, including health, physical education, industrial, business, 
vocational, technical, home economics, music, and adult education 
courses.
    (b)(1) With respect to classes and activities in physical education 
at the elementary school level, the recipient shall comply fully with 
this section as expeditiously as possible but in no event later than one 
year from February 20, 2001. With respect to physical education classes 
and activities at the secondary and post-secondary levels, the recipient 
shall comply fully with this section as expeditiously as possible but in 
no event later than three years from February 20, 2001.
    (2) This section does not prohibit grouping of students in physical 
education classes and activities by ability as assessed by objective 
standards of individual performance developed and applied without regard 
to sex.
    (3) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball, and other 
sports the purpose or major activity of which involves bodily contact.
    (4) Where use of a single standard of measuring skill or progress in 
a physical education class has an adverse effect on members of one sex, 
the recipient shall use appropriate standards that do not have such 
effect.
    (5) Portions of classes in elementary and secondary schools, or 
portions of education programs or activities, that deal exclusively with 
human sexuality may be conducted in separate sessions for boys and 
girls.
    (6) Recipients may make requirements based on vocal range or quality 
that may result in a chorus or choruses of one or predominantly one sex.



Sec. 1042.420  Access to schools operated by LEAs.

    A recipient that is a local educational agency shall not, on the 
basis of sex, exclude any person from admission to:
    (a) Any institution of vocational education operated by such 
recipient; or
    (b) Any other school or educational unit operated by such recipient, 
unless such recipient otherwise makes available to such person, pursuant 
to the same policies and criteria of admission, courses, services, and 
facilities comparable to each course, service, and facility offered in 
or through such schools.



Sec. 1042.425  Counseling and use of appraisal and counseling materials.

    (a) Counseling. A recipient shall not discriminate against any 
person on the basis of sex in the counseling or guidance of students or 
applicants for admission.
    (b) Use of appraisal and counseling materials. A recipient that uses 
testing or other materials for appraising or counseling students shall 
not use different materials for students on the basis of their sex or 
use materials that permit or require different treatment of students on 
such basis unless such different materials cover the same occupations 
and interest areas and the use of such different materials is shown to 
be essential to eliminate sex bias. Recipients shall develop and use 
internal procedures for ensuring that such materials do not discriminate 
on the basis of sex. Where the use of a counseling test or other 
instrument results in a substantially disproportionate number of members 
of one sex in any particular course of study or classification, the 
recipient shall take such action as is necessary to assure itself that 
such disproportion is not the result of discrimination in the instrument 
or its application.

[[Page 958]]

    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one sex, the recipient shall take such action as is 
necessary to assure itself that such disproportion is not the result of 
discrimination on the basis of sex in counseling or appraisal materials 
or by counselors.



Sec. 1042.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or source, apply different criteria, or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of sex; 
or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.
    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aid, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students of each sex participating in interscholastic or 
intercollegiate athletics.
    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic teams 
for members of each sex to the extent consistent with this paragraph (c) 
and Sec. 1042.450.



Sec. 1042.435  Employment assistance to students.

    (a) Assistance by recipient in making available outside employment. 
A recipient that assists any agency, organization, or person in making 
employment available to any of its students:
    (1) Shall assure itself that such employment is made available 
without discrimination on the basis of sex; and
    (2) Shall not render such services to any agency, organization, or 
person that discriminates on the basis of sex in its employment 
practices.
    (b) Employment of students by recipients. A recipient that employs 
any of its students shall not do so in a manner that violates Sec. Sec. 
1042.500 through 1042.550.



Sec. 1042.440  Health and insurance benefits and services.

    Subject to Sec. 1042.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall not discriminate on the basis of sex, or 
provide such benefit, service, policy, or plan in a manner that would 
violate Sec. Sec. 1042.500 through 1042.550 if it were

[[Page 959]]

provided to employees of the recipient. This section shall not prohibit 
a recipient from providing any benefit or service that may be used by a 
different proportion of students of one sex than of the other, including 
family planning services. However, any recipient that provides full 
coverage health service shall provide gynecological care.



Sec. 1042.445  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status that treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or activity, including any class or extracurricular 
activity, on the basis of such student's pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom, unless the 
student requests voluntarily to participate in a separate portion of the 
program or activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation as long as such a 
certification is required of all students for other physical or 
emotional conditions requiring the attention of a physician.
    (3) A recipient that operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in paragraph 
(b)(1) of this section, shall ensure that the separate portion is 
comparable to that offered to non-pregnant students.
    (4) Subject to Sec. 1042.235(d), a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy and recovery 
therefrom in the same manner and under the same policies as any other 
temporary disability with respect to any medical or hospital benefit, 
service, plan, or policy that such recipient administers, operates, 
offers, or participates in with respect to students admitted to the 
recipient's educational program or activity.
    (5) In the case of a recipient that does not maintain a leave policy 
for its students, or in the case of a student who does not otherwise 
qualify for leave under such a policy, a recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy, and 
recovery therefrom as a justification for a leave of absence for as long 
a period of time as is deemed medically necessary by the student's 
physician, at the conclusion of which the student shall be reinstated to 
the status that she held when the leave began.



Sec. 1042.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person, or otherwise be discriminated against in any 
interscholastic, intercollegiate, club, or intramural athletics offered 
by a recipient, and no recipient shall provide any such athletics 
separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. However, 
where a recipient operates or sponsors a team in a particular sport for 
members of one sex but operates or sponsors no such team for members of 
the other sex, and athletic opportunities for members of that sex have 
previously been limited, members of the excluded sex must be allowed to 
try out for the team offered unless the sport involved is a contact 
sport. For the purposes of these Title IX regulations, contact sports 
include boxing, wrestling, rugby, ice hockey, football, basketball, and 
other sports the purpose or major activity of which involves bodily 
contact.
    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the designated 
agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively

[[Page 960]]

accommodate the interests and abilities of members of both sexes;
    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;
    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;
    (vii) Provision of locker rooms, practice, and competitive 
facilities;
    (viii) Provision of medical and training facilities and services;
    (ix) Provision of housing and dining facilities and services;
    (x) Publicity.
    (2) For purposes of paragraph (c)(1) of this section, unequal 
aggregate expenditures for members of each sex or unequal expenditures 
for male and female teams if a recipient operates or sponsors separate 
teams will not constitute noncompliance with this section, but the 
designated agency official may consider the failure to provide necessary 
funds for teams for one sex in assessing equality of opportunity for 
members of each sex.
    (d) Adjustment period. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
elementary school level shall comply fully with this section as 
expeditiously as possible but in no event later than one year from 
February 20, 2001. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
secondary or post-secondary school level shall comply fully with this 
section as expeditiously as possible but in no event later than three 
years from February 20, 2001.



Sec. 1042.455  Textbooks and curricular material.

    Nothing in these Title IX regulations shall be interpreted as 
requiring or prohibiting or abridging in any way the use of particular 
textbooks or curricular materials.



Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited



Sec. 1042.500  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefor, whether full-time or part-time, under any education 
program or activity operated by a recipient that receives Federal 
financial assistance.
    (2) A recipient shall make all employment decisions in any education 
program or activity operated by such recipient in a nondiscriminatory 
manner and shall not limit, segregate, or classify applicants or 
employees in any way that could adversely affect any applicant's or 
employee's employment opportunities or status because of sex.
    (3) A recipient shall not enter into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to discrimination prohibited by Sec. Sec. 
1042.500 through 1042.550, including relationships with employment and 
referral agencies, with labor unions, and with organizations providing 
or administering fringe benefits to employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity that admits as students only or predominantly members of one sex, 
if the giving of such preferences has the effect of discriminating on 
the basis of sex in violation of these Title IX regulations.
    (b) Application. The provisions of Sec. Sec. 1042.500 through 
1042.550 apply to:
    (1) Recruitment, advertising, and the process of application for 
employment;
    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;

[[Page 961]]

    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec. 1042.505  Employment criteria.

    A recipient shall not administer or operate any test or other 
criterion for any employment opportunity that has a disproportionately 
adverse effect on persons on the basis of sex unless:
    (a) Use of such test or other criterion is shown to predict validly 
successful performance in the position in question; and
    (b) Alternative tests or criteria for such purpose, which do not 
have such disproportionately adverse effect, are shown to be 
unavailable.



Sec. 1042.510  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex in the recruitment or hiring of 
employees, or has been found to have so discriminated in the past, the 
recipient shall recruit members of the sex so discriminated against so 
as to overcome the effects of such past or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily or 
exclusively at entities that furnish as applicants only or predominantly 
members of one sex if such actions have the effect of discriminating on 
the basis of sex in violation of Sec. Sec. 1042.500 through 1042.550.



Sec. 1042.515  Compensation.

    A recipient shall not make or enforce any policy or practice that, 
on the basis of sex:
    (a) Makes distinctions in rates of pay or other compensation;
    (b) Results in the payment of wages to employees of one sex at a 
rate less than that paid to employees of the opposite sex for equal work 
on jobs the performance of which requires equal skill, effort, and 
responsibility, and that are performed under similar working conditions.



Sec. 1042.520  Job classification and structure.

    A recipient shall not:
    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for similar jobs, position 
descriptions, or job requirements that classify persons on the basis of 
sex, unless sex is a bona fide occupational qualification for the 
positions in question as set forth in Sec. 1042.550.



Sec. 1042.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, fringe benefits means: Any medical, hospital, accident, 
life insurance, or retirement benefit, service, policy or plan, any 
profit-sharing or bonus plan, leave, and any other benefit or service of 
employment not subject to the provision of Sec. 1042.515.
    (b) Prohibitions. A recipient shall not:
    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the basis 
of the employee's sex;

[[Page 962]]

    (2) Administer, operate, offer, or participate in a fringe benefit 
plan that does not provide for equal periodic benefits for members of 
each sex and for equal contributions to the plan by such recipient for 
members of each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan that establishes different optional or compulsory 
retirement ages based on sex or that otherwise discriminates in benefits 
on the basis of sex.



Sec. 1042.530  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:
    (1) Concerning the potential marital, parental, or family status of 
an employee or applicant for employment that treats persons differently 
on the basis of sex; or
    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or exclude 
from employment any employee or applicant for employment on the basis of 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.
    (c) Pregnancy as a temporary disability. Subject to Sec. 
1042.235(d), a recipient shall treat pregnancy, childbirth, false 
pregnancy, termination of pregnancy, recovery therefrom, and any 
temporary disability resulting therefrom as any other temporary 
disability for all job-related purposes, including commencement, 
duration, and extensions of leave, payment of disability income, accrual 
of seniority and any other benefit or service, and reinstatement, and 
under any fringe benefit offered to employees by virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a leave policy for its employees, or in the case of an employee 
with insufficient leave or accrued employment time to qualify for leave 
under such a policy, a recipient shall treat pregnancy, childbirth, 
false pregnancy, termination of pregnancy, and recovery therefrom as a 
justification for a leave of absence without pay for a reasonable period 
of time, at the conclusion of which the employee shall be reinstated to 
the status that she held when the leave began or to a comparable 
position, without decrease in rate of compensation or loss of 
promotional opportunities, or any other right or privilege of 
employment.



Sec. 1042.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec. 1042.500 through 1042.550 is not obviated or alleviated by 
the existence of any State or local law or other requirement that 
imposes prohibitions or limits upon employment of members of one sex 
that are not imposed upon members of the other sex.
    (b) Benefits. A recipient that provides any compensation, service, 
or benefit to members of one sex pursuant to a State or local law or 
other requirement shall provide the same compensation, service, or 
benefit to members of the other sex.



Sec. 1042.540  Advertising.

    A recipient shall not in any advertising related to employment 
indicate preference, limitation, specification, or discrimination based 
on sex unless sex is a bona fide occupational qualification for the 
particular job in question.



Sec. 1042.545  Pre-employment inquiries.

    (a) Marital status. A recipient shall not make pre-employment 
inquiry as to the marital status of an applicant for employment, 
including whether such applicant is ``Miss'' or ``Mrs.''
    (b) Sex. A recipient may make pre-employment inquiry as to the sex 
of an applicant for employment, but only if such inquiry is made equally 
of such applicants of both sexes and if the results of such inquiry are 
not used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 1042.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec. 
1042.500 through 1042.550 provided it is shown that sex is a bona fide 
occupational qualification for that action, such that consideration of 
sex with regard to such action

[[Page 963]]

is essential to successful operation of the employment function 
concerned. A recipient shall not take action pursuant to this section 
that is based upon alleged comparative employment characteristics or 
stereotyped characterizations of one or the other sex, or upon 
preference based on sex of the recipient, employees, students, or other 
persons, but nothing contained in this section shall prevent a recipient 
from considering an employee's sex in relation to employment in a locker 
room or toilet facility used only by members of one sex.



                       Subpart F_Other Provisions



Sec. 1042.600  Covered programs.

    The financial assistance programs to which this part applies are 
listed in Appendix A to 10 CFR part 1040.



Sec. 1042.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural provisions 
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) are hereby 
adopted and applied to these Title IX regulations. These procedures may 
be found at 10 CFR part 1040, subparts G and H.



PART 1044_SECURITY REQUIREMENTS FOR PROTECTED DISCLOSURES UNDER SECTION 3164 OF THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2000--Table of Contents



Sec.
1044.01 What are the purpose and scope of this part?
1044.02 Who must follow the requirements contained in this part?
1044.03 What definitions apply to this part?
1044.04 What is a protected disclosure?
1044.05 What is the effect of a disclosure qualifying as a ``protected 
          disclosure''?
1044.06 Who may receive a protected disclosure?
1044.07 How can you find out if a particular person is authorized to 
          receive a protected disclosure?
1044.08 Do you have to submit the documents for classification review 
          before you give them to someone?
1044.09 What do you do if you plan to disclose classified or 
          unclassified controlled nuclear information orally rather than 
          by providing copies of documents?
1044.10 Will your identity be protected?
1044.11 How do you protect the documents and information that you want 
          to disclose?
1044.12 What procedures can you invoke if you believe you have been 
          discharged, demoted, or otherwise discriminated against as a 
          reprisal for making a protected disclosure?

    Authority: 42 U.S.C. 7101 et seq., 7239, and 50 U.S.C. 2401 et seq.

    Source: 66 FR 4642, Jan. 18, 2001, unless otherwise noted.



Sec. 1044.01  What are the purpose and scope of this part?

    (a) Purpose. This part prescribes the security requirements for 
making protected disclosures of classified or unclassified controlled 
nuclear information under the whistleblower protection provisions of 
section 3164 of the National Defense Authorization Act for Fiscal Year 
2000.
    (b) Scope. The security requirements for making protected 
disclosures in this part are independent of, and not subject to any 
limitations that may be provided in, the Whistleblower Protection Act of 
1989 (Public Law 101-12) or any other law that may provide protection 
for disclosures of information by employees of DOE or of a DOE 
contractor.

[66 FR 54645, Oct. 30, 2001]



Sec. 1044.02  Who must follow the requirements contained in this part?

    The requirements apply to you if you are:
    (a) An employee of DOE, including the National Nuclear Security 
Administration, or one of its contractors;
    (b) Engaged in DOE defense activities; and
    (c) Wish to make a protected disclosure as described in Sec. 
1044.04 of this part.



Sec. 1044.03  What definitions apply to this part?

    The following definitions apply to this subpart:
    Atomic Energy Act means the Atomic Energy Act of 1954, as amended 
(42 U.S.C. 2011 et seq.
    Classified information means:

[[Page 964]]

    (1) Information classified as Restricted Data or Formerly Restricted 
Data under the Atomic Energy Act; or
    (2) Information that has been determined pursuant to Executive Order 
12958 or prior Executive Orders to require protection against 
unauthorized disclosure and is marked to indicate its classification 
status when in document form (also referred to as ``National Security 
Information'' in 10 CFR Part 1045 or ``defense information'' in the 
Atomic Energy Act).
    Contractor means any industrial, educational, commercial or other 
entity, grantee or licensee at any tier, including an individual, that 
has executed an agreement with the Federal Government for the purpose of 
performing under a contract, license or other agreement.
    Defense activities means activities of DOE engaged in support of:
    (1) The production, testing, sampling, maintenance, repair, 
modification, assembly, disassembly, utilization, transportation, or 
retirement of nuclear weapons or components of nuclear weapons;
    (2) The production, utilization, or transportation of nuclear 
material for military applications; or
    (3) The safeguarding of activities, equipment, or facilities which 
support the production of nuclear weapons or nuclear material for 
nuclear weapons.
    DOE means the Department of Energy, including the National Nuclear 
Security Administration.
    Unclassified controlled nuclear information means unclassified 
government information prohibited from unauthorized dissemination under 
section 148 of the Atomic Energy Act and DOE implementing regulations in 
10 CFR part 1017.



Sec. 1044.04  What is a protected disclosure?

    A protected disclosure is:
    (a) A disclosure of classified or unclassified controlled nuclear 
information that you reasonably believe provides direct and specific 
evidence of--
    (1) A violation of law or Federal regulation;
    (2) Gross mismanagement, a gross waste of funds, or an abuse of 
authority; or
    (3) A false statement to Congress on pursuant to an issue of 
material fact; and
    (b) Protected pursuant to the procedures in this part, including the 
security procedures referenced in Sec. 1044.11; and
    (c) Revealed only to a person or organization described in Sec. 
1044.06.



Sec. 1044.05  What is the effect of a disclosure qualifying as a ``protected disclosure''?

    If a DOE or DOE contractor employee follows the procedures of this 
part when making a disclosure of classified or unclassified controlled 
nuclear information, then the employer (DOE or DOE contractor as 
applicable) may not discharge, demote, or otherwise discriminate against 
the employee as a reprisal for making the disclosure.



Sec. 1044.06  Who may receive a protected disclosure?

    The following persons or organizations may receive a protected 
disclosure:
    (a) A member of a committee of Congress having primary 
responsibility for oversight of the department, agency, or element of 
the Government to which the disclosed information relates;
    (b) An employee of Congress who is a staff member of such a 
committee and has an appropriate security access authorization for the 
information being disclosed;
    (c) The Inspector General of the Department of Energy;
    (d) The Federal Bureau of Investigation; or
    (e) Any other element of the Government designated by the Secretary 
of Energy as authorized to receive the information being disclosed.



Sec. 1044.07  How can you find out if a particular person is authorized to receive a protected disclosure?

    You must contact the Department of Energy Inspector General for help 
in determining whether a particular person is authorized to receive the 
classified or unclassified controlled nuclear information you wish to 
disclose. The Inspector General will contact the Office of Personnel 
Security as necessary

[[Page 965]]

to determine the security access authorization of the person to receive 
the protected disclosure.

[66 FR 4642, Jan. 18, 2001, as amended at 71 FR 68736, Nov. 28, 2006]



Sec. 1044.08  Do you have to submit the documents for classification review before you give them to someone?

    Yes, you must submit each document with a classification or control 
marking and any unmarked document generated in a classified or 
controlled subject area to the Inspector General. The Inspector General 
forwards each document to the Office of Classification for a 
determination as to whether the information in the document is properly 
classified, controlled, or may be released to the public.

[66 FR 4642, Jan. 18, 2001, as amended at 71 FR 68736, Nov. 28, 2006]



Sec. 1044.09  What do you do if you plan to disclose classified or unclassified 

controlled nuclear information orally rather than by providing copies of 
          documents?

    You must describe in detail to the Inspector General what 
information you wish to disclose. The Inspector General may require that 
the information to be disclosed be put in writing in order to ensure the 
Inspector General obtains and provides accurate advice. The Inspector 
General will consult with the Office of Classification who will provide 
you with advice, through the Inspector General, as to whether the 
information is classified or controlled and any steps needed to protect 
the information.

[66 FR 4642, Jan. 18, 2001, as amended at 71 FR 68736, Nov. 28, 2006]



Sec. 1044.10  Will your identity be protected?

    Yes, both the Inspector General and the Office of Classification 
must protect, consistent with legal requirements, your identity and any 
information about your disclosure.

[66 FR 4642, Jan. 18, 2001, as amended at 71 FR 68736, Nov. 28, 2006]



Sec. 1044.11  How do you protect the information that you want to disclose?

    To protect classified information and unclassified controlled 
nuclear information you plan to disclose, you must:
    (a) Only disclose the information to personnel who possess the 
appropriate clearance and need-to-know for the information disclosed as 
required in 10 CFR part 710, after verifying any special authorizations 
or accesses, such as Sensitive Compartmented Information, Special Access 
Program, and Weapon Data information;
    (b) Use only equipment (such as computers or typewriters) that is 
approved for classified processing for the generation of classified 
documents;
    (c) Mark documents as required by 10 CFR part 1045 (classified 
information), 10 CFR Part 1017 (unclassified controlled nuclear 
information), or as required by the Office of Classification.
    (d) Use only approved copiers to reproduce documents;
    (e) Store classified documents in facilities approved by the U.S. 
Government for the storage of classified material;
    (f) Use only approved destruction devices to destroy classified 
documents;
    (g) Use only appropriate secure means, such as secure facsimile or 
secure telephone, to provide classified information orally or 
electronically when transmitting or communicating that information (e.g. 
the applicable classified mailing address); and
    (h) Follow any additional specific instructions from the Office of 
Health, Safety and Security on how to protect the information.

[66 FR 4642, Jan. 18, 2001, as amended at 71 FR 68736, Nov. 28, 2006]



Sec. 1044.12  What procedures can you invoke if you believe you have been discharged,

demoted, or otherwise discriminated against as a reprisal for making a 
          protected disclosure?

    If you believe you have been discriminated against as a reprisal for 
making a protected disclosure, you may submit a complaint to the 
Director of the Office of Hearings and Appeals, HG-1/L'Enfant Plaza 
Building, U.S. Department of Energy, 1000 Independence Avenue SW., 
Washington, DC

[[Page 966]]

20585-1615, or you may send your complaint to the Director, Office of 
Hearings and Appeals, by facsimile to FAX number (202) 287-1415. In your 
complaint, you should give your reasons for believing that you have been 
discriminated against as a reprisal for making a protected disclosure, 
and include any information you think is relevant to your complaint. The 
Office of Hearings and Appeals will conduct an investigation of your 
complaint unless the Director determines your complaint is frivolous. 
The Director will notify you in writing if your complaint is found to be 
frivolous. If an investigation is conducted, the Director will submit a 
report of the investigation to you, to the employer named in your 
complaint, and to the Secretary of Energy, or the Secretary's designee. 
The Secretary, or the Secretary's designee, will take appropriate 
action, pursuant to 42 U.S.C. 7239(k), to abate any discriminatory 
actions taken as reprisal for making a protected disclosure.

[66 FR 4642, Jan. 18, 2001, as amended at 71 FR 68736, Nov. 28, 2006]



PART 1045_NUCLEAR CLASSIFICATION AND DECLASSIFICATION--Table of Contents



    Subpart A_Program Management of the Restricted Data and Formerly 
                  Restricted Data Classification System

Sec.
1045.1 Purpose and scope.
1045.2 Applicability.
1045.3 Definitions.
1045.4 Responsibilities.
1045.5 Sanctions.
1045.6 Openness Advisory Panel.
1045.7 Suggestions or complaints.
1045.8 Procedural exemptions.
1045.9 RD classification performance evaluation.

Subpart B_Identification of Restricted Data and Formerly Restricted Data 
                               Information

1045.10 Purpose and scope.
1045.11 Applicability.
1045.12 Authorities.
1045.13 Classification prohibitions.
1045.14 Process for classification and declassification of restricted 
          data and formerly restricted data information.
1045.15 Classification and declassification presumptions.
1045.16 Criteria for evaluation of restricted data and formerly 
          restricted data information.
1045.17 Classification levels.
1045.18 Newly generated information in a previously declassified subject 
          area.
1045.19 Accountability for classification and declassification 
          determinations.
1045.20 Ongoing call for declassification proposals.
1045.21 Privately generated restricted data.
1045.22 No comment policy.

Subpart C_Generation and Review of Documents Containing Restricted Data 
                      and Formerly Restricted Data

1045.30 Purpose and scope.
1045.31 Applicability.
1045.32 Authorities.
1045.33 Appointment of restricted data management official.
1045.34 Designation of restricted data classifiers.
1045.35 Training requirements.
1045.36 Reviews of agencies with access to restricted data and formerly 
          restricted data.
1045.37 Classification guides.
1045.38 Automatic declassification prohibition.
1045.39 Challenging classification and declassification determinations.
1045.40 Marking requirements.
1045.41 Use of classified addendums.
1045.42 Mandatory and Freedom of Information Act reviews for 
          declassification of restricted data and formerly restricted 
          data documents.
1045.43 Systematic review for declassification.
1045.44 Classification review prior to public release.
1045.45 Review of unmarked documents with potential restricted data or 
          formerly restricted data.
1045.46 Classification by association or compilation.

    Subpart D_Executive Order 12958: ``Classified National Security 
             Information'' Requirements Affecting the Public

1045.50 Purpose and scope.
1045.51 Applicability.
1045.52 Mandatory declassification review requests.
1045.53 Appeal of denial of mandatory declassification review requests.

    Authority: 42 U.S.C. 2011; E.O. 12958, 60 FR 19825, 3 CFR, 1995 
Comp., p. 333; E.O. 13292, 68 FR 15315, 3 CFR 2004 Comp., p. 196.

    Source: 62 FR 68509, Dec. 31, 1997, unless otherwise noted.

[[Page 967]]



    Subpart A_Program Management of the Restricted Data and Formerly 
                  Restricted Data Classification System



Sec. 1045.1  Purpose and scope.

    This subpart establishes responsibilities associated with this part, 
describes the Openness Advisory Panel, defines key terms, describes 
sanctions related to violation of the policies and procedures in this 
part, and describes how to submit suggestions or complaints concerning 
the Restricted Data classification and declassification program, and how 
to request procedural exceptions.



Sec. 1045.2  Applicability.

    This subpart applies to--
    (a) Any person with authorized access to RD or FRD;
    (b) Any agency with access to RD or FRD; and
    (c) Any person who might generate information determined to be RD or 
FRD.



Sec. 1045.3  Definitions.

    As used in this part:
    Agency means any ``Executive Agency'' as defined in 5 U.S.C. 105; 
any ``Military Department'' as defined in 5 U.S.C. 102; and any other 
entity within the executive branch that comes into possession of RD or 
FRD information or documents.
    Atomic Energy Act means the Atomic Energy Act of 1954, as amended 
(42 U.S.C. 2011 et seq.).
    Authorized Holder means a person with the appropriate security 
clearance required to have access to classified information and the need 
to know the information in the performance of Government-approved 
activities.
    Automatic Declassification means the declassification of information 
or documents based solely upon:
    (1) The occurrence of a specific date or event as determined by the 
classifier; or
    (2) The expiration of a maximum time frame for duration of 
classification established under Executive Order 12958.
    Chief Health, Safety and Security officer means the Department of 
Energy Chief Health, Safety and Security Officer, or any person to whom 
the Chief's duties are delegated.
    Classification means the act or process by which information is 
determined to be classified information.
    Classification Guide means a written record of detailed instructions 
as to whether specific information is classified, usually concerning a 
system, plan, project, or program. It identifies information to be 
classified and specifies the level (and duration for NSI only) of 
classification assigned to such information. Classification guides are 
the primary basis for reviewing documents to determine whether they 
contain classified information.
    Classification Level means one of three designators:
    (1) Top Secret is applied to information (RD, FRD, or NSI), the 
unauthorized disclosure of which reasonably could be expected to cause 
exceptionally grave damage to the national security that the appropriate 
official is able to identify or describe.
    (2) Secret is applied to information (RD, FRD, or NSI), the 
unauthorized disclosure of which reasonably could be expected to cause 
serious damage to the national security that the appropriate official is 
able to identify or describe.
    (3) Confidential. (i) For NSI, Confidential is applied to 
information, the unauthorized disclosure of which reasonably could be 
expected to cause damage to the national security that the appropriate 
official is able to identify or describe.
    (ii) For RD and FRD, Confidential is applied to information, the 
unauthorized disclosure of which could reasonably be expected to cause 
undue risk to the common defense and security that the appropriate 
official is able to identify or describe.
    Classified Information means:
    (1) Information classified as RD or FRD under the Atomic Energy Act; 
or
    (2) Information determined to require protection against 
unauthorized disclosure under Executive Order (E.O.) 12958 or prior 
Executive Orders (also identified as National Security Information or 
NSI).
    Contractor means any industrial, educational, commercial or other 
entity,

[[Page 968]]

grantee or licensee at all tiers, including an individual, that has 
executed an agreement with the Federal Government for the purpose of 
performing under a contract, license or other agreement.
    Declassification means a determination by appropriate authority that 
information or documents no longer require protection, as classified 
information, against unauthorized disclosure in the interests of 
national security.
    Department or DOE means Department of Energy.
    Director of Classification means the Department of Energy Director, 
Office of Classification, or any person to whom the Director's duties 
are delegated. The Director of Classification is subordinate to the 
Chief Health, Safety and Security Officer.
    Document means the physical medium on or in which information is 
recorded, or a product or substance which contains or reveals 
information, regardless of its physical form or characteristics.
    Formerly Restricted Data (FRD) means classified information jointly 
determined by DOE and the DoD to be related primarily to the military 
utilization of nuclear weapons and removed (by transclassification) from 
the RD category pursuant to section 142(d) of the Atomic Energy Act.
    Government means the executive branch of the Federal Government of 
the United States.
    Government Information means information that is owned by, produced 
by or for, or is under the control of the U.S. Government.
    Information means facts, data, or knowledge itself, as opposed to 
the medium in which it is contained.
    Interagency Security Classification Appeals Panel (ISCAP) means a 
panel created pursuant to Executive Order 12958 to perform functions 
specified in that order with respect to National Security Information.
    National Security means the national defense or foreign relations of 
the United States.
    National Security Information (NSI) means information that has been 
determined pursuant to Executive Order 12958 or prior Executive Orders 
to require protection against unauthorized disclosure and is marked to 
indicate its classification status when in document form. NSI is 
referred to as ``defense information'' in the Atomic Energy Act.
    Nuclear weapon means atomic weapon.
    Person means:
    (1) Any individual, contractor, corporation, partnership, firm, 
association, trust, estate, public or private institution, group, 
Government agency, any State, or any political subdivision thereof, or 
any political entity within a State; and
    (2) Any legal successor, representative, agent, or agency of the 
foregoing.
    Portion Marking means the application of certain classification 
markings to individual words, phrases, sentences, paragraphs, or 
sections of a document to indicate their specific classification level 
and category.
    Restricted Data (RD) means a kind of classified information that 
consists of all data concerning the following, but not including data 
declassified or removed from the RD category pursuant to section 142 of 
the Atomic Energy Act:
    (1) Design, manufacture, or utilization of atomic weapons;
    (2) Production of special nuclear material; or
    (3) Use of special nuclear material in the production of energy.
    Restricted Data Classifier means an individual who derivatively 
classifies RD or FRD documents. Within the DoD, RD classifiers may also 
declassify FRD documents.
    Restricted Data Management Official means an individual appointed by 
any agency with access to RD and FRD who is responsible for managing the 
implementation of this part within that agency or any person to whom 
these duties are delegated. This person may be the senior agency 
official required by E.O. 12958.
    Secretary means the Secretary of Energy.
    Source Document means a classified document, other than a 
classification guide, from which information is extracted for inclusion 
in another document. The classification of the information extracted is 
determined by the classification markings shown in the source document.

[[Page 969]]

    Special Nuclear Material means plutonium, uranium enriched in the 
isotope 233 or in the isotope 235, and any other material which the 
Secretary determines to be special nuclear material pursuant to the 
Atomic Energy Act.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68736, Nov. 28, 2006]



Sec. 1045.4  Responsibilities.

    (a) The Director of Classification shall:
    (1) Manage the Government-wide system for the classification and 
declassification of RD and FRD in accordance with the Atomic Energy Act;
    (2) In coordination with the DoD, develop regulations to implement 
the RD and FRD classification system;
    (3) Determine whether nuclear-related information is RD;
    (4) Oversee agency implementation of the RD and FRD classification 
system to ensure compliance with this part;
    (5) Review agency implementing policies and conduct on-site reviews 
of each agency's program established under this part;
    (6) Prepare and distribute classification guides concerning RD and 
FRD and review such guides developed by any agency;
    (7) Consider and take action on complaints and suggestions from any 
person with respect to administration of this program; and
    (8) Periodically meet with interested members of the public to 
solicit input for the classification and declassification program.
    (b) The Chief Health, Safety and Security Officer shall:
    (1) Declassify RD which may be published without undue risk to the 
common defense and security;
    (2) Jointly with the DoD, determine which information in the RD 
category relating primarily to the miliary utilization of nuclear 
weapons may be declassified or placed into the FRD category; and
    (3) Jointly with the DoD, declassify FRD which may be published 
without undue risk to the common defense and security.
    (c) The DoD jointly with the DOE shall:
    (1) Determine which information in the RD category relating 
primarily to the military utilization of nuclear weapons may be 
declassified or placed into the FRD category;
    (2) Ensure that classification guides for FRD and RD relating 
primarily to the military utilization of nuclear weapons are prepared; 
and
    (3) Declassify FRD and RD relating primarily to the military 
utilization of nuclear weapons which may be published without undue risk 
to the common defense and security.
    (d) The Nuclear Regulatory Commission (NRC) shall:
    (1) Jointly with the DOE, develop classification guides for programs 
over which both agencies have cognizance; and
    (2) Ensure the review and proper classification of RD by RD 
classifiers under this part, which is generated by the NRC or by its 
licensed or regulated facilities and activities.
    (e) Heads of Agencies with access to RD and FRD shall:
    (1) Ensure that RD and FRD are classified in such a manner as to 
assure the common defense and security in accordance with the policies 
established in this part;
    (2) Designate an RD management official to direct and administer the 
RD classification program within the agency; and
    (3) Promulgate implementing directives.
    (f) Agency RD management officials shall:
    (1) Jointly with the DOE, develop classification guides for programs 
over which both agencies have cognizance;
    (2) Ensure that agency and contractor personnel who generate RD and 
FRD documents have access to any classification guides needed;
    (3) Ensure that persons with access to RD and FRD are trained on the 
authorities required to classify and declassify RD and FRD information 
and documents and on handling procedures and that RD classifiers are 
trained on the procedures for classifying, declassifying, marking and 
handling RD and FRD information and documents; and
    (4) Cooperate and provide information as necessary to the Director 
of

[[Page 970]]

Classification to fulfill responsibilities under this part.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68736, Nov. 28, 2006]



Sec. 1045.5  Sanctions.

    (a) Knowing, willful, or negligent action contrary to the 
requirements of this part which results in the misclassification of 
information may result in appropriate sanctions. Such sanctions may 
range from administrative sanctions to civil or criminal penalties, 
depending on the nature and severity of the action as determined by 
appropriate authority, in accordance with applicable laws.
    (b) Other violations of the policies and procedures contained in 
this part may be grounds for administrative sanctions as determined by 
appropriate authority.



Sec. 1045.6  Openness Advisory Panel.

    The DOE shall maintain an Openness Advisory Panel, in accordance 
with the Federal Advisory Committee Act, to provide the Secretary with 
independent advice and recommendations on Departmental openness 
initiatives, including classification and declassification issues that 
affect the public.



Sec. 1045.7  Suggestions or complaints.

    (a) Any person who has suggestions or complaints regarding the 
Department's classification and declassification policies and procedures 
may direct them in writing to the Director, Office of Classification, 
HS-90/Germantown Building, U.S. Department of Energy, 1000 Independence 
Avenue SW., Washington, DC 20585-1290.
    (b) Such letters should include a description of the issue or 
problem, the suggestion or complaint, all applicable background 
information, and an address for the response.
    (c) DOE will make every effort to respond within 60 days.
    (d) Under no circumstances shall persons be subject to retribution 
for making a suggestion or complaint regarding the Department's 
classification and declassification policies or programs.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68736, Nov. 28, 2006]



Sec. 1045.8  Procedural exemptions.

    (a) Exemptions to the procedural provisions of this part may be 
granted by the Director of Classification.
    (b) A request for an exemption shall be made in writing to the 
Director of Classification and shall provide all relevant facts, 
justification, and a proposed alternate procedure.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



Sec. 1045.9  RD classification performance evaluation.

    (a) Heads of agencies shall ensure that RD management officials and 
those RD classifiers whose duties involve the classification or 
declassification of significant numbers of RD or FRD documents shall 
have their personnel performance evaluated with respect to 
classification activities.
    (b) Procedures for the evaluation under paragraph (a) of this 
section may be the same as those in place for NSI related classification 
activities as required by Executive Order 12958.



Subpart B_Identification of Restricted Data and Formerly Restricted Data 
                               Information



Sec. 1045.10  Purpose and scope.

    (a) This subpart implements sections 141 and 142 (42 U.S.C. 2161 and 
2162) of the Atomic Energy Act, which provide for Government-wide 
policies and procedures concerning the classification and 
declassification of RD and FRD information.
    (b) This subpart establishes procedures for classification 
prohibitions for RD and FRD, describes authorities and procedures for 
identifying RD and FRD information, and specifies the policies and 
criteria DOE shall use in determining if nuclear-related information is 
RD or FRD.



Sec. 1045.11  Applicability.

    This subpart applies to--
    (a) Any person with authorized access to RD or FRD;
    (b) Any agency with access to RD or FRD; and
    (c) Any person who might generate information determined to be RD or 
FRD.

[[Page 971]]



Sec. 1045.12  Authorities.

    (a) The Director of Classification may determine whether nuclear-
related information is RD.
    (b) Except as provided in paragraph (c) of this section, the Chief 
Health, Safety and Security Officer may declassify RD information.
    (c) The Chief Health, Safety and Security Officer, jointly with the 
DoD, may determine which information in the RD category relating 
primarily to the military utilization of nuclear weapons may be 
declassified or placed into the FRD category.
    (d) The Chief Health, Safety and Security Officer jointly with the 
DoD may declassify FRD information.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



Sec. 1045.13  Classification prohibitions.

    In no case shall information be classified RD or FRD in order to:
    (a) Conceal violations of law, inefficiency, or administrative 
error;
    (b) Prevent embarrassment to a person, organization, or Agency;
    (c) Restrain competition;
    (d) Prevent or delay the release of information that does not 
require protection for national security or nonproliferation reasons;
    (e) Unduly restrict dissemination by assigning an improper 
classification level; or
    (f) Prevent or delay the release of information bearing solely on 
the physical environment or public or worker health and safety.



Sec. 1045.14  Process for classification and declassification of restricted data and formerly restricted data information.

    (a) Classification of Restricted Data--(1) Submission of Potential 
RD for Evaluation. Any authorized holder who believes he or she has 
information which may be RD shall submit it to an RD classifier for 
evaluation. The RD classifier shall follow the process described in this 
paragraph whenever he or she is unable to locate guidance in a 
classification guide that can be applied to the information. The RD 
classifier shall forward the information to the Director of 
Classification via their local classification or security office. The 
Director of Classification shall determine whether the information is RD 
within 90 days of receipt by doing the following:
    (i) Determine whether the information is already classified RD under 
current classification guidance; or
    (ii) If it is not already classified, determine if the information 
concerns the design, manufacture, or utilization of nuclear weapons; the 
production of special nuclear material; or the use of special nuclear 
material in the production of energy; and
    (A) Apply the criteria in Sec. 1045.16 and Sec. 1045.17 as the 
basis for determining the appropriate classification; and
    (B) Provide notification of the decision by revising applicable 
classification guides, if appropriate.
    (2) Protection of Potential RD during Evaluation. Pending a 
determination by the Director of Classification, potential RD submitted 
for evaluation by authorized holders shall be protected at a minimum as 
Confidential Restricted Data.
    (b) Declassification of Restricted Data. The Chief Health, Safety 
and Security Officer shall apply the criteria in Sec. 1045.16 when 
determining whether RD may be declassified.
    (c) Classification of Formerly Restricted Data. The Chief Health, 
Safety and Security Officer, jointly with the DoD, shall remove 
information which relates primarily to the military utilization of 
nuclear weapons from the RD classification category and classify it as 
FRD.
    (d) Declassification of Formerly Restricted Data. The Chief Health, 
Safety and Security Officer, jointly with the DoD, shall apply the 
criteria in Sec. 1045.16 when determining whether FRD may be 
declassified.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



Sec. 1045.15  Classification and declassification presumptions.

    (a) The Director of Classification and the Chief Health, Safety and 
Security Officer shall consider the presumptions listed in paragraphs 
(d) and (e) of this section before applying the criteria in Sec. 
1045.16.

[[Page 972]]

    (b) Not all areas of nuclear-related information are covered by the 
presumptions.
    (c) In general, existing information listed in paragraphs (d) and 
(e) of this section has the classification status indicated. Inclusion 
of specific existing information in one of the presumption categories 
does not mean that new information in a category is or is not 
classified, but only that arguments to differ from the presumed 
classification status of the information should use the appropriate 
presumption as a starting point.
    (d) The Director of Classification and the Chief Health, Safety and 
Security Officer shall presume that information in the following areas 
is unclassified unless application of the criteria in Sec. 1045.16 
indicates otherwise:
    (1) Basic science: mathematics, chemistry, theoretical and 
experimental physics, engineering, materials science, biology and 
medicine;
    (2) Magnetic confinement fusion technology;
    (3) Civilian power reactors, including nuclear fuel cycle 
information but excluding technologies for uranium enrichment;
    (4) Source materials (defined as uranium and thorium and ores 
containing them);
    (5) Fact of use of safety features (e.g., insensitive high 
explosives, fire resistant pits) to lower the risks and reduce the 
consequences of nuclear weapon accidents;
    (6) Generic weapons effects;
    (7) Physical and chemical properties of uranium and plutonium, most 
of their alloys and compounds, under standard temperature and pressure 
conditions;
    (8) Nuclear fuel reprocessing technology and reactor products not 
revealing classified production rates or inventories;
    (9) The fact, time, location, and yield range (e.g., less than 20 
kilotons or 20-150 kilotons) of U.S. nuclear tests;
    (10) General descriptions of nuclear material production processes 
and theory of operation;
    (11) DOE special nuclear material aggregate inventories and 
production rates not revealing size or details concerning the nuclear 
weapons stockpile;
    (12) Types of waste products resulting from all DOE weapon and 
material production operations;
    (13) Any information solely relating to the public and worker health 
and safety or to environmental quality; and
    (14) The simple association or simple presence of any material 
(i.e., element, compound, isotope, alloy, etc.) at a specified DOE site.
    (e) The Director of Classification and the Chief Health, Safety and 
Security Officer shall presume that information in the following areas 
is classified unless the application of the criteria in Sec. 1045.16 
indicates otherwise:
    (1) Detailed designs, specifications, and functional descriptions of 
nuclear explosives, whether in the active stockpile or retired;
    (2) Material properties under conditions achieved in nuclear 
explosions that are principally useful only for design and analysis of 
nuclear weapons;
    (3) Vulnerabilities of U.S. nuclear weapons to sabotage, 
countermeasures, or unauthorized use;
    (4) Nuclear weapons logistics and operational performance 
information (e.g., specific weapon deployments, yields, capabilities), 
related to military utilization of those weapons required by the DoD;
    (5) Details of the critical steps or components in nuclear material 
production processes; and
    (6) Features of military nuclear reactors, especially naval nuclear 
propulsion reactors, that are not common to or required for civilian 
power reactors.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



Sec. 1045.16  Criteria for evaluation of restricted data and formerly restricted data information.

    (a) The Director of Classification shall classify information as RD 
and the Chief Health, Safety and Security Officer shall maintain the 
classification of RD (and FRD in coordination with the DoD) only if 
undue risk of damage to the common defense and security from its 
unauthorized disclosure can be identified and described.
    (b) The Director of Classification shall not classify information 
and the Chief Health, Safety and Security Officer shall declassify 
information if

[[Page 973]]

there is significant doubt about the need to classify the information.
    (c) The Director of Classification and the Chief Health, Safety and 
Security Officer shall consider the presumptions in Sec. 1045.15 (d) 
and (e) before applying the criteria in paragraph (d) of this section.
    (d) In determining whether information should be classified or 
declassified, the Director of Classification and the Chief Health, 
Safety and Security Officer shall consider the following:
    (1) Whether the information is so widely known or readily apparent 
to knowledgeable observers that its classification would cast doubt on 
the credibility of the classification system;
    (2) Whether publication of the information would assist in the 
development of countermeasures or otherwise jeopardize any U.S. weapon 
or weapon system;
    (3) Whether the information would hinder U.S. nonproliferation 
efforts by significantly assisting potential adversaries to develop or 
improve a nuclear weapon capability, produce nuclear weapons materials, 
or make other military use of nuclear energy;
    (4) Whether publication of the information would have a detrimental 
effect on U.S. foreign relations;
    (5) Whether publication of the information would benefit the public 
welfare, taking into account the importance of the information to public 
discussion and education and potential contribution to economic growth; 
and, 6) Whether publication of the information would benefit the 
operation of any Government program by reducing operating costs or 
improving public acceptance.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



Sec. 1045.17  Classification levels.

    (a) Restricted Data. The Director of Classification shall assign one 
of the following classification levels to RD information to reflect the 
sensitivity of the information to the national security. The greater the 
damage expected from unauthorized disclosure, the higher the 
classification level assigned to the information.
    (1) Top Secret. The Director of Classification shall classify RD 
information Top Secret if it is vital to the national security and if 
its unauthorized disclosure could reasonably be expected to cause 
exceptionally grave damage to the national security. Examples of RD 
information that warrant Top Secret classification include detailed 
technical descriptions of critical features of a nuclear explosive 
design that would enable a proliferant or nuclear power to build or 
substantially improve a nuclear weapon, information that would make 
possible the unauthorized use of a U.S. nuclear weapon, or information 
revealing catastrophic failure or operational vulnerability in a U.S. 
nuclear weapon.
    (2) Secret. The Director of Classification shall classify RD 
information as Secret if its unauthorized disclosure could reasonably be 
expected to cause serious damage to the national security, but the RD 
information is not sufficiently comprehensive to warrant designation as 
Top Secret. Examples of RD information that warrant Secret 
classification include designs for specific weapon components (not 
revealing critical features), key features of uranium enrichment 
technologies, or specifications of weapon materials.
    (3) Confidential. The Director of Classification shall classify RD 
information as Confidential if it is deemed to be of significant use to 
a potential adversary or nuclear proliferant and its unauthorized 
disclosure could reasonably be expected to cause undue risk to the 
common defense and security. Examples of RD information that warrant 
Confidential classification are the amount of high explosives used in 
nuclear weapons, gaseous diffusion design information, and design 
information for Naval reactors.
    (b) Formerly Restricted Data. The Director of Classification, 
jointly with the DoD, shall assign one of the classification levels in 
paragraph (a) of this section to FRD information to reflect its 
sensitivity to the national security.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



Sec. 1045.18  Newly generated information in a previously declassified subject area.

    (a) The Director of Classification may evaluate newly generated 
specific

[[Page 974]]

information in a previously declassified subject area using the criteria 
in section 1045.16 and classify it as RD, if warranted.
    (b) The Director of Classification shall not classify the 
information in such cases if it is widely disseminated in the public 
domain.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



Sec. 1045.19  Accountability for classification and declassification determinations.

    (a) Whenever a classification or declassification determination 
concerning RD or FRD information is made, the Director of Classification 
and the Chief Health, Safety and Security Officer shall be able to 
justify the determination. For FRD and RD primarily related to military 
utilization, the Director of Classification and the Chief Health, Safety 
and Security Officer shall coordinate the determination and 
justification with the DoD. If the determination involves a departure 
from the presumptions in Sec. 1045.15, the justification shall include 
a rationale for the departure. Often the justification itself will 
contain RD or FRD information. In such a case, the Director of 
Classification and the Chief Health, Safety and Security Officer shall 
ensure that a separate justification can be prepared which is publicly 
releasable. The publicly releasable justification shall be made 
available to any interested person upon request to the Director of 
Classification.
    (b) The Director of Classification shall prepare a report on an 
annual basis on the implementation of this part. This report shall be 
available to any interested person upon request to the Director of 
Classification. Requests may be submitted to the Director Office of 
Classification, HS-90/Germantown Building, U.S. Department of Energy, 
1000 Independence Avenue SW., Washington, DC 20585-1290.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



Sec. 1045.20  Ongoing call for declassification proposals.

    The Chief Health, Safety and Security Officer shall consider 
proposals from the public or agencies or contractors for 
declassification of RD and FRD information on an ongoing basis. 
Declassification proposals for RD and FRD information shall be forwarded 
to the Chief Health, Safety and Security Officer, HS-1/Forrestal 
Building, U.S. Department of Energy, 1000 Independence Avenue SW, 
Washington, DC 20585. Any proposed action shall include a description of 
the information concerned and may include a reason for the request. DOE 
and DoD shall coordinate with one another concerning declassification 
proposals for FRD information.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



Sec. 1045.21  Privately generated restricted data.

    (a) DOE may classify RD which is privately generated by persons not 
pursuant to Government contracts, in accordance with the Atomic Energy 
Act.
    (b) In order for information privately generated by persons to be 
classified as RD, the Secretary or Deputy Secretary shall make the 
determination personally and in writing. This authority shall not be 
delegated.
    (c) DOE shall publish a Federal Register notice when privately 
generated information is classified as RD, and shall ensure that the 
content of the notice is consistent with protecting the national 
security and the interests of the private party.



Sec. 1045.22  No comment policy.

    (a) Authorized holders of RD and FRD shall not confirm or expand 
upon the classification status or technical accuracy of classified 
information in the public domain.
    (b) Unauthorized disclosure of classified information does not 
automatically result in the declassification of that information.
    (c) If the disclosure of classified information is sufficiently 
authoritative or credible, the Chief Health, Safety and Security Officer 
shall examine the possibility of declassification.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]

[[Page 975]]



Subpart C_Generation and Review of Documents Containing Restricted Data 
                      and Formerly Restricted Data



Sec. 1045.30  Purpose and scope.

    This subpart specifies Government-wide classification program 
implementation requirements for agencies with access to RD and FRD, 
describes authorities and procedures for RD and FRD document 
classification and declassification, provides for periodic or systematic 
review of RD and FRD documents, and describes procedures for the 
mandatory review of RD and FRD documents. This subpart applies to all RD 
and FRD documents, regardless of whether they also contain National 
Security Information (NSI), or other controlled information such as 
``For Official Use Only'' information or ``Unclassified Controlled 
Nuclear Information.''



Sec. 1045.31  Applicability.

    This subpart applies to--
    (a) Any person with authorized access to RD or FRD;
    (b) Any agency with access to RD or FRD; and
    (c) Any person generating a document containing RD or FRD.



Sec. 1045.32  Authorities.

    (a) Classification of RD and FRD documents. (1) To the maximum 
extent practical, all RD and FRD documents shall be classified based on 
joint DOE-Agency classification guides or Agency guides coordinated with 
the DOE. When it is not practical to use classification guides, source 
documents may be used as an alternative.
    (2) Only individuals designated as RD classifiers may classify RD 
and FRD documents, except within the DoD. Within the DoD, any individual 
with access to RD and FRD who has been trained may classify RD and FRD 
documents.
    (3) RD classifiers shall classify only documents in subject areas in 
which they have programmatic expertise.
    (4) RD classifiers may upgrade or downgrade the classification level 
of RD or FRD documents in accordance with joint DOE-Agency 
classification guides or Agency guides coordinated with the DOE. When it 
is not practical to use classification guides, source documents may be 
used as an alternative.
    (b) Declassification of RD and FRD documents. (1) Only designated 
individuals in the DOE may declassify documents containing RD.
    (2) Except as provided in paragraph (b)(3) of this section, only 
designated individuals in the DOE or appropriate individuals in DoD may 
declassify documents marked as FRD in accordance with joint DoD-DOE 
classification guides or DoD guides coordinated with the DOE.
    (3) The DOE and DoD may delegate these authorities to other agencies 
and to contractors. Contractors without the delegated authority shall 
send any document marked as RD or FRD that needs to be considered for 
declassification to the appropriate agency office.



Sec. 1045.33  Appointment of restricted data management official.

    (a) Each agency with access to RD or FRD shall appoint an official 
to be responsible for the implementation of this part and shall advise 
the Director of Classification of such appointment.
    (b) This official shall ensure the proper implementation of this 
part within his or her agency and shall serve as the primary point of 
contact for coordination with the Director of Classification on RD and 
FRD classification and declassification issues.
    (c) Within the DoD, an RD management official shall be appointed in 
each DoD agency.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



Sec. 1045.34  Designation of restricted data classifiers.

    (a) Except within the DoD, RD management officials shall ensure that 
persons who derivatively classify RD or FRD documents are designated by 
position or by name as RD classifiers.
    (b) All contractor organizations with access to RD and FRD, 
including DoD contractors, shall designate RD classifiers.



Sec. 1045.35  Training requirements.

    (a) RD management officials shall ensure that persons with access to 
RD and FRD information are trained on

[[Page 976]]

the authorities required to classify and declassify RD and FRD 
information and documents and on handling procedures. RD management 
officials shall ensure that RD classifiers are trained on the procedures 
for classifying, declassifying, marking and handling RD and FRD 
information and documents.
    (b) The Director of Classification shall develop training materials 
related to implementation of this part and shall provide these materials 
to RD management officials and any other appropriate persons.
    (c) The Director of Classification shall review any RD-related 
training material submitted by agency and contractor representatives to 
ensure consistency with current policy.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



Sec. 1045.36  Reviews of agencies with access to restricted data and formerly restricted data.

    (a) The DOE and each agency with access to RD and FRD shall consult 
periodically to assure appropriate implementation of this part. Such 
consultations may result in DOE conducting an on-site review within the 
agency if DOE and the RD management official determine that such a 
review would be mutually beneficial or that it is necessary to remedy a 
problem.
    (b) To address issues concerning implementation of this part, the 
Director of Classification shall establish a standing group of all RD 
management officials to meet periodically.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



Sec. 1045.37  Classification guides.

    (a) The classification and declassification determinations made by 
the Director of Classification and the Chief Health, Safety and Security 
Officer under the classification criteria in Sec. 1045.16 shall be 
promulgated in classification guides.
    (b) DOE shall jointly develop classification guides with the DoD, 
NRC, NASA, and other agencies as required for programs for which DOE and 
these agencies share responsibility.
    (c) Agencies shall coordinate with the Director of Classification 
whenever they develop or revise classification guides with RD or FRD 
information topics.
    (d) Originators of classification guides with RD or FRD topics shall 
review such guides at least every five years and make revisions as 
necessary.
    (e) RD classifiers shall use classification guides as the primary 
basis for classifying and declassifying documents containing RD and FRD.
    (f) Each RD management official shall ensure that all RD classifiers 
have access to all pertinent nuclear classification guides.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



Sec. 1045.38  Automatic declassification prohibition.

    (a) Documents containing RD and FRD remain classified until a 
positive action by an authorized person is taken to declassify them.
    (b) In accordance with the Atomic Energy Act, no date or event for 
automatic declassification ever applies to RD and FRD documents, even if 
such documents also contain NSI.
    (c) E.O. 12958 acknowledges that RD and FRD are exempt from all 
provisions of the E.O., including automatic declassification.



Sec. 1045.39  Challenging classification and declassification determinations.

    (a) Any authorized holder of an RD or FRD document who, in good 
faith, believes that the RD or FRD document has an improper 
classification status is encouraged and expected to challenge the 
classification with the RD Classifier who classified the document.
    (b) Agencies shall establish procedures under which authorized 
holders of RD and FRD documents are encouraged and expected to challenge 
any classification status they believe is improper. These procedures 
shall assure that:
    (1) Under no circumstances are persons subject to retribution for 
bringing forth a classification challenge.
    (2) The individual who initially receives the challenge provides a 
response within 90 days to the person bringing forth the challenge.
    (3) A decision concerning a challenge involving RD or FRD may be 
appealed

[[Page 977]]

to the Director of Classification. In the case of FRD and RD related 
primarily to the military utilization of nuclear weapons, the Director 
of Classification shall coordinate with the DoD. If the justification 
for classification does not satisfy the person making the challenge, a 
further appeal may be made to the Chief Health, Safety and Security 
Officer.
    (c) Classification challenges concerning documents containing RD and 
FRD information are not subject to review by the Interagency Security 
Classification Appeals Panel, unless those documents also contain NSI 
which is the basis for the challenge. In such cases, the RD and FRD 
portions of the document shall be deleted and then the NSI and 
unclassified portions shall be provided to the Interagency Security 
Classification Appeals Panel for review.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



Sec. 1045.40  Marking requirements.

    (a) RD classifiers shall ensure that each RD and FRD document is 
clearly marked to convey to the holder that it contains RD or FRD 
information, the level of classification assigned, and the additional 
markings in paragraphs (b)(3) and (4) of this section.
    (b) Front Marking. In addition to the overall classification level 
of the document, the following notices shall appear on the front of the 
document, as appropriate:
    (1) If the document contains RD:

RESTRICTED DATA

    This document contains RESTRICTED DATA as defined in the Atomic 
Energy Act of 1954. Unauthorized disclosure subject to administrative 
and criminal sanctions.

    (2) If the document contains FRD but does not contain RD:

FORMERLY RESTRICTED DATA

    Unauthorized disclosure subject to administrative and criminal 
sanctions. Handle as RESTRICTED DATA in foreign dissemination. Section 
144b, Atomic Energy Act of 1954.

    (3) An RD or FRD document shall be marked to identify the 
classification guide or source document, by title and date, used to 
classify the document:

    Derived from:

________________________________________________________________________
(Classification Guide or source document--title and date)

    (4) An RD or FRD document shall be marked with the identity of the 
RD classifier, unless the classifier is the same as the document 
originator or signer.
    RD Classifier:

________________________________________________________________________
(Name and position or title)

    (c) Interior Page. RD classifiers shall ensure that RD and FRD 
documents are clearly marked at the top and bottom of each interior page 
with the overall classification level and category of the document or 
the classification level and category of the page, whichever is 
preferred. The abbreviations ``RD'' and ``FRD'' may be used in 
conjunction with the document classification (e.g., SECRET RD or SECRET 
FRD).
    (d) Declassification Marking. Declassified RD and FRD documents 
shall be marked with the identity of the individual authorizing the 
declassification, the declassification date and the classification guide 
which served as the basis for the declassification. Individuals 
authorizing the declassification shall ensure that the following marking 
is affixed on RD and FRD documents which they declassify:

    Declassified on:
________________________________________________________________________
(Date)

    Authorizing Individual:

________________________________________________________________________
(Name and position or title)

    Authority:

________________________________________________________________________
(Classification Guide--title and date)



Sec. 1045.41  Use of classified addendums.

    (a) In order to maximize the amount of information available to the 
public and to simplify document handling procedures, document 
originators should segregate RD or FRD into an addendum whenever 
practical. When RD or FRD is segregated into an addendum, the originator 
shall acknowledge the existence of the classified addendum unless such 
an acknowledgment would reveal classified information.

[[Page 978]]

    (b) When segregation of RD or FRD into an addendum is not practical, 
document originators are encouraged to prepare separate unclassified 
versions of documents with significant public interest.
    (c) When documents contain environmental, safety or health 
information and a separate unclassified version cannot be prepared, 
document originators are encouraged to provide a publicly releasable 
rationale for the classification of the documents.



Sec. 1045.42  Mandatory and Freedom of Information Act reviews for declassification of restricted data and formerly restricted data documents.

    (a) General. (1) Agencies with documents containing RD and FRD shall 
respond to mandatory review and Freedom of Information Act (FOIA) 
requests for these documents from the public.
    (2) In response to a mandatory review or Freedom of Information Act 
request, DOE or DoD may refuse to confirm or deny the existence or 
nonexistence of the requested information whenever the fact of its 
existence or nonexistence is itself classified as RD or FRD.
    (b) Processing Requests. (1) Agencies shall forward documents 
containing RD to DOE for review.
    (2) Agencies shall forward documents containing FRD to the DOE or to 
the DoD for review, depending on which is the originating agency.
    (3) The DOE and DoD shall coordinate the review of RD and FRD 
documents as appropriate.
    (4) The review and appeal process is that described in subpart D of 
this part except for the appeal authority. DOE and DoD shall not forward 
RD and FRD documents to the Interagency Security Classification Appeals 
Panel (ISCAP) for appeal review unless those documents also contain NSI. 
In such cases, the DOE or DoD shall delete the RD and FRD portions prior 
to forwarding the NSI and unclassified portions to the ISCAP for review.
    (5) Information Declassification Actions resulting from appeal 
reviews. (i) Appeal reviews of RD or FRD documents shall be based on 
existing classification guidance. However, the Director of 
Classification shall review the RD and FRD information in the appealed 
document to determine if it may be a candidate for possible 
declassification.
    (ii) If declassification of the information appears appropriate, the 
Director of Classification shall initiate a formal declassification 
action and so advise the requester.
    (c) Denying Official. (1) The denying official for documents 
containing RD is the Director of Classification.
    (2) The denying official for documents containing FRD is either the 
Director of Classification or an appropriate DoD official.
    (d) Appeal Authority. (1) The appeal authority for RD documents is 
the Chief Health, Safety and Security Officer.
    (2) The appeal authority for FRD documents is either the Chief 
Health, Safety and Security Officer, or an appropriate DoD official.
    (e) The denying official and appeal authority for Naval Nuclear 
Propulsion Information is the Director, Office of Naval Reactors.
    (f) RD and FRD information contained in documents shall be withheld 
from public disclosure under exemption 3 of the FOIA (5 U.S.C. 522 
(b)(3)) because such information is exempt under the statutory 
jurisdiction of the Atomic Energy Act.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



Sec. 1045.43  Systematic review for declassification.

    (a) The Secretary shall ensure that RD documents, and the DoD shall 
ensure that FRD documents, are periodically and systematically reviewed 
for declassification. The focus of the review shall be based on the 
degree of public and researcher interest and likelihood of 
declassification upon review.
    (b) Agencies with RD or FRD document holdings shall cooperate with 
the Director of Classification (and with the DoD for FRD) to ensure the 
systematic review of RD and FRD documents.
    (c) Review of documents in particular areas of public interest shall 
be considered if sufficient interest is demonstrated. Proposals for 
systematic document reviews of given collections or subject areas should 
be addressed to the Director, Office of Classification,

[[Page 979]]

HS-90/Germantown Building, U.S. Department of Energy, 1000 Independence 
Avenue SW., Washington, DC 20585-1290.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



Sec. 1045.44  Classification review prior to public release.

    Any person with authorized access to RD or FRD who generates a 
document intended for public release in an RD or FRD subject area shall 
ensure that it is reviewed for classification by the appropriate DOE 
organization (for RD) or the appropriate DOE or DoD organization (for 
FRD) prior to its release.



Sec. 1045.45  Review of unmarked documents with potential restricted data or formerly restricted data.

    (a) Individuals reviewing NSI records of permanent historical value 
under the automatic or systematic review provisions of E.O. 12958 may 
come upon documents that they suspect may contain RD or FRD, but which 
are not so marked. Such documents are not subject to automatic 
declassification.
    (b) Such documents shall be reviewed by an RD Classifier as soon as 
possible to determine their classification status. Assistance may be 
requested from the Director of Classification.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



Sec. 1045.46  Classification by association or compilation.

    (a) If two pieces of unclassified information reveal classified 
information when associated, then RD classifiers may classify the 
document.
    (b) RD classifiers may classify a document because a number of 
pieces of unclassified information considered together contain some 
added value such as completeness or comprehensiveness of the information 
which warrants classification.



    Subpart D_Executive Order 12958: ``Classified National Security 
             Information'' Requirements Affecting the Public



Sec. 1045.50  Purpose and scope.

    This subpart describes the procedures to be used by the public in 
questioning or appealing DOE decisions regarding the classification of 
NSI under E.O. 12958 and 32 CFR part 2001.



Sec. 1045.51  Applicability.

    This subpart applies to any person with authorized access to DOE NSI 
or who desires access to DOE documents containing NSI.



Sec. 1045.52  Mandatory declassification review requests.

    All DOE information classified as NSI is subject to review for 
declassification by the DOE if:
    (a) The request for a review describes the document containing the 
information with sufficient specificity to enable the agency to locate 
it with a reasonable amount of effort;
    (b) The information is not exempted from search and review under the 
Central Intelligence Agency Information Act;
    (c) The information has not been reviewed for declassification 
within the past 2 years; and
    (d) The request is sent to the Director, Office of Classification, 
HS-90/Germantown Building, U.S. Department of Energy, 1000 Independence 
Avenue SW., Washington, DC 20585-1290.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



Sec. 1045.53  Appeal of denial of mandatory declassification review requests.

    (a) If the Department has reviewed the information within the past 2 
years, the request may not be processed. If the information is the 
subject of pending litigation, the processing of the request may be 
delayed pending completion of the litigation. The Department shall 
inform the requester of this fact and of the requester's appeal rights.
    (b) When the Director of Classification has denied a request for 
review of

[[Page 980]]

NSI, the requester may, within 30 calendar days of its receipt, appeal 
the determination to the Director of Security Affairs.
    (c) Elements of appeal. The appeal shall be in writing and addressed 
to the Chief Health, Safety and Security Officer, HS-1/Forrestal 
Building, Department of Energy, 1000 Independence Avenue SW, Washington, 
DC 20585. The appeal shall contain a concise statement of grounds upon 
which it is brought and a description of the relief sought. It should 
also include a discussion of all relevant authorities which include, but 
are not limited to DOE (and predecessor agencies) rulings, regulations, 
interpretations, and decisions on appeals, and any judicial 
determinations being relied upon to support the appeal. A copy of the 
letter containing the determination being appealed shall be submitted 
with the appeal.
    (d) Receipt of appeal. An appeal shall be considered to be received 
upon receipt by the Chief Health, Safety and Security Officer.
    (e) Action within 60 working days. The appeal authority shall act 
upon the appeal within 60 working days of its receipt. If no 
determination on the appeal has been issued at the end of the 60-day 
period, the requester may consider his or her administrative remedies to 
be exhausted and may seek a review by the Interagency Security 
Classification Appeals Panel (ISCAP). When no determination can be 
issued within the applicable time limit, the appeal shall nevertheless 
continue to be processed. On expiration of the time limit, DOE shall 
inform the requester of the reason for the delay, of the date on which a 
determination may be expected to be issued, and of his or her right to 
seek further review by the ISCAP. Nothing in this subpart shall preclude 
the appeal authority and the requester from agreeing to an extension of 
time for the decision on an appeal. The Chief Health, Safety and 
Security Officer shall confirm any such agreement in writing and shall 
clearly specify the total time agreed upon for the appeal decision.
    (f) Form of action on appeal. The Chief Health, Safety and Security 
Officer's action on an appeal shall be in writing and shall set forth 
the reason for the decision. The Department may refuse to confirm or 
deny the existence or nonexistence of requested information whenever the 
fact of its existence or nonexistence is itself classified under E.O. 
12958.
    (g) Right of final appeal. The requester has the right to appeal a 
final Department decision or a failure to provide a determination on an 
appeal within the allotted time to the ISCAP for those appeals dealing 
with NSI. In cases where NSI documents also contain RD and FRD, the RD 
and FRD portions of the document shall be deleted prior to forwarding 
the NSI and unclassified portions to the ISCAP for review.

[62 FR 68509, Dec. 31, 1997, as amended at 71 FR 68737, Nov. 28, 2006]



PART 1046_PHYSICAL PROTECTION OF SECURITY INTERESTS--Table of Contents



                            Subpart A_General

Sec.
1046.1 Purpose.
1046.2 Scope.
1046.3 Definitions.
1046.4 Use of number and gender.

                  Subpart B_Protective Force Personnel

1046.11 Medical and physical fitness qualification standards.
1046.12 Physical fitness training program.
1046.13 Medical certification.
1046.14 Access authorization.
1046.15 Training and qualification for security skills and knowledge.
1046.16 Training certification.

Appendix A to Subpart B of Part 1046--Medical and Physical Fitness 
          Qualification Standards
Appendix B to Subpart B of Part 1046--Training and Qualification for 
          Security Skills and Knowledge

    Authority: Sec. 2201, Pub. L. 83-703, 68 Stat. 919 (42 U.S.C. 2011 
et seq.); sec. 7151, Pub. L. 95-91, 91 Stat. 565 (42 U.S.C. 7101 et 
seq.)

    Source: 58 FR 45791, Aug. 31, 1993, unless otherwise noted.

[[Page 981]]



                            Subpart A_General



Sec. 1046.1  Purpose.

    The purpose of this part is to set forth Department of Energy, 
hereinafter ``DOE,'' security policies and procedures regarding the 
physical protection of security interests.



Sec. 1046.2  Scope.

    This part applies to DOE contractor employees at Government-owned 
facilities, whether or not privately operated.



Sec. 1046.3  Definitions.

    For the purposes of this part:
    Contractor. The term ``contractor'' includes subcontractors at all 
tiers.
    Defensive combative personnel. Security police officers other than 
offensive combative personnel.
    Designated physician. An occupational medical physician who is 
recommended by the designated management supervisory official of the 
local DOE field office and authorized by the Director, Office of Health 
and Safety, to determine the medical and physical condition of 
protective force personnel. When an occupational medical physician is 
not available, physicians who are not board-certified in occupational 
medicine may be recommended and authorized by the Director as designated 
physicians for the purpose of this part. Designated physicians need not 
be employed full-time, but contractually shall be responsible to DOE for 
performance of the medical functions required by this part.
    Facility. An educational institution, manufacturing plant, 
laboratory, office building or other area utilized by the DOE or its 
contractors or subcontractors for the performance of work under DOE 
jurisdiction.
    Field organization. Any organizational component of the DOE located 
outside the Washington, DC metropolitan area.
    Guard. Also referred to as Security Officer, an unarmed individual 
who is employed for, and charged with, the protection of classified 
matter or Government property.
    Medical condition. General health, physical condition, and emotional 
and mental stability.
    Offensive combative personnel. Security police officers assigned to 
response force duties including pursuit and assault functions.
    Protective force personnel. Security officers and security police 
officers assigned to protective details, who are employed to protect DOE 
security interests.
    Requalification date. The date of expiration of current 
qualification at which demonstration of knowledge, skills and/or 
abilities is required to maintain specific job status.
    Security inspector. Also referred to as Security Police Officer, a 
uniformed person who is authorized under section 161.k of the Atomic 
Energy Act of 1954, as amended, or other statutory authority, to carry 
firearms and to make arrests without warrants and who is employed for, 
and charged with, the protection of classified matter, special nuclear 
material, or other Government property.
    Security police officer. An armed member of the protective force, 
previously referred to as a ``security inspector.''
    Special response team member. A security police officer who has been 
selected to be part of a unit specially trained to provide additional 
protection capability.

[58 FR 45791, Aug. 31, 1993, as amended at 71 FR 68738, Nov. 28, 2006]



Sec. 1046.4  Use of number and gender.

    As used in this part, words in the singular also include the plural 
and words in the masculine also include the feminine and vice versa, as 
the use may require.



                  Subpart B_Protective Force Personnel



Sec. 1046.11  Medical and physical fitness qualification standards.

    (a) Except as provided in paragraph (b) of this section DOE 
contractors shall not employ as protective force personnel any 
individual who fails to meet the applicable medical and physical fitness 
qualification standards as set forth in appendix A, to this subpart, 
``Medical and Physical Fitness Qualification Standards.''
    (b)(1) Incumbent security police officers shall meet the applicable 
physical fitness qualification standards.

[[Page 982]]

    (2) Current waivers to the medical qualification standards remain in 
effect and future waivers are permitted.
    (c) Each security police officer shall meet the applicable medical 
and physical fitness qualification standards every twelve months after 
the initial qualification. Each security officer shall meet the 
applicable medical standards every two (2) years after the initial 
qualification.

[58 FR 45792, Aug. 31, 1993; 58 FR 60102, Nov. 15, 1993]



Sec. 1046.12  Physical fitness training program.

    (a) Each incumbent security police officer, who has not met the 
applicable physical fitness qualification standard, shall participate in 
a DOE approved physical fitness training program. Once an incumbent 
security police officer has begun a physical fitness training program, 
it must be completed before the security police officer may take the 
applicable physical fitness qualification standards test. Once a 
physical fitness training program is completed, an incumbent security 
police officer has thirty (30) days to meet the applicable physical 
fitness qualification standards.
    (b) An incumbent security police officer who fails to qualify within 
thirty (30) days of completing a physical fitness training program shall 
participate in an additional training program. Upon completion of the 
additional physical fitness training program the security police officer 
has thirty (30) days to meet the applicable physical fitness 
qualification standard. No additional training or time extension to meet 
the standards is permitted except for unusual circumstances as set forth 
in appendix A to this subpart, paragraph G(2).
    (c) A security police officer who fails to requalify within thirty 
(30) days after his or her yearly anniversary date of the initial 
qualification shall participate in a physical fitness training program. 
Security police officers have a maximum of six (6) months from the 
anniversary date to requalify.
    (d) After his or her initial qualification, each incumbent security 
police officer shall participate in a DOE-approved physical fitness 
training program on a continuing basis. This training is for the purpose 
of ensuring that security police officers maintain the requisite 
physical fitness for effective job performance and to enable the 
individual security police officer to pass the applicable annual 
physical fitness requalification test without suffering any undue 
physical injury.



Sec. 1046.13  Medical certification.

    Each individual shall have a medical examination within thirty (30) 
days preceding participation in a physical fitness training program and 
the physical fitness qualification standards test, and a determination 
and written certification by a designated physician that there are no 
foreseeable medical risks as disclosed by the medical examination to the 
individual's participation in a physical fitness training program and 
the physical fitness qualification standards test.



Sec. 1046.14  Access authorization.

    Protective force personnel shall possess current access 
authorization for the highest level of classified matter to which they 
potentially have access. Security police officer personnel who have 
access to Category I or II quantities of special nuclear material (SNM) 
will be ``Q'' cleared. The specific level of access authorization for 
each duty assignment shall be designated by the site security 
organization and approved by the Head of the Field Element. Security 
police officers shall possess a minimum of an ``L'' or DOE Secret access 
authorization. Security police officers possessing less than ``Q'' 
access authorization shall not be assigned to offensive positions or 
duties where fully automatic firearms are required.



Sec. 1046.15  Training and qualification for security skills and knowledge.

    (a) DOE contractors shall only employ as protective force personnel 
individuals who successfully meet the requirements of a formal training 
program established in accordance with

[[Page 983]]

appendix B, ``Training and Qualification for Security Skills and 
Knowledge,'' to this subpart. The DOE contractor shall maintain 
individual training records until 1 year after the termination of the 
individual as a member of the protective force, unless a longer 
retention period is specified by other requirements.
    (b) DOE contractors shall employ as security police officers, 
including Special Response Team members, only individuals who are fully 
qualified and meet the firearms qualification standards set forth in 
appendix B to this subpart.



Sec. 1046.16  Training certification.

    DOE contractors shall employ as protective force personnel only 
individuals who have successfully completed all applicable training and 
qualification standards set forth in this subpart including appendices A 
and B. The DOE contractor shall maintain records of certification for 
each individual until 1 year after the termination of the individual as 
a member of the protective force, unless a longer retention period is 
specified by other requirements.



Sec. Appendix A to Subpart B of Part 1046--Medical and Physical Fitness 
                         Qualification Standards

    A. Applicability. This appendix A to subpart B of part 1046 provides 
the minimum, medical and physical fitness qualifications, criteria and 
guides to be used by designated physicians and management supervisory 
officials in advising responsible DOE officials whether the medical and 
physical condition of protective force personnel to be employed by DOE 
contractors reasonably assures that they can effectively perform their 
normal and emergency duties without undue hazard to themselves, fellow 
employees, the plant site and the general public.
    B. Application of Medical and Physical Fitness Qualification 
Standards.
    (1) The standards in this appendix are the minimum necessary to 
determine the medical and physical capability of protective force 
personnel to perform all normal and emergency duties effectively and 
safely.
    (2) Security police officer applicants shall meet the applicable 
medical and physical fitness standards in this appendix prior to 
assignment to security police officer duties.
    (3) Incumbent security police officers shall meet the applicable 
physical fitness standards in this appendix within one year of the 
effective date of theses standards and once every twelve months 
thereafter or shall be relieved of security police officer duties 
subject to the provisions in paragraph G of this appendix.
    (4) Incumbent security police officers shall meet the applicable 
medical standards prior to assignment to security police officer duties 
and annually thereafter, subject to the provisions of paragraph G of 
this appendix.
    (5) Security officers shall meet the applicable standards in this 
appendix prior to assignment to security officer duties and biennially 
thereafter, subject to the provisions of paragraph J of this appendix.
    (6) The determination of whether or not the examinee meets the 
medical standards in this appendix shall be made by a designated 
physician.
    (7) The determination of whether or not the examinee meets the 
physical fitness standards in this appendix shall be made by a 
designated management supervisory official in coordination with a 
designated physician.
    (8) When a designated physician determines that special medical 
evaluations and practical performance tests are necessary in order for 
an examinee to demonstrate the examinee's abilities to perform all 
normal and emergency duties, a determination of the adequacy of 
performance shall be made by a designated physician.
    (9) For those facilities where it is necessary to determine the 
medical qualification of security police officers or security police 
officer applicants to perform special assignment security police officer 
duties which might require exposure to unusually high levels of stress 
or physical exertion, field office managers may develop more stringent 
medical qualification requirements or additional medical or physical 
tests as necessary for such determinations. All such additional 
qualification requirements shall be forwarded, with justification, for 
the approval of the Chief Health, Safety and Security Officer, prior to 
application and if approved, shall be implemented in the same manner 
that these qualification standards have been implemented.
    (10) The provisions of DOE 5480.1A, ENVIRONMENTAL PROTECTION, 
SAFETY, AND HEALTH PROTECTION PROGRAM FOR DOE OPERATIONS, of 8-13-81, 
Chapter VIII, Part 4 (including any updates) apply for return to work 
after recovery from a temporarily disqualifying medical or surgical 
condition.
    C. Administrative Procedures and Requirements.
    (1) Medical Confidentiality and Retention of Medical Reports.

[[Page 984]]

    (a) The medical information and data on each employee or applicant 
shall be maintained as confidential, privileged medical information and 
shall not be released by a designated physician without the written 
consent and release of the employee or applicant, except as permitted or 
required by law.
    (b) When an individual has been examined by a designated physician, 
all available history and test results should be retained by the 
responsible DOE or DOE contractor medical department, in accordance with 
DOE 5480.1A, Chapter VIII, Part 4, whether or not the individual 
completes the examination, and whether or not potentially disqualifying 
defects are recorded.
    (2) Change of Health Status of Protective Force Personnel.
    (a) It is the specific responsibility of protective force employees 
to report immediately to their supervisor any known or suspected change 
in their health which might impair their capacity for duty or the safe 
and effective performance of assigned job duties.
    (b) Supervisory personnel have the responsibility to make a timely 
report to a designated physician on any behavioral and health changes 
and deterioration in work performance that is observed in protective 
force personnel under their jurisdiction. Examples of areas that may 
indicate medical and emotional problems include: incidents of ineptness, 
poor judgment, lack of physical or emotional stamina, social 
incompatibility, excessive absence, lateness, and a tendency to become 
accident prone.
    (3) Use of Corrective Devices.
    (a) When the use of corrective devices, such as eyeglasses and 
hearing aids, is required to enable an examinee to meet successfully 
medical qualification requirements, a determination shall be made by a 
designated line supervisory authority that the use of all such devices 
is compatible with all emergency and protective equipment that the 
examinee may be required to wear or use while performing his or her 
assigned job duties.
    (b) It is incumbent upon cognizant field office management to 
exercise all reasonable and practicable effort to accommodate required 
emergency and protective equipment to the use of corrective devices, 
including the provision of equally effective alternate equipment if such 
is available.
    (c) If eyeglasses are used, they shall be of the safety glass type.
    D. Security Police Officer Medical Qualification Standards.
    (1) General Qualifications. The examinee shall possess mental, 
sensorial, and motor skills as required to perform safely and 
effectively all assigned job duties. Such qualifications include:
    (a) Mental alertness and reliable judgment;
    (b) Acuity of senses and ability of expression sufficient to allow 
accurate communication by written, spoken, audible, visible, or other 
signals; and,
    (c) Motor power, range of motion, neuro-muscular coordination and 
dexterity.
    (2) Specific Minimum Qualifications.
    (a) Head, Face, Neck, Scalp. Configuration suitable for fitting and 
effective use of personal protective equipment when the use of such 
equipment is required by assigned normal or emergency job duties.
    (b) Nose. Ability to detect odor of products of combustion and of 
tracer and marker gases.
    (c) Mouth and Throat. Capacity for clear and audible speech as 
required for effective communication on the job.
    (d) Ears. Hearing loss in the better ear not to exceed 30 db average 
at 500, 1000, 2000 Hz with no level greater than 40 db in any of these 
frequencies (by ISO 1964 and ANSI 1969 audiometry). If a hearing aid is 
necessary, suitable testing procedures shall be used to assure auditory 
acuity equivalent to the above requirement.
    (e) Eyes
    (1) Distant Visual Acuity.
    (a) Uncorrected acuity of no less than 20/200 in the better eye.
    (b) Corrected acuity of at least 20/30 in the better eye and 20/40 
in the other eye.
    (c) If uncorrected distant vision in the better eye is not at least 
20/40, security police officers shall carry an extra pair of corrective 
lenses.
    (2) Near Visual Acuity. Corrected or uncorrected vision of at least 
20/40 (14/28 Snellen) in the better eye.
    (3) Color Vision. Ability to distinguish red, green, and yellow. 
Special color vision testing and certification shall be required where 
fine color discrimination is critical to the safe or effective 
performance of assigned job tasks.
    (4) Peripheral Vision. Field of vision in the horizontal meridian 
shall not be less than a total of 140 degrees.
    (5) Depth Perception. Adequate depth perception as measured by 
stereopsis or demonstration in a practical operational test.
    (f) Cardiorespiratory.
    (1) Respiratory. Capacity and reserve to perform physical exertion 
in emergencies at least equal to the demands of the job assignment, and 
ability to utilize respiratory protective filters and air supply masks 
when this emergency equipment is required by assigned job requirements.
    (2) Cardiovascular. Normal configuration and function. Capacity for 
exertion during emergencies. Normal resting pulse; regular pulse. Full 
symmetrical pulses in extremities and neck. Normotensive, with tolerance 
to rapid postural changes. If an examination reveals significant cardiac 
arrhythmia, murmur, enlargement, hypertension, hypotension, or other 
evidence of cardiovascular abnormality, an evaluation by a specialist in

[[Page 985]]

internal medicine or cardiology may be required and evaluated by a 
designated physician.
    (g) Abdomen and Viscera. No clinically significant abnormalities.
    (h) Musculo-Skeletal. Normal symmetrical structure, range of motion, 
and power.
    (i) Skin. No significant abnormal intolerance to chemical, 
mechanical and other physical agents. Capability to tolerate use of 
personal protective covering and decontamination procedures when 
required by assigned job duties.
    (j) Endocrine/Nutritional/Metabolic.
    Endocrine/nutritional/metabolic status adequate to meet the stresses 
and demands of assigned normal and emergency job duties. Ability to 
accommodate to changing work and meal schedules without potential or 
actual incapacity.
    (k) Hematopoietic. Normal function.
    (l) Lymphatic. Normal.
    (m) Neurological. Normal central and peripheral nervous system 
function.
    (n) Mental and Emotional. Normal mental status and an absence of 
neurotic or psychotic conditions which would affect adversely an ability 
to handle firearms safely or to act safely and effectively under normal 
and emergency conditions.
    (o) Laboratory.
    (1) Hemogram. Freedom from clinically significant abnormalities of 
the formed elements of the blood that could reasonably be expected to 
affect the safe and effective performance of assigned duties.
    (2) Urinalysis. Absence of proteinuria and glycosuria unless the 
absence of a disqualifying systemic or genitourinary condition and the 
absence of significant microscopic abnormality has been demonstrated.
    (3) Other Studies. Any other medical investigative procedure, 
including electrocardiogram and chest x-ray, which a designated 
physician considers necessary for adequate medical evaluation.
    E. Security Police Officer Medical Disqualification Standards.
    (1) Freedom from Incapacity. The examinee shall be free of any 
condition, habit, or practice which could reasonably be expected to 
result in sudden, subtle, or unexpected incapacitation.
    (2) Conditions for Medical Disqualification. The presence of any of 
the following conditions shall disqualify the examinee from employment 
as a security police officer.
    (a) Respiratory. Significant pulmonary pathology or decrease in 
pulmonary function which could interfere with the safe and effective 
performance of assigned job duties.
    (b) Cardiovascular.

1. Ischemic Heart Disease
2. Myocardial Infarction
3. Coronary Insufficiency
4. Angina Pectoris
5. Heart Failure
6. Significant Arrhythmia
7. Arterial Aneurysm
8. Significant Peripheral Vascular Insufficiency
9. Corrosive Heart Surgery
10. Corrective Arterial or Great Vessel Surgery
11. Prosthetic Valve
12. Artificial Pacemaker

    (c) Endocrine/Nutritional/Metabolic.
    (1) Any endocrine, nutritional, or metabolic condition that would 
not allow the examinee adequately to meet the stresses and demands of 
assigned normal or emergency job duties.
    (2) Inability to accommodate to changing work schedules or to a 
delay in meals without potential or actual incapacity.
    (3) Inability to tolerate prolonged use of wearing of protective 
garments such as respirator masks, air masks, or bullet resistant 
garments.
    (4) Diabetes mellitus requiring the use of insulin. Uncontrolled 
diabetes, ketoacidosis, or diabetic coma within the previous 2 years.
    (5) Obesity of such degree that it would interfere with the safe and 
effective performance of normal and emergency job duties.
    (d) Skin. Recurrent severe dermatitis or hypersensitivity to 
irritants or sensitizers sufficient to interfere with wearing required 
personal protective equipment or likely to be aggravated by or interfere 
with established or required decontamination procedures.
    (e) Hematopoietic Dysfunction. Clinically significant hematopoietic 
disorders which may interfere with the safe and effective performance of 
assigned job duties.
    (f) Malignant Neoplasms. Malignant neoplastic disease.
    (g) Neurological.
    (1) History of epilepsy or other convulsive disorder.
    (2) History of any disturbance of consciousness or neurological 
disease or any other presently existing condition that may interfere 
with the safe and effective performance of assigned job duties.
    (h) Eyes. Total blindness in one or both eyes.
    (i) Mental and Emotional. An established history or clinical 
diagnosis of any of the following:
    (1) Any psychological or mental condition which could cause impaired 
alertness, judgment, or motor ability. A history of clinically 
significant emotional or behavioral problems shall require thorough 
clinical evaluation which may include, but not necessarily be limited 
to, psychological testing and psychiatric evaluation.
    (2) Attempted suicide or an expressed threat of suicide.
    (3) A condition in which a person's intake of alcohol is sufficient 
to damage his or her

[[Page 986]]

physical health, job performance, personal functioning, or when alcohol 
has become a prerequisite to his or her daily functioning.
    (4) A condition in which a person is addicted to or dependent on 
drugs as evidenced by habitual use or a clear sense of need for the 
drug.
    (5) The use of prescribed or otherwise legally obtainable medication 
taken in such a dosage that a temporary delay in taking such medication 
might result in unacceptable incapacity. Examples of such medications 
are certain dosages or requirements for steroids, anticoagulants, 
antiarrhythmics, sedatives, and tranquilizers.
    F. Physical Fitness Standards for Security Police Officers.
    All persons authorized to carry firearms must meet a minimum 
standard of physical fitness. There are two categories for such persons: 
Offensive Combative and Defensive Combative. Persons not authorized to 
carry firearms are exempt from these physical fitness standards.
    (1) Offensive Combative Standard must be met by all security police 
officers assigned to response force duties. The standard is a one (1) 
mile run with a maximum qualifying time of 8 minutes 30 seconds and a 40 
yard prone-to-running dash with a maximum qualifying time of 8.0 
seconds.
    (2) Defensive Combative Standard must be met by all other security 
police officers authorized to carry firearms. The standard is one-half 
(0.5) mile run with a maximum qualifying time of 4 minutes 40 seconds 
and a 40 yard prone-to-running dash with a maximum qualifying time of 
8.5 seconds.
    (3) Qualification in the appropriate combative standard must be 
accomplished once every twelve months and under the supervision of the 
protective force training officer or other individuals designated by the 
responsible DOE field office.
    (4) Medical Certification.
    (a) Each individual who participates in a physical fitness training 
program to prepare to meet the physical fitness standards set forth in 
this appendix shall first be certified by a designated physician that he 
or she is medically fit to participate in the program. This 
certification shall be obtained not more than 30 days prior to each 
individual entering the physical fitness training program.
    (b) Before any individual takes the physical fitness standards test 
he or she shall first be certified by a designated physician that he or 
she is medically fit to take the physical fitness qualification test. 
This certification shall be obtained not more than 30 days before taking 
the physical fitness qualification test.
    (c) Individuals who require less than 30 days training prior to 
actual testing to meet the physical fitness standards need only obtain a 
single medical certification.
    (5) Initial Qualification Time Limit. Individuals authorized to 
carry firearms shall meet the applicable physical fitness standard by 
September 30, 1994 and annually, thereafter using the date of initial 
qualification as the anniversary date.
    (6) New Employees. Individuals authorized to carry firearms who are 
employed after September 30, 1993 shall meet the applicable physical 
fitness standard prior to his or her initial assignment to duties which 
requires such individual to carry firearms.
    (7) Training Program. Incumbent security police officers shall 
participate in a physical fitness training program.
    (8) Retesting. During each testing period a security police officer 
shall be permitted a maximum of six (6) and a minimum of two (2) 
opportunities to qualify or requalify before such security police 
officer must enter a training program or is removed from a security 
police officer position.
    G. Waiver of Security Police Officer Medical Standards and Time 
Extension to Meet Physical Fitness Standards.
    (1) Waivers of elements of the medical standards of this appendix 
may be granted for certain otherwise disqualifying medical or physical 
deficiencies by the cognizant field office management provided that:
    (a) The DOE field organization authority, in consultation with a 
designated physician, determines that a certain medical or physical 
defect may be considered for waiver without compromising the intent of 
these medical standards to assure that all security police officers are 
capable of safely and effectively performing all normal and emergency 
duties.
    (b) The individual demonstrates by medical examination and/or 
practical test, as determined necessary by a designated physician, the 
ability to perform effectively and safely all routine and emergency 
duties.
    (c) A statement of demonstrated ability must be prepared by a 
designated physician and must clearly (1) identify the individual, (2) 
state the nature and degree of the specific medical or physical defect, 
and (3) record the satisfactory medical evaluation and/or performance of 
the practical test required by a designated physician.
    (d) Waivers shall be reviewed, revalidated, and reissued at 
intervals not to exceed one (1) year.
    (e) Individuals who have been adversely affected by application of 
the standards may appeal the denial of waiver to the cognizant DOE 
safeguards and security field office for review within 60 days after the 
adverse action. Further evidence may be offered relating solely to the 
medical or physical fitness of the individual involved. Such individual 
may select a representative of his or her own choice to assist and/or 
appear in the individual's behalf in any appeal. After findings and a 
determination have been made at the field

[[Page 987]]

office level, such individual has a right to petition the Chief Health, 
Safety and Security Officer, within 30 days of the field office's 
determination for a final determination based upon his or her review of 
the record of the case.
    (2) There will be no waivers granted from the physical fitness 
standards set forth in paragraph F of this appendix. However, time 
extensions not to exceed 6 months may be granted on a case-by-case basis 
for those individuals who, because of a temporary medical or physical 
condition as certified by a designated physician, are unable to satisfy 
the physical fitness standards within the required time period without 
suffering undue physical harm.
    (H) Security Officer Medical Qualification Standards.
    (1) General Qualifications. The examinee shall possess mental, 
sensory, and motor skills as required to perform safely and effectively 
all assigned job duties. Such qualifications include:
    (a) Mental alertness and reliable judgment.
    (b) Acuity of senses and ability of expression sufficient to allow 
accurate communication by written, spoken, audible, visible, or other 
signals.
    (c) Motor power, range of motion, neuro-muscular coordination, and 
dexterity.
    (2) Specific Minimum Qualifications.
    (a) Head, Face, Neck, and Scalp. Configuration suitable for fitting 
and effective use of personal protective equipment when the use of such 
equipment is required by assigned normal or emergency job duties.
    (b) Nose. Ability to detect odor of products of combustion and of 
tracer or marker gases.
    (c) Mouth and Throat. Capacity for clear and audible speech as 
required for effective communication on the job.
    (d) Ears. Hearing loss not to exceed 50 db average at 500, 1000, and 
2000 Hz in one ear (by ISO 1964 or ANSI 1969 audiometry).
    (e) Eyes. Near and distant visual acuity, with or without correction 
of at least 20/40 in the better eye. One-eyed individuals may qualify.
    I. Security Officer Medical Disqualification Standards.
    (1) Freedom from Incapacity. The examinee shall be free of any 
condition, habit, or practice which could reasonably be expected to 
result in sudden, subtle, or unexpected incapacitation.
    (2) Conditions for Medical Disqualification. The presence of any of 
the following conditions normally shall disqualify the examinee from 
employment as a security officer.
    (a) Respiratory. Significant pulmonary pathology or decrease in 
pulmonary function which could interfere with the safe and effective 
performance of assigned job duties.
    (b) Cardiovascular.

1. Ischemic Heart Disease
2. Myocardial Infarction
3. Coronary Insufficiency
4. Angina Pectoris
5. Heart Failure
6. Significant Arrhythmia
7. Arterial Aneurysm
8. Significant Peripheral Vascular Insufficiency

    (c) Endocrine/Nutritional/Metabolic.
    (1) Diabetes Mellitus. Uncontrolled diabetes, ketoacidosis, or 
diabetic coma within the previous two years.
    (2) Obesity. Obesity of such degree that it would interfere with the 
safe and effective performance of normal and emergency job duties.
    (d) Hematopoietic Dysfunction. Clinically significant hematopoietic 
disorders which may interfere with the safe and effective performance of 
assigned job duties.
    (e) Malignant Neoplasms. Malignant neoplastic disease.
    (f) Neurological.
    (1) History of epilepsy or other convulsive disorder.
    (2) History of any disturbance of consciousness or neurological 
disease or any other presently existing condition that may interfere 
with the safe and effective performance of assigned job duties.
    (g) Mental and Emotional. An established history or clinical 
diagnosis of any of the following:
    (1) Any psychological or mental condition which could cause impaired 
alertness, judgment, or motor ability. A history of clinically 
significant emotional or behavioral problems shall require thorough 
clinical evaluation which may include, but not necessarily be limited 
to, psychological testing and psychiatric evaluation.
    (2) Attempted suicide or an expressed threat of suicide.
    (3) A condition in which a person's intake of alcohol is sufficient 
to damage his or her physical health, job performance, personal 
functioning, or when alcohol has become a prerequisite to his or her 
daily functioning.
    (4) A condition in which a person is addicted to or dependent on 
drugs as evidenced by habitual use or a clear sense of need for the 
drug.
    (5) The use of prescribed or otherwise legally obtainable medication 
taken in such a dosage that a temporary delay in taking such medication 
might result in unacceptable incapacity. For example, certain dosages or 
requirements for steroids, anticoagulants, antiarryhythmics, sedatives, 
tranquilizers, etc.
    J. Waiver of Security Officer Medical Standards.
    Waivers of elements of the medical standards of this appendix may be 
granted for certain otherwise disqualifying medical or

[[Page 988]]

physical deficiencies by the cognizant field office management provided 
that:
    (1) The DOE field organization authority, in consultation with a 
designated physician, determines that a certain medical or physical 
defect may be considered for waiver without compromising the intent of 
these medical standards to assure that all security officers are capable 
of safely and effectively performing all normal and emergency duties.
    (2) The individual demonstrates by medical examination and/or 
practical test, as determined necessary by a designated physician, the 
ability to perform effectively and safely all routing and emergency 
duties.
    (3) A statement of demonstrated ability must be prepared by a 
designated physician and must clearly (1) identify the individual, (2) 
state the nature and degree of the specific medical or physical defect, 
and (3) record the satisfactory medical evaluation and/or performance of 
the practical test required by a designated physician.
    (4) Waivers shall be reviewed, revalidated, and reissued at 
intervals not to exceed two (2) years.
    (5) Individuals who have been adversely affected by application of 
these medical standards may appeal the denial of waiver to the cognizant 
DOE safeguards and security field office for review within 60 days after 
the adverse action. Further evidence may be offered relating solely to 
the medical or physical fitness of the individual involved. Such 
individual may select a representative of his or her own choice to 
assist and appear in the individual's behalf in any appeal. After 
findings and a determination have been made at the field office level, 
such individual has a right to petition the Chief Health, Safety and 
Security Officer within 30 days of the field office's determination, for 
a final determination based upon his or her review of the record of the 
case.

[58 FR 45791, Aug. 31, 1993, as amended at 71 FR 68738, Nov. 28, 2006]



 Sec. Appendix B to Subpart B of Part 1046--Training and Qualification 
                    for Security Skills and Knowledge

    A. Applicability. This appendix B to subpart B of part 1046 
specifies performance oriented requirements for the security training 
and qualification of DOE contractor security officers and security 
police officers, including Special Response Team members.
    B. Training and Qualifications.
    (1) DOE contractors responsible for protective force personnel will 
establish formal qualification requirements to ensure the competencies 
needed by protective force members to perform the tasks required to 
fulfill their assigned responsibilities. The qualification requirements 
will be supported by a formal training program which develops and 
maintains, in an effective and efficient manner, the knowledge, skills 
and abilities required to perform assigned tasks. The qualification and 
training programs will be based upon criteria established by the 
National Training Center and approved by the Chief Health, Safety and 
Security Officer, in coordination with program offices. The formal 
qualification and training program shall:
    (a) Be based on a valid and complete set of job tasks, with 
identified levels of skills and knowledge needed to perform the tasks;
    (b) Be aimed at achieving a well-defined, minimum level of 
competency required to perform each task acceptably;
    (c) Employ standardized lesson plans with clear performance 
objectives as a basis for instruction;
    (d) Include valid performance-based testing to determine and certify 
job readiness (i.e. qualification);
    (e) Be documented so that individual and overall training status is 
easily accessible. Individual training records shall be retained until 1 
year after termination of the employee as a member of the protective 
force, unless a longer retention period is specified by other 
requirements.
    (2) DOE contractors responsible for training protective force 
personnel shall prepare and review annually a task analysis detailing 
all of the required actions for a specific job assignment. The task 
analysis shall be used to prepare a job description and as a basic input 
document for local training requirements and be approved by the Head of 
the Field Element.
    (3) Security Officers.
    (a) Training requirements. Prior to initial assignment to duty, each 
security officer shall successfully complete a basic training course 
designed to provide the minimum level of skills and knowledge needed to 
competently perform all tasks associated with security officer job 
responsibilities. The required tasks and minimum levels of competency 
shall be determined by a site-specific job analysis, but will include 
task areas found in paragraph (3)(c) of this appendix as appropriate. 
The training program will be approved by the Head of the Field 
Organization and where applicable will include, but not necessarily be 
limited to, the following types of instruction:
    1. Orientation/standards of conduct;
    2. Security education/operations and material control and 
accountability;
    3. Safety training;
    4. Legal requirements and responsibilities;
    5. Weaponless self-defense;
    6. Intermediate force weapons;
    7. Communications;
    8. Vehicle operations; and
    9. Post and patrol operations.

[[Page 989]]

    (b) Refresher Training. Each security officer will successfully 
complete a course of refresher training at least every 12 months to 
maintain the minimum level of competency required for the successful 
performance of tasks associated with security officer job 
responsibilities. The type and intensity of training shall be based on a 
site-specific job analysis and will be approved by the Head of the Field 
Organization. Failure to achieve a minimum level of competency shall 
result in the security officer's placement in a remedial training 
program. The remedial training program will be tailored to provide the 
security officer with the necessary training to afford a reasonable 
opportunity to meet the level of competency required by the job 
analysis. Failure to demonstrate competency at the completion of the 
remedial program shall result in loss of security officer status.
    (c) Knowledge, Skills and Abilities. Each security officer shall 
possess the skills necessary to protect DOE security interests from 
theft and other acts that may cause adverse impacts on national security 
or the health and safety of the public. The requirements for each 
security officer to demonstrate proficiency, familiarity, knowledge, 
skills, and abilities of the responsibilities identified in the job 
analysis include, but are not limited to:
    1. Procedures for conducting physical checks of repositories 
containing classified matter;
    2. Operation of all vehicles as required by duty assignment;
    3. Site and facility policies and procedures governing the security 
officer's role in site protection;
    4. Federal and state-granted authority applicable to assigned 
activities and relative responsibilities between the protective force 
and other law enforcement agencies;
    5. Post or patrol operations including:
a. Access control systems, procedures and operation
b. Contraband detection
c. Search techniques for persons, packages and vehicles
d. Badging and escort responsibilities
e. Familiarity and recognition of various types of sensitive matter 
being protected including the normal location, routine uses, and 
movements of the material at the duty post
f. Incident reporting
g. Methods of weaponless self defense

    (4) Security Police Officers.
    (a) Training requirements. Prior to initial assignment to duty, each 
security police officer shall successfully complete a basic training 
course designed to provide the minimum level of skills and knowledge 
needed to competently perform all tasks associated with security police 
officer job responsibilities. The required tasks and minimum levels of 
competency will be based on a site-specific job analysis, but will 
include task areas found in paragraph (4)(c) of this appendix as 
appropriate. The training program will be approved by the Head of the 
Field Organization and where applicable will include, but not 
necessarily be limited to, the following types of instruction:
1. Firearms training;
2. Orientation/standards of conduct;
3. Physical training;
4. Security education/operations and material control and 
accountability;
5. Safety training;
6. Legal requirements and responsibilities;
7. Tactical training;
8. Weaponless self-defense;
9. Intermediate force weapons;
10. Communications;
11. Vehicle operations; and
12. Post and patrol operations.

    (b) Refresher Training. Each security police officer shall 
successfully complete a course of refresher training at least every 12 
months to maintain the minimum level of competency required for the 
successful performance of tasks associated with security police officer 
job responsibilities. The type and intensity of training will be 
determined by a site-specific job analysis and will be approved by the 
Head of the Field Organization. Failure to achieve a minimum level of 
competency will result in the security police officer's placement in a 
remedial training program. The remedial training program will be 
tailored to provide the security police officer with the necessary 
training to afford a reasonable opportunity to meet the level of 
competency required by the job analysis. Failure to demonstrate 
competency at the completion of the remedial program shall result in 
loss of security police officer status.
    (c) Knowledge, Skills and Abilities. Each security police officer 
shall possess the individual and team skills necessary to enable that 
security police officer to protect DOE security interests from theft, 
sabotage, and other acts that may cause adverse impacts on national 
security or the health and safety of the public and to protect life and 
property. The requirements for each security police officer to 
demonstrate proficiency, familiarity, knowledge, skills, and abilities 
of the responsibilities identified in the job analysis include, but are 
not limited to:
    1. Knowledge and proficiency in the use and care of all weapons as 
required by duty assignment;
    2. Operation of all vehicles as required by duty assignment;
    3. Operation of all communication equipment as required by duty 
assignment;
    4. Knowledge of and the ability to apply site and facility policies 
and procedures governing the security police officer's role in site 
protection;
    5. Knowledge of Federal and state-granted authorities applicable to 
assigned activities

[[Page 990]]

and the relative responsibilities between the protective force and local 
law enforcement agencies in both normal and emergency operations.
    6. Knowledge of and the ability to apply DOE policy on the use of 
deadly force and limited arrest authority as set forth in 10 CFR part 
1047;
    7. Proficiency in post and patrol operations including:
a. Access control systems, procedures and operation
b. Contraband detection
c. Search techniques and systems for individuals, packages and vehicles
d. Badging and escort responsibilities
e. Response to and assessment of alarm annunciations and other 
indications of intrusion
f. Familiarity and recognition of various types of sensitive matter 
being protected including the normal location, routine uses, and 
movements of the material at the assigned duty post
g. Observation and physically checking buildings, rooms and repositories 
containing classified matter
h. Incident reporting
i. Response to civil disturbances (e.g., strikes, demonstrators)
j. Methods of self-defense and of arrest and detention
k. Basic procedures and elements of investigations
l. Tactical skills

    (5) Special Response Team.
    (a) Training requirements. Prior to initial assignment to duties as 
a Special Response Team member, a security police officer shall 
successfully complete a basic training course designed to provide the 
minimum level of skills and knowledge needed to competently perform all 
tasks associated with Special Response Team job responsibilities. The 
required tasks and minimum levels of competency will be based on a site-
specific job analysis, but will include the task areas identified for 
security police officers and specialized task areas found in paragraph 
(5)(c) of this appendix as appropriate. The training program will be 
approved by the Head of the Field Organization.
    (b) Refresher Training. Each security police officer assigned as a 
Special Response Team member will successfully complete a course of 
refresher training at least every 12 months to maintain the minimum 
level of competency required for the successful performance of tasks 
associated with security police officer and Special Response Team job 
responsibilities. The type and intensity of training will be determined 
by a site-specific job analysis and will be approved by the Head of the 
Field Organization.
    (c) Knowledge, Skills and Abilities. Special Response Team members 
will be security police officers with special training and shall possess 
the individual and team skills to provide additional protection 
capability as demanded by the particular targets, threats and 
vulnerabilities existing at their assigned DOE facilities. In addition 
to security police officer requirements, the requirements for each 
Special Response Team member to demonstrate proficiency, familiarity, 
knowledge, skills, and abilities of the responsibilities identified in 
the job analysis include, but are not limited to:
    1. Operate as a member of a mobile disciplined response team to 
engage and defeat adversaries as defined by the approved threat guidance 
for the facility.
    2. Provide and operate special weapons and other equipment which may 
be necessary to protect a particular facility or to effectively engage 
an adversary with advanced capabilities.
    3. Operate from special tactical vehicles which may be necessary for 
the protection of a particular facility.
    (6) Specialized Requirements. Each person who is assigned 
specialized responsibilities outside the scope of normal security police 
officer and Special Response Team duties shall successfully complete the 
appropriate basic and required periodic training. This training will 
enable the individual to achieve and maintain the minimum level of skill 
and knowledge needed to competently perform the tasks associated with 
the specialized job responsibilities, as well as maintain mandated 
certification, if applicable. Such personnel include, but are not 
limited to, flight crews, instructors, armorers, Central Alarm System 
operators, crisis negotiators, investigators, canine handlers, and law 
enforcement specialists. The scope of such duties will be based on site-
specific needs.
    (7) Supervisors.
    (a) Training Requirements. Protective force personnel who are 
assigned supervisory responsibilities shall successfully complete the 
appropriate basic and annual training necessary to achieve and maintain 
the minimum level of skill and knowledge needed to competently perform 
their supervisory job responsibilities. The required tasks and minimum 
levels of competency will be based on a site-specific job analysis and 
the specialized task areas found in paragraph (7)(b) of this appendix as 
appropriate.
    (b) Knowledge, Skills and Abilities. Each supervisor shall possess 
the skills necessary to effectively direct the actions of assigned 
personnel to protect DOE security interests from theft and other acts 
that may cause adverse impacts on national security or the health and 
safety of the public. The requirements for each supervisor to 
demonstrate proficiency, familiarity, knowledge, skills, and abilities 
of the responsibilities identified in the job analysis include, but are 
not limited to:

[[Page 991]]

    1. Knowledge of the duties and qualifications of all supervised 
personnel;
    2. Familiarity with the basic operating functions of facilities for 
which the supervisor has protection responsibilities;
    3. Assurance that subordinates and their equipment are ready for 
duty at the start of each duty shift and the inspection of each duty 
post at least twice per shift, personally or by other means;
    4. Assurance that all duty logs and reports have been properly 
completed, distributed, and acted upon.
    (8) Training Exercises. Exercises of various types will be included 
in the training process for the purposes of achieving and maintaining 
skills and assessing individual and team competency levels. The types 
and frequency of training exercises are to be determined by the Head of 
the Field Organization or by the training needs analysis conducted as 
part of the training program. The training program will include as a 
minimum, the following:
    (a) General. At least monthly, exercises shall be conducted 
involving each shift. These exercises are to be planned so as to 
exercise the protective force's ability to prevent the successful 
completion of those adversarial acts defined in the approved site-threat 
statement.
    (b) Special Response Teams. Personnel assigned Special Response Team 
responsibilities shall participate in exercises at least monthly. Such 
exercises will involve the type of situations and scenarios appropriate 
to site-specific conditions.
    (c) Local Law Enforcement Agencies. Protective forces shall request 
the FBI and local law enforcement agencies that would assist the 
protective force during an incident to participate in exercises at least 
annually.
    (d) Records of each training exercise shall be prepared for 
management review and planning and retained for a period of 1 year, 
unless a longer retention period is specified by other requirements.
    (9) Firearms Qualification Standards.
    (a) No persons shall be authorized to carry a firearm as a security 
police officer until the responsible Head of the Field Organization is 
assured that the individual who is to be armed is qualified in 
accordance with firearms standards.
    (b) As a minimum, each security police officer shall meet the 
applicable firearms qualification standards every 6 months. The local 
DOE field office shall permit the qualification to be accomplished any 
time prior to the actual 6 month requalification date. The actual 
qualification date will serve to establish a new requalification date 
for firearms qualification.
    (c) The DOE expects that protective force personnel will maintain 
firearms proficiency on a continuing basis. Therefore, in the case of a 
headquarters or field audit, or other situation directed by the Head of 
the Field Element, a security police officer may be required to 
demonstrate the ability to meet qualification standards. Failure to meet 
the performance standard will be treated as if the individual failed the 
first attempt during routine semiannual qualification. In this event the 
requirements of paragraphs (h), (i) and (j) of part 9 of appendix B 
subpart B will be followed.
    (d) Each security police officer shall qualify with all weapons 
required by duty assignment. Each security police officer shall be 
required to qualify with each firearm as indicated in the DOE 
requirements of the DOE qualification courses.
    (e) Each security police officer shall qualify with the same type of 
firearm and ammunition equivalent in trajectory and recoil as used while 
on duty. This ammunition shall be listed on the DOE approved ammunition 
list.
    (f) Each security police officer shall be given a basic principles 
of firearms safety presentation prior to any range activity. This does 
not require that a firearms safety presentation be given for each course 
of fire, but does require that prior to the start of range training or 
qualification for a given period (e.g., initial qualification, 
semiannual (every 6 months) qualification, training or range practice) 
each security police officer shall be given a range safety presentation.
    (g) Only courses of fire approved by the Chief Health, Safety and 
Security Officer as standardized DOE qualification courses, shall be 
used for firearms qualification.
    (h) Security police officers shall be allowed two initial attempts 
to qualify semiannually. A Range Master or other person in charge of the 
range will state to security police officer(s) on the firing line that 
``THIS IS A QUALIFYING RUN.'' Once this statement is made by the Range 
Master or person in charge, ``this qualifying run'' will constitute a 
qualification attempt. Each security police officer will be provided two 
qualifying attempts. The security police officer shall qualify during 
one of these attempts.
    (i) Failure to qualify shall result in suspension of a security 
police officer's authority under section 161.k. of the Atomic Energy Act 
of 1954, as amended, to carry firearms and to make arrests. The security 
police officer will then enter a standardized, remedial firearms 
training program developed by the National Training Center and approved 
by DOE. The remedial firearms training program will be a combination of 
basic weapon manipulation skills, firearms safety, and an additional 
segment of time tailored to provide the security police officer with the 
necessary individual training to afford a reasonable opportunity to meet 
the firearms qualification standards.
    (j) Any security police officer who, upon completion of the remedial 
training course,

[[Page 992]]

fails to qualify after two subsequent, additional attempts shall lose 
the security police officer status and his authority to carry firearms 
and to make arrests under section 161.k. of the Atomic Energy Act of 
1954.
    (k) Any security police officer who requires remedial training on 
three (3) consecutive semiannual qualification periods, with the same 
firearm, shall lose security police officer status.
    (l) An appropriate DOE record shall be maintained for each security 
police officer who qualifies or who attempts to qualify. Records will be 
retained until 1 year after separation of a protective force officer 
from security police officer duties, unless a longer retention period is 
specified by other requirements. A supervisor or the training officer 
will be designated in writing as the individual authorized to certify 
the validity of the scores.

[58 FR 45791, Aug. 31, 1993, as amended at 71 FR 68738, Nov. 28, 2006]



PART 1047_LIMITED ARREST AUTHORITY AND USE OF FORCE BY PROTECTIVE FORCE OFFICERS--Table of Contents



                           General Provisions

Sec.
1047.1 Purpose.
1047.2 Scope.
1047.3 Definitions.
1047.4 Arrest authority.
1047.5 Exercise of arrest authority--general guidelines.
1047.6 Use of physical force when making an arrest.
1047.7 Use of deadly force.

    Authority: Sec. 2201, Pub. L. 83-703, 68 Stat. 919 (42 U.S.C. 2011 
et seq.); Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 
565 (42 U.S.C. 7101 et seq.).

    Source: 50 FR 30929, July 31, 1985, unless otherwise noted.

                           General Provisions



Sec. 1047.1  Purpose.

    The purpose of this part is to set forth Department of Energy 
(hereinafter ``DOE'') policy and procedures on the exercise of arrest 
authority and use of force by protective force personnel.



Sec. 1047.2  Scope.

    This part applies to DOE and DOE contractor protective force 
personnel armed pursuant to section 161.k. of the Atomic Energy Act of 
1954 (42 U.S.C. 2011 et seq.) to protect nuclear weapons, special 
nuclear material, clasified matter, nuclear facilities, and related 
property.



Sec. 1047.3  Definitions.

    (a) Act means section 161.k. of the Atomic Energy Act of 1954, as 
amended, (42 U.S.C. 2201.k.).
    (b) Arrest means any act, including taking, seizing or detaining of 
a person, that indicates an intention to take a person into custody and 
that subjects the person to the control of the person making the arrest.
    (c) Citizen's Arrest means that type of arrest which can be made by 
citizens in general and which is defined in the statutory and case law 
of each state.
    (d) Contractor means contractors and subcontractors at all tiers.
    (e) LLEA means local law enforcement agencies: city, county; and 
state.
    (f) Offender means the person to be arrested.
    (g) Protective Force Officer means any person authorized by DOE to 
carry firearms under section 161.k. of the Atomic Energy Act of 1954.
    (h) Special Nuclear Material (SNM) means: (1) Plutonium, uranium 
enriched in the isotope 233 or in the isotope 235, and any other 
material which DOE, pursuant to the provisions of Section 51 of the 
Atomic Energy Act of 1954, determines to be special nuclear material, 
but does not include source material; or (2) any material artificially 
enriched by any of the foregoing, but does not include source material.



Sec. 1047.4  Arrest authority.

    (a) Under the Act, the authority of a DOE protective force officer 
to arrest without warrant is limited to the performance of official 
duties and should be exercised only in the enforcement of:
    (1) The following laws only if property of the United States which 
is in the custody of the DOE or its contractors is involved:
    (i) Felonies: (A) Arson--18 U.S.C. 81--(only applicable to ``special 
maritime and territorial jurisdiction of the United States'' as defined 
by 18 U.S.C. 7).
    (B) Building or property within special maritime and territorial 
jurisdiction--18 U.S.C. 1363--(only applicable

[[Page 993]]

to ``special maritime and territorial jurisdiction of United States'' as 
defined by 18 U.S.C. 7).
    (C) Civil disorder--18 U.S.C. 231.
    (D) Communication lines, stations or systems--18 U.S.C. 1362.
    (E) Concealment, removal or mutilation generally--18 U.S.C. 2071.
    (F) Conspiracy--18 U.S.C. 371--(violation of this section is a 
felony if the offense which is the object of the conspiracy is a 
felony).
    (G) Destruction of motor vehicles or motor vehicle facilities--18 
U.S.C. 33.
    (H) Explosives--18 U.S.C. 844(f).
    (I) Government property or contracts--18 U.S.C. 1361--(violation of 
section is a felony if property damage exceeds $100).
    (J) Military, naval or official passes--18 U.S.C. 499--(pertains to 
forging or altering official passes).
    (K) Personal property of the United States--18 U.S.C. 2112.
    (L) Public money, property, or records--18 U.S.C. 641--(violation of 
section is a felony if the property value exceeds $100).
    (M) Sabotage--18 U.S.C. 2151, 2153-2156.
    (N) Violation under Physical Security Convention--18 U.S.C. 831.
    (ii) Misdemeanors: (A) Conspiracy--18 U.S.C. 371--(violation of 
section is a misdemeanor if the offense which is the object of the 
conspiracy is a misdemeanor).
    (B) Explosives--18 U.S.C. 844(g).
    (C) Government property or contracts--18 U.S.C. 1361--(violation of 
section is a misdemeanor if the property damage does not exceed $100).
    (D) Official badges, identification cards, other insignia--18 U.S.C. 
701--(pertains to the manufacture, sale, and possession of official 
insignia).
    (E) Public money, property or records--18 U.S.C. 641--(violation of 
section is a misdemeanor if the property value does not exceed $100).
    (2) The following criminal provisions of the Atomic Energy Act:
    (i) Felonies: (A) Section 222. Violation of Specific Sections--42 
U.S.C. 2272.
    (B) Section 223. Violation of Sections Generally. 42 U.S.C. 2273.
    (C) Section 224. Communication of Restricted Data--42 U.S.C. 2274.
    (D) Section 225. Receipt of Restricted Data--42 U.S.C. 2275.
    (E) Section 226. Tampering with Restricted Data--42 U.S.C. 2276.
    (ii) Misdemeanors: (A) Section 227. Disclosure of Restricted Data--
42 U.S.C. 2277.
    (B) Section 229. Trespass Upon Commission (DOE) Installations--42 
U.S.C. 2278.
    (C) Section 230. Photographing, etc., of Commission (DOE) 
Installations--42 U.S.C. 2278.b.
    (b) Felony Arrests. A protective force officer is authorized to make 
an arrest for any felony listed in paragraph (a)(1)(i) or (a)(2)(i) of 
this section if the offense is committed in the presence of the 
protective force officer or if he or she has reasonable grounds to 
believe that the individual to be arrested has committed or is 
committing the felony.
    (1) In the presence of means that the criminal act must have taken 
place in the physical presence of (under the observation of) the 
protective force officer. Knowledge of the existence of a criminal 
violation obtained in any other way (e.g., information from other 
persons) is not sufficient to permit an arrest under this part of the 
Act.
    (2) Reasonable grounds to believe means that, at the moment of 
arrest, either the facts and circumstances within the knowledge of the 
protective force officer, or of which the protective force officer had 
reasonably trustworthy information, were sufficient to cause a prudent 
person to believe that the suspect had committed or was committing the 
offense.
    (c) Misdemeanor Arrest. A protective force officer is authorized to 
make an arrest for any misdemeanor listed in paragraph (a)(1)(ii) or 
(a)(2)(ii) of this section if the offense is committed in the presence 
of the protective force officer.
    (d) Other Authority. The Act does not provide authority to arrest 
for violations of state criminal statutes or for violations of federal 
criminal statutes other than those listed in paragraph (a) of this 
section. Therefore, arrests for violations of such other criminal 
statutes shall be made by other peace officers (e.g., U.S. Marshals or 
Federal Bureau of Investigation (FBI) agents for

[[Page 994]]

federal offenses; LLEA officers for state or local offenses) unless:
    (1) The protective force officer can make a citizen's arrest for the 
criminal offense under the law of the state,
    (2) The protective force officer is an authorized state peace 
officer or otherwise deputized by the particular state to make arrests 
for state criminal offenses, or
    (3) The protective force officer has been deputized by the U.S. 
Marshals Service or other federal law enforcement agency to make arrests 
for the criminal offense.
    (e) In those locations which are within the ``special maritime and 
territorial jurisdiction of the United States,'' as defined in 18 U.S.C. 
7, the Assimilative Crimes Act (18 U.S.C. 13) adopts the law of the 
state for any crime under state law not specifically prohibited by 
Federal statute and provides for federal enforcement of that state law. 
The local DOE Office of Chief Counsel, in coordination with contractor 
legal counsel, as appropriate, shall provide guidance in this matter.



Sec. 1047.5  Exercise of arrest authority--general guidelines.

    (a) In making an arrest, the protective force officer should 
announce his or her authority (e.g., ``Security Officer'') and that the 
person is under arrest prior to taking the person into custody. If the 
circumstances are such that making such announcements would be useless 
or dangerous to the officer or others, the protective force officer may 
dispense with these announcements.
    (b) The protective force officer at the time and place of arrest may 
search any arrested person for weapons and criminal evidence and the 
area into which the arrested person might reach for a weapon or to 
destroy evidence. Guidance on the proper conduct and limitations in 
scope of search and seizure of evidence shall be obtained from the local 
DOE Office of Chief Counsel, in coordination with contractor legal 
counsel, as appropriate.
    (c) After the arrest is effected, the arrested person shall be 
advised of his or her constitutional right against self-incrimination 
(Miranda warnings). If the circumstances are such that making such 
advisement is dangerous to the officer or others, this requirement may 
be postponed until the immediate danger has passed.
    (d) Custody of the person arrested should be transferred to other 
federal law enforcement personnel (i.e., U.S. Marshals or FBI agents) or 
to LLEA personnel, as appropriate, as soon as practicable. The arrested 
person should not be questioned or required to sign written statements 
unless:
    (1) Questioning is necessary for security or safety reasons (e.g., 
questioning to locate a bomb), or
    (2) Questioning is authorized by other federal law enforcement 
personnel or LLEA officers responsible for investigating the crime.



Sec. 1047.6  Use of physical force when making an arrest.

    (a) When a protective force officer has the right to make an arrest 
as discussed above, the protective force officer may use only that 
physical force which is reasonable and necessary to apprehend and arrest 
the offender; to prevent the escape of the offender; or to defend 
himself or herself or a third person from what the protective force 
officer believes to be the use or threat of imminent use of physical 
force by the offender. It should be noted that verbal abuse alone by the 
offender cannot be the basis under any circumstances for use of physical 
force by a protective force officer.
    (b) Protective force officers shall consult the local DOE Office of 
Chief Counsel and contractor legal counsel, as appropriate, for 
additional guidance on use of physical force in making arrests.



Sec. 1047.7  Use of deadly force.

    (a) Deadly force means that force which a reasonable person would 
consider likely to cause death or serious bodily harm. Its use may be 
justified only under conditions of extreme necessity, when all lesser 
means have failed or cannot reasonably be employed. A protective force 
officer is authorized to use deadly force only when one or more of the 
following circumstances exists:
    (1) Self-Defense. When deadly force reasonably appears to be 
necessary to

[[Page 995]]

protect a protective force officer who reasonably believes himself or 
herself to be in imminent danger of death or serious bodily harm.
    (2) Serious offenses against persons. When deadly force reasonably 
appears to be necessary to prevent the commission of a serious offense 
against a person(s) in circumstances presenting an imminent danger of 
death or serious bodily harm (e.g. sabotage of an occupied facility by 
explosives).
    (3) Nuclear weapons or nuclear explosive devices. When deadly force 
reasonably appears to be necessary to prevent the theft, sabotage, or 
unauthorized control of a nuclear weapon or nuclear explosive device.
    (4) Special nuclear material. When deadly force reasonably appears 
to be necessary to prevent the theft, sabotage, or unauthorized control 
of special nuclear material from an area of a fixed site or from a 
shipment where Category II or greater quantities are known or reasonably 
believed to be present.
    (5) Apprehension. When deadly force reasonably appears to be 
necessary to apprehend or prevent the escape of a person reasonably 
believed to: (i) have committed an offense of the nature specified in 
paragraphs (a)(1) through (a)(4) \1\ of this section; or (ii) be 
escaping by use of a weapon or explosive or who otherwise indicates that 
he or she poses a significant threat of death or serious bodily harm to 
the protective force officer or others unless apprehended without delay.
---------------------------------------------------------------------------

    \1\ These offenses are considered by the Department of Energy to 
pose a significant threat of death or serious bodily harm.
---------------------------------------------------------------------------

    (b) Additional Considerations Involving Firearms. If it becomes 
necessary to use a firearm, the following precautions shall be observed:
    (1) A warning, e.g. an order to halt, shall be given, if feasible, 
before a shot is fired.
    (2) Warning shots shall not be fired.



PART 1048_TRESPASSING ON STRATEGIC PETROLEUM RESERVE FACILITIES AND OTHER PROPERTY--Table of Contents



Sec.
1048.1 Purpose.
1048.2 Scope.
1048.3 Unauthorized entry.
1048.4 Unauthorized introduction of weapons or dangerous materials.
1048.5 Violations.
1048.6 Posting.
1048.7 Applicability of other laws.

    Authority: Sec. 662, Pub. L. No. 100-531, 102 Stat. 2652 (42 U.S.C. 
7270b); section 6, Pub. L. No. 100-185, 101 Stat. 1280 (18 U.S.C. 
3571(b)(5).

    Source: 56 FR 1910, Jan. 17, 1991, unless otherwise noted.



Sec. 1048.1  Purpose.

    The regulations in this part are issued for the protection and 
security of: (a) The Strategic Petroleum Reserve (SPR), its storage or 
related facilities, and real property subject to the jurisdiction or 
administration, or in the custody of DOE under part B, title I of the 
Energy Policy and Conservation Act, as amended (42 U.S.C. 6231-6247) 
(EPCA); and (b) persons upon the SPR or other property subject to DOE 
jurisdiction under part B, title I of the EPCA.



Sec. 1048.2  Scope.

    The regulations in this part apply to entry into or upon all SPR 
storage or related facilities, and real property subject to DOE 
jurisdiction or administration, or in its custody under part B, title I 
of the EPCA, which have been posted with a notice of the prohibitions 
and penalties contained in this part.



Sec. 1048.3  Unauthorized entry.

    Unauthorized entry into or upon an SPR facility or real property 
subject to this part, without authorization, is prohibited.



Sec. 1048.4  Unauthorized introduction of weapons or dangerous materials.

    Unauthorized carrying, transporting, introducing or causing to be 
introduced into or upon an SPR facility or real

[[Page 996]]

property subject to this part, of a dangerous weapon, explosive or other 
dangerous material likely to produce substantial injury or damage to 
persons or property, is prohibited.



Sec. 1048.5  Violations.

    Willful unauthorized entry, or willful unauthorized introduction of 
weapons or dangerous materials into or upon real property subject to 
this part, constitutes a violation of these regulations. Violation of 
these regulations is a misdemeanor, and a person convicted of violating 
these regulations is subject to the maximum fine permitted by law, 
imprisonment for not more than one year, or both.



Sec. 1048.6  Posting.

    Notices stating the pertinent prohibitions of Sec. Sec. 1048.3 and 
1048.4 and the penalties of Sec. 1048.5 will be conspicuously posted at 
all entrances of each facility or parcel of real property subject to the 
regulations in this part, and at such intervals along the perimeters 
thereof as will provide reasonable assurance of notice to persons about 
to enter.



Sec. 1048.7  Applicability of other laws.

    Nothing in this part shall be construed to affect the applicability 
of the provisions of State law or of any other Federal law.

[56 FR 1910, Jan. 17, 1991. Redesignated at 56 FR 48096, Sept. 24, 1991]



PART 1049_LIMITED ARREST AUTHORITY AND USE OF FORCE BY PROTECTIVE FORCE OFFICERS OF THE STRATEGIC PETROLEUM RESERVE--Table of Contents



Sec.
1049.1 Purpose.
1049.2 Scope.
1049.3 Definitions.
1049.4 Arrest authority.
1049.5 Exercise of arrest authority--General guidelines.
1049.6 Exercise of arrest authority--Use of non-deadly force.
1049.7 Exercise of arrest authority--Use of deadly force.
1049.8 Training of SPR Protective Force Officers and qualification to 
          carry firearms.
1049.9 Firearms and firearms incidents.
1049.10 Disclaimer.

    Authority: 42 U.S.C. 7101 et seq.

    Source: 56 FR 58492, Nov. 20, 1991, unless otherwise noted.



Sec. 1049.1  Purpose.

    The purpose of these guidelines is to set forth internal Department 
of Energy (DOE) security policies and procedures regarding the exercise 
of arrest authority and the use of force by DOE employees and DOE 
contractor and subcontractor employees while discharging their official 
duties pursuant to section 661 of the Department of Energy Organization 
Act.



Sec. 1049.2  Scope.

    These guidelines apply to the exercise of arrest authority and the 
use of force, as authorized by section 661 of the Department of Energy 
Organization Act, as amended, 42 U.S.C. 7101 et seq., by employees of 
DOE and employees of DOE's SPR security contractor and subcontractor. 
These policies and procedures apply with respect to the protection of:
    (a) The SPR and its storage or related facilities; and
    (b) Persons upon the SPR or its storage or related facilities.



Sec. 1049.3  Definitions.

    (a) Act means sections 661 of the Department of Energy Organization 
Act, as amended, (42 U.S.C. 7270a).
    (b) Arrest means an act resulting in the restriction of a person's 
movement, other than a brief consensual detention for purposes of 
questioning about a person's identity and requesting identification, 
accomplished by means of force or show of authority under circumstances 
that would lead a reasonable person to believe that he was not free to 
leave the presence of the officer.
    (c) Contractor means a contractor or subcontractor at any tier.
    (d) Deadly force means that force which a reasonable person would 
consider likely to cause death or serious bodily harm.
    (e) Protective Force Officer means a person designated by DOE to 
carry firearms pursuant to section 661 of the Act.
    (f) SPR means the Strategic Petroleum Reserve, its storage or 
related facilities, and real property subject to

[[Page 997]]

the jurisdiction or administration, or in the custody of the Department 
of Energy under part B of title I of the Energy Policy and Conservation 
Act (42 U.S.C. 6231-6247).
    (g) Suspect means a person who is subject to arrest by a Protective 
Force Officer as provided in these guidelines.



Sec. 1049.4  Arrest authority.

    (a) Under the Act, the authority of a DOE Protective Force Officer 
to arrest without warrant is to be exercised only in the performance of 
official duties of protecting the SPR and persons within or upon the 
SPR.
    (b) A Protective Force Officer is authorized to make an arrest for a 
felony committed in violation of laws of the United States, or for a 
misdemeanor committed in violation of laws of the United States if the 
offense is committed in the officer's presence.
    (c) A Protective Force Officer also is authorized to make an arrest 
for a felony committed in violation of laws of the United States if the 
Officer has reasonably grounds to believe that the felony has been 
committed, or that the suspect is committing the felony, and is in the 
immediate area of the felony or is fleeing the immediate area of the 
felony. ``Reasonable grounds to believe'' means that the facts and 
circumstances within the knowledge of the Protective Force Officer at 
the moment of arrest, and of which the Protective Force Officer has 
reasonably trustworthy information, would be sufficient to cause a 
prudent person to believe that the suspect had committed or was 
committing a felony.



Sec. 1049.5  Exercise of arrest authority--General guidelines.

    (a) In making an arrest, and before taking a person into custody, 
the Protective Force Officer should:
    (1) Announce the Protective Force Officer's authority (e.g., by 
identifying himself as an SPR Protective Force Officer);
    (2) State that the suspect is under arrest; and
    (3) Inform the suspect of the crime for which the suspect is being 
arrested. If the circumstances are such that making these announcements 
would be useless or dangerous to the Officer or to another person, the 
Protective Force Officer may dispense with these announcements.
    (b) At the time and place of arrest, the Protective Force Officer 
may search the person arrested for weapons and criminal evidence, and 
may search the area into which the person arrested might reach to obtain 
a weapon to destroy evidence.
    (c) After the arrest is effected, the person arrested shall be 
advised of his constitutional right against self-incrimination 
(``Miranda warnings''). If the circumstances are such that immediately 
advising the person arrested of this right would result in imminent 
danger to the Officer or other persons, the Protective Force Officer may 
postpone this requirement. The person arrested shall be advised of this 
right as soon as practicable after the imminent danger has passed.
    (d) As soon as practicable after the arrest is effected, custody of 
the person arrested should be transferred to other Federal law 
enforcement personnel (e.g., U.S. Marshals or FBI agents) or to local 
law enforcement personnel, as appropriate, in order to ensure that the 
person is brought before a magistrate without unnecessary delay.
    (e) Ordinarily, the person arrested shall not be questioned or 
required to sign written statements unless such questioning is:
    (1) Necessary to establish the identity of the person arrested and 
the purpose for which such person is within or upon the SPR;
    (2) Necessary to avert an immediate threat to security or safety 
(e.g., to locate a bomb); or
    (3) Authorized by other Federal law enforcement personnel or local 
law enforcement personnel responsible for investigating the alleged 
crime.



Sec. 1049.6  Exercise of arrest authority--Use of non-deadly force.

    (a) When a Protective Force Officer is authorized to make an arrest 
as provided in the Act, the Protective Force Officer may use only that 
degree of non-deadly force that is reasonable and necessary to apprehend 
and arrest the suspect in order to prevent escape or to defend the 
Protective Force Officer or other persons from what the Officer

[[Page 998]]

reasonably believes to be the use or threat of imminent use of non-
deadly force by the suspect. Verbal abuse by the suspect, in itself, is 
not a basis for the use of non-deadly force by a Protective Force 
Officer under any circumstances.
    (b) Protective Force Officers should consult the local DOE Office of 
Chief Counsel and contractor legal counsel for additional guidance on 
the use of non-deadly force in the exercise of arrest authority, as 
appropriate.



Sec. 1049.7  Exercise of arrest authority--Use of deadly force.

    (a) The use of deadly force is authorized only under exigent 
circumstances where the Protective Force Officer reasonably believes 
that such force is necessary to:
    (1) Protect himself from an imminent threat of death or from serious 
bodily harm;
    (2) Protect any person or persons in or upon the SPR from an 
imminent threat of death or serious bodily harm.
    (b) If circumstances require the use of a firearm by a Protective 
Force Officer, the Officer shall give a verbal warning (e.g., an order 
to halt), if feasible. A Protective Force Officer shall not fire warning 
shots under any circumstances.



Sec. 1049.8  Training of SPR Protective Force Officers and qualification to carry firearms.

    (a) Protective Force Officers shall successfully complete training 
required by applicable Department of Energy orders prior to receiving 
authorization to carry firearms. The Chief Health, Safety and Security 
Officer shall approve the course.
    (b) Prior to initial assignment to duty, Protective Force Officers 
shall successfully complete a basic qualification training course which 
equips them with at least the minimum level of competence to perform 
tasks associated with their responsibilities. The basic course shall 
include the following subject areas:
    (1) Legal authority, including use of deadly force and exercise of 
limited arrest authority;
    (2) Security operations, including policies and procedures;
    (3) Security tactics, including tactics for Protective Force 
Officers acting alone or as a group;
    (4) Use of firearms, including firearms safety and proficiency with 
all types of weapons expected to be used;
    (5) Use of non-deadly weapons, weapon-less self-defense, and 
physical conditioning;
    (6) Use of vehicles, including vehicle safety in routine and 
emergency situations;
    (7) Safety, first aid, and elementary firefighting procedures;
    (8) Operating in such a manner as to preserve SPR sites and 
facilities;
    (9) Communications, including methods and procedures.
    (c) After completing training, and receiving the appropriate 
security clearance, Protective Force Officers shall be authorized to 
carry firearms and exercise limited arrest authority. Protective Force 
Officers shall receive an identification card, which must be carried 
whenever on duty and whenever armed.
    (d) On an annual basis, each Protective Force Officer must 
successfully complete training sufficient to maintain at least the 
minimum level of competency required for the successful performance of 
all assigned tasks identified for Protective Force Officers.
    (e) Protective Force Officers shall be qualified in the use of 
firearms by demonstrating proficiency in the use of firearms on a 
semiannual basis prior to receiving authorization to carry firearms. 
Protective Force Officers shall demonstrate proficiency in the use of 
all types of weapons expected to be used while on duty under both day 
and night conditions. In demonstrating firearms proficiency, Protective 
Force Officers shall use firearms of the same type and barrel length as 
firearms used by Protective Force Officers while on duty, and the same 
type of ammunition as that used by Protective Force Officers on duty. 
Before a Protective Force Officer is qualified in the use of firearms, 
the Officer shall complete a review of the basic principles of firearms 
safety.
    (f) Protective Force Officers shall be allowed two attempts to 
qualify in the use of firearms. Protective Force Officers shall qualify 
in the use of firearms

[[Page 999]]

within six months of failing to qualify. If an Officer fails to qualify, 
the Officer shall complete a remedial firearms training program. A 
Protective Force Officer who fails to qualify in the use of firearms 
after completion of a remedial program, and after two further attempts 
to qualify shall not be authorized to carry firearms or to exercise 
limited arrest authority.

[56 FR 58492, Nov. 20, 1991, as amended at 71 FR 68738, Nov. 28, 2006]



Sec. 1049.9  Firearms and firearms incidents.

    (a) Protective Force Officers shall receive firearms of a type 
suitable to adequately protect persons and property within or upon the 
SPR. Firearms and ammunition shall be secured, inventoried, and 
maintained in accordance with applicable Department of Energy orders, 
when not in use.
    (b) The authority of a Protective Force Officer to carry firearms 
and to exercise limited arrest authority shall be suspended if the 
Officer participates in an incident involving the use of firearms. In 
such circumstances, the Officer shall be assigned to other duties, 
pending completion of an investigation.
    (c) Incidents involving the discharge of firearms shall be reported 
to the Department of Energy Headquarters Emergency Operations Center 
immediately, and to the SPR Project Management Office Security Division 
within 24 hours. The Strategic Petroleum Reserve Project Manager shall 
appoint a committee to investigate the incident.



Sec. 1049.10  Disclaimer.

    These guidelines are set forth solely for the purpose of internal 
Department of Energy guidance. These guidelines do not, and are not 
intended to, and may not be relied upon to, create any substantive or 
procedural rights enforceable at law by any party in any matter, civil 
or criminal. These guidelines do not place any limitations on otherwise 
lawful activities of Protective Force Officers or the Department of 
Energy.



PART 1050_FOREIGN GIFTS AND DECORATIONS--Table of Contents



                            Subpart A_General

Sec.
1050.101 Purpose and scope.
1050.102 Applicability.
1050.103 Definitions.
1050.104 Responsibilities and authorities.

   Subpart B_Guidelines for Acceptance of Foreign Gifts or Decorations

1050.201 Policy against accepting foreign gifts or decorations.
1050.202 Allowable acceptance of gifts.
1050.203 Acceptance of decorations.
1050.204 Advance approval for acceptance of gifts or decorations.

                  Subpart C_Procedures and Enforcement

1050.301 Reports.
1050.302 Use or disposal of gifts and decorations accepted on behalf of 
          the United States.
1050.303 Enforcement.

                 Subpart D_Gifts to Foreign Individuals

1050.401 Prohibition against use of appropriated funds.

Appendix I to Part 1050--DOE Form 3735.2--Foreign Gifts Statement
Appendix II to Part 1050--DOE Form 3735.3--Foreign Travel Statement

    Authority: The Constitution of the United States, Article I, Section 
9; 5 U.S.C. 7342; 22 U.S.C. 2694; 42 U.S.C. 7254 and 7262; 28 U.S.C. 
2461 note.

    Source: 45 FR 53972, Aug. 13, 1980, unless otherwise noted.



                            Subpart A_General



Sec. 1050.101  Purpose and scope.

    These regulations implement the provisions of the Foreign Gifts and 
Decorations Act (5 U.S.C. 7342), which establishes policies and 
procedures pertaining to the acceptance, use, and disposition of gifts 
or decorations from foreign governments. If an employee of Department of 
Energy (DOE) meets the requirements of these regulations, he or she is 
deemed to be in compliance with the DOE Conduct of Employees 
regulations, 10 CFR part 1010.

[[Page 1000]]



Sec. 1050.102  Applicability.

    These regulations apply to all DOE employees, including special 
Government employees, and civilian and military personnel of other 
Government agencies regularly detailed to DOE, and to spouses and 
dependents of such personnel. These regulations apply to all employees 
of the Federal Energy Regulatory Commission (FERC) to the extent the 
Commission by rule makes these regulations applicable to FERC employees. 
These regulations do not apply to gifts and bequests accepted by the 
Department as authorized by section 652 of the Department of Energy 
Organization Act (42 U.S.C. 7262), except as set forth in Sec. 
1050.202(d) of this part. These regulations do not apply to assistance 
from a foreign government for participation by DOE employees in foreign 
cultural exchange programs pursuant to the Mutual Educational and 
Cultural Exchange Act (22 U.S.C. 2458a).



Sec. 1050.103  Definitions.

    (a) Employee means--
    (1) An employee of DOE or FERC as defined by 5 U.S.C. 2105 
(employees of DOE contractors are specifically excluded);
    (2) A special Government employee as defined in 18 U.S.C. 202(a), 
and an expert or consultant who is under contract to the DOE pursuant to 
5 U.S.C. 3109, including, in the case of an organization performing 
services under such section, any individual involved in the performance 
of such services;
    (3) A member of a Uniformed Service or an employee of another 
Government agency assigned or detailed to the DOE or FERC;
    (4) The spouse of an individual described in paragraphs (a)(1) 
through (a)(3) of this section (unless such individual and his or her 
spouse are legally separated) or a dependent (within the meaning ot 
section 152 of the Internal Revenue Code of 1954) of such an individual, 
other than a spouse or dependent who is an employee under paragraphs 
(a)(1) through (a)(3).
    (b) Foreign government means:
    (1) Any unit of foreign governmental authority, including any 
foreign national, State, local, or municipal government;
    (2) Any international or multinational organization whose membership 
is composed of any unit of foreign government described in paragraph 
(b)(1); and
    (3) Any agent or representative of any such unit or such 
organization, while acting as such.
    (c) Gift means a tangible or intangible present (other than a 
decoration) tendered by, or received from, a foreign government.
    (d) Decoration means an order, device, medal, badge, insignia, 
emblem, or award tendered by, or received from, a foreign government.
    (e) Minimal value means that value as defined in regulations 
prescribed by the Administrator of General Services, in consultation 
with the Secretary of State, to reflect changes in the consumer price 
index for the immediately preceding 3-year period in accordance with the 
definition of ``minimal value'' as set forth in the Federal Property 
Management Regulations of title 41 of the Code of Federal Regulations as 
applied to the Utilization, Donation, and Disposal of Foreign Gifts and 
Decorations.
    (f) The Act means the Foreign Gifts and Decorations Act, 5 U.S.C. 
7342.
    (g) Appropriate General Counsel means either the DOE General Counsel 
when the employee involved is an employee of that portion of the DOE 
which excludes FERC, or the FERC General Counsel when the employee 
involved is an employee of FERC.

[45 FR 53972, Aug. 13, 1980, as amended at 59 FR 44896, Aug. 31, 1994]



Sec. 1050.104  Responsibilities and authorities.

    (a) The Director of Administration shall:
    (1) Assure that all employees are given access to or a copy of the 
Act and these regulations;
    (2) Maintain liaison with the Department of State and prepare 
Departmental reports to the Department of State consistent with the Act 
and these regulations;
    (3) Provide advice and assistance on implementation of the act and 
these regulations, in coordination with the Assistant Secretary for 
International

[[Page 1001]]

Affairs (IA) and the appropriate General Counsel;
    (4) Collect and maintain for public inspection all employee 
statements submitted pursuant to these regulations;
    (5) Arrange for independent appraisal of the value of gifts or 
decorations, upon the request of the General Services Administration or 
the Inspector General (or other appropriate DOE official); and
    (6) Accept and maintain custody and make all determinations 
regarding the use and disposition of all gifts and decorations accepted 
by employees on behalf of the United States, in coordination with IA, 
the appropriate General Counsel, and, for gifts to the Secretary, Deputy 
Secretary or Under Secretary, the appropriate official in the Office of 
the Secretary.
    (b) The Assistant Secretary for International Affairs (IA) shall 
assist the Directorate of Administration, where appropriate, in making 
determinations concerning the effects of the proposed acceptance, use, 
or disposition of a foreign gift or decoration on the foreign relations 
of the United States.
    (c) The appropriate General Counsel shall assist the Directorate of 
Administration in matters relating to the interpretation and application 
of the Act, and these and any related regulations, and shall provide 
counseling and interpretation regarding the Act, and these and any 
related regulations, to employees.
    (d) The Inspector General shall investigate suspected violations of 
these regulations pursuant to Sec. 1050.303 below.



   Subpart B_Guidelines for Acceptance of Foreign Gifts or Decorations



Sec. 1050.201  Policy against accepting foreign gifts or decorations.

    (a) The Constitution of the United States, Article I, section 9, 
clause 8, provides that ``* * * no Person holding any Office of Profit 
or Trust under * * * [the United States], shall, without the consent of 
the Congress, accept of any present, Emolument, Office, or Title, of any 
kind whatever, from any * * * foreign State.'' In the Foreign Gifts and 
Decorations Act the Congress consented to the acceptance by Federal 
employees of gifts and decorations with certain constraints and under 
certain procedures. Acceptance of any gift or decoration not consistent 
with this Act, the Department of Energy Organization Act, or the 
regulations in this part is prohibited.
    (b) No employee shall request or otherwise encourage the tender of a 
gift or decoration from a foreign government. No employee shall accept a 
gift or decoration from a foreign government except as provided in 
Sec. Sec. 1050.202 or 1050.203 of this part and in accordance with the 
additional procedures set forth in Sec. Sec. 1050.204 and 1050.301 of 
this part.



Sec. 1050.202  Allowable acceptance of gifts.

    (a) An employee may accept and retain gifts from foreign governments 
where the gift is tendered or received as a souvenir or mark of 
courtesy, and is of minimal value. Initial responsibility for 
determining the value of a gift lies with the employee.
    (b) Subject to the prior approval requirements described in Sec. 
1050.204(a) of this part, an employee may accept gifts of more than 
minimal value, tendered as a souvenir or mark of courtesy, where it 
appears that refusal of the gift would likely cause offense or 
embarrassment or otherwise adversely affect the foreign relations of the 
United States. Otherwise, an employee, when offered a gift of more than 
minimal value from a foreign government, other than a gift designated in 
paragraph (c) of this section, should advise the donor that acceptance 
of such gifts by the employee is contrary to the policy of the United 
States. If a gift described in this paragraph is accepted by an employee 
and not immediately returned thereby, it shall be deemed to have been 
accepted on behalf of the United States. Upon acceptance it becomes the 
property of the United States. Within 60 days after acceptance by the 
employee, the gift shall be deposited with the Directorate of 
Administration for disposal or official Departmental use as determined 
by the Directorate of Administration, in accordance with Sec. 1050.302 
of this part, and an appropriate statement shall be filed by the

[[Page 1002]]

employee in accordance with Sec. 1050.301(a) of this part.
    (c) Subject to the prior approval requirements described in Sec. 
1050.204(a) of this part, an employee may accept and retain gifts of 
more than minimal value:
    (1) Where the gift is in the nature of an educational scholarship.
    (2) Where the gift is in the form of medical treatment.

An employee accepting a gift pursuant to this paragraph shall file an 
appropriate statement in accordance with Sec. 1050.301(a) of this part.
    (d) An employee may accept gifts (whether or not of minimal value) 
of travel or expenses for travel (such as transportation, food, lodging, 
or entertainment) taking place entirely outside of the United States 
where the provision of such travel or expenses is in accordance with 
diplomatic custom or treaty and where the Head of the employee's Office 
grants prior written approval. A spouse or dependent may accept gifts of 
travel or travel expenses when accompanying the employee, provided this 
is done with the prior written approval of the Head of the employee's 
Office. The Head of the employee's Office shall consult with the 
appropriate General Counsel in connection with granting approval under 
this paragraph. Travel or expenses for travel may not be accepted merely 
for the personal benefit, pleasure, enjoyment, or financial enrichment 
of the individual involved. An appropriate statement shall be filed in 
accordance with Sec. 1050.301(b) of this part. When any portion of the 
travel (such as the origination or termination of a flight) is within 
the United States, it may not be paid for by a foreign government, 
except as set forth in paragraph (e) of this section.
    (e) Pursuant to section 652 of the DOE Organization Act, an employee 
may accept gifts from the International Atomic Energy Agency or other 
energy-related international organizations (e.g., the Nuclear Energy 
Agency and the International Energy Agency) covering transportation 
expenses to or from a foreign country in connection with scientific or 
technical assistance projects of such agencies for which the Department 
of Energy has lead U.S. Government agency responsibility. Such gifts may 
be accepted only with the prior written approval of the Head of the 
employee's Office, who is hereby delegated authority to accept such 
gifts in accordance with section 652.



Sec. 1050.203  Acceptance of decorations.

    (a) An employee may accept, retain and wear a decoration tendered by 
a foreign government in recognition of active field service in time of 
combat operations or awarded for other outstanding or unusually 
meritorious performance.
    (b) Acceptance of a decoration in accordance with paragraph (a) of 
this section shall be reviewed and approved by the Directorate of 
Administration in accordance with Sec. 1050.204 of this part. 
Otherwise, it will be deemed to have been accepted on behalf of the 
United States, shall become the property of the United States, and shall 
be deposited, within 60 days of acceptance, with the Directorate of 
Administration for disposal or official Departmental use as determined 
by the Directorate of Administration in accordance with Sec. 1050.302 
of this part.



Sec. 1050.204  Advance approval for acceptance of gifts or decorations.

    (a) If an employee is advised that a gift of more than minimal value 
as described in Sec. 1050.202 (b) or (c) is to be tendered to him or 
her, the employee shall, if time permits, request the written advice of 
the Directorate of Administration regarding the appropriateness of 
accepting or refusing the gift. A request for approval shall be 
submitted to the Directorate of Administration in writing, stating the 
nature of the gift and the reasons for which it is being tendered. The 
Directorate of Administration shall consult with Assistant Secretary for 
International Affairs and the appropriate General Counsel in connection 
with advising the employee. If such advice cannot be obtained and 
refusal of the gift would likely cause offense or embarrassment or 
otherwise adversely effect the foreign relations of the United States, 
the gift may be accepted, but the Directorate of Administration shall be 
informed as soon as possible. In either

[[Page 1003]]

event, the employee shall proceed as provided in Sec. Sec. 1050.202 and 
1050.301 of this part.
    (b) Where an employee is notified of the intent of a foreign 
government to award him a decoration for outstanding or unusually 
meritorious service, approval required under Sec. 1050.203 should be 
obtained prior to acceptance of the award. A request for approval shall 
be submitted to the Directorate of Administration in writing, stating 
the nature of the decoration and the reasons for which it is being 
awarded. The Directorate of Administration shall consult with the 
Assistant Secretary for International Affairs and the appropriate 
General Counsel. If time does not permit the employee to obtain approval 
for the award of the decoration before its receipt, the employee may 
accept it, but shall seek such approval immediately thereafter.



                  Subpart C_Procedures and Enforcement



Sec. 1050.301  Reports.

    (a) Within 60 days of accepting a gift of more than minimal value, 
other than gifts of travel or travel expenses, which are covered in 
paragraph (b) of this section, an employee shall, in addition to 
depositing a tangible gift (e.g. wearing apparel, liquor, etc.) with the 
Directorate of Administration in accordance with Sec. 1050.202 of this 
part, file with the Directorate of Administration a statement concerning 
the gift containing the information identified on the sample form set 
forth in appendix I. The form set forth in appendix I must also be filed 
if the aggregate value of gifts accepted by the recipient from all 
sources over any period of one year exceeds $250.
    (b) Within 30 days after accepting travel or travel expenses in 
accordance with Sec. 1050.202 of this part, an employee shall file with 
the Directorate of Administration a statement concerning the travel 
containing the information identified on the sample form set forth in 
appendix II. Such a statement need not be filed, however, if the travel 
is in accordance with specific travel arrangements made by the 
Department in cooperation with the foreign government.
    (c) The Directorate of Administration shall:
    (1) Maintain the statements filed pursuant to these regulations and 
make them available for public inspection and copying during regular 
business hours; and
    (2) Not later than January 31 of each year compile and transmit to 
the Department of State for publication by the Department of State in 
the Federal Register a list of all statements filed pursuant to these 
regulations during the preceding calendar year.



Sec. 1050.302  Use or disposal of gifts and decorations accepted on behalf of the United States.

    (a) The Directorate of Administration shall accept and maintain 
custody of all tangible gifts and decorations accepted by employees on 
behalf of the United States pending their final disposition.
    (b) Whenever possible, the gift or decoration shall be returned to 
the original donor. The Directorate of Administration shall examine the 
circumstances surrounding its donation, and, in consultation with the 
Assistant Secretary for International Affairs, assess whether any 
adverse effect upon the United States foreign relations might result 
from return of the gift or decoration to the donor. The appropriate 
officials of the Department of State shall be consulted if the question 
of an adverse effect arises.
    (c) The Directorate of Administration may determine that the gift or 
decoration may be retained for the official use of the Department, if it 
can be properly displayed in an area at Headquarters or at a field 
facility accessible to employees or members of the public or if it is 
otherwise usable in carrying out the mission of the Department. The 
Assistant Secretary for International Affairs shall be consulted to 
determine whether failure to accept the gift or decoration for the 
official use of the Department will have an adverse effect on the 
foreign relations of the United States. In no case shall a gift or 
decoration be accepted for the official use of the Department when the 
enjoyment and beneficial use of the

[[Page 1004]]

gift will accrue primarily to the benefit of the donee or any other 
individual employee. Gifts or decorations that are retained for the 
official use of the Department shall be handled in accordance with the 
provisions of paragraph (d) of this section when their official use is 
ended.
    (d) If a gift or decoration is not retained for official use of the 
Department, or if its official use has ended, the Directorate of 
Administration shall, within 30 days after its deposit or after its 
official use has ended--
    (1) Report the gift or decoration to the General Services 
Administration (GSA) for transfer, donation, or other disposal in 
accordance with the provisions of the Federal Property and 
Administrative Services Act of 1949 and the Federal Property Management 
Regulations at 41 CFR part 101-49, or
    (2) If the gift or decoration is in cash, currency, or monies 
(except those with possible historic or numismatic value), or is a 
noncash monetary gift such as a check, money order, bonds, shares of 
stock, or other negotiable instrument, forward it to the Finance and 
Accounting Office for deposit with the Department of the Treasury.
    (e) The Directorate of Administration shall retain custody of gifts 
and decorations not returned to the donor or retained for the official 
use of the Department until GSA directs it concerning their disposition. 
At the request of GSA, the Directorate of Administration shall arrange 
for appraisal of specific gifts and decorations.



Sec. 1050.303  Enforcement.

    (a) An employee who violates the provisions of the Act or these 
regulations may be subject to disciplinary action or civil penalty 
action as set forth in paragraphs (c) and (d) of this section.
    (b) Suspected violations of the Act or these regulations shall be 
reported promptly to the appropriate General Counsel and the Inspector 
General.
    (c) The Inspector General will be responsible for taking the 
following actions:
    (1) If the results of an investigation by the Inspector General do 
not provide any support for a determination that a violation of the Act 
or these regulations has occurred, then no further action shall be 
taken.
    (2) If it is determined that the employee knowingly and through 
actions within his own control has done any of the following, the matter 
shall be referred to the Attorney General for appropriate action:
    (i) Solicited or accepted a gift from a foreign government in a 
manner inconsistent with the provisions of the Act and these 
regulations;
    (ii) As the approved recipient of travel expenses failed to follow 
the procedures set forth in the Act and these regulations; or
    (iii) Failed to deposit or report a gift as required by the Act and 
these regulations.
    (3) If it is determined that the employee failed to deposit a 
tangible gift with the Directorate of Administration within 60 days, or 
to account properly for acceptance of travel expenses, or to comply with 
the requirements of these regulations relating to the disposal of gifts 
and decorations retained for official use, but that the criteria of 
knowledge and control specified in paragraph (c)(2) of this section for 
referral to the Attorney General have not been met, then the matter 
shall be referred by the Inspector General to appropriate Departmental 
officials for administrative action.
    (d) As set forth in section 7342(h) of title 5, United States Code, 
the Attorney General may bring a civil action in any district court of 
the United States against any employee who knowingly solicits or accepts 
a gift from a foreign government not consented to by the Act, or who 
fails to deposit or report such gift as required by the Act. The court 
in which such action is brought may assess a civil penalty against such 
employee in any amount not to exceed the retail value of the gift 
improperly solicited or received plus $8,000.

[45 FR 53972, Aug. 13, 1980, as amended at 62 FR 46184, Sept. 2, 1997; 
74 FR 66034, Dec. 14, 2009]

[[Page 1005]]



                 Subpart D_Gifts to Foreign Individuals



Sec. 1050.401  Prohibition against use of appropriated funds.

    No appropriated funds other than funds from the ``Emergencies in the 
Diplomatic and Consular Service'' account of the Department of State may 
be used to purchase any tangible gift of more than minimal value for any 
foreign individual unless such gift has been approved by the Congress.

[59 FR 44896, Aug. 31, 1994]

[[Page 1006]]



 Sec. Appendix I to Part 1050--DOE Form 3735.2--Foreign Gifts Statement

[GRAPHIC] [TIFF OMITTED] TC01OC91.040


[[Page 1007]]



      Statement Concerning Gifts Received From a Foreign Government

Item 1. This statement is to be filed pursuant to the provisions of the 
          Foreign Gifts and Decorations Act (5 U.S.C. 7342, as amended 
          by Pub. L. 95-105, August 17, 1977) and DOE implementing 
          regulations at 10 CFR part 1050. These provisions apply to 
          foreign gifts tendered to or accepted by Federal employees and 
          their spouses and dependents. The name of the employee should 
          always be indicated in item 1; if the employee is the 
          recipient of the gift then items 5 and 6 should be marked N/A-
          not applicable; if the recipient is a spouse or dependent, 
          then the appropriate information should be included in items 5 
          and 6.

Item 2. Self explanatory.

Items 3 and 4. The Office or Division and the position of the employee 
          should be indicated here regardless of whether the recipient 
          is the employee or a spouse or dependent.

Items 5 and 6. See above, Item 1.

Item 7. Self explanatory.

Item 8. Self explanatory.

Item 9. Indicate the retail value in the United States at the time of 
          acceptance. If there is any uncertainty as to the value of the 
          gift, it is the recipient's responsibility to make a 
          reasonable effort to determine value. If the value is $100 or 
          under, and if the aggregate value of the gifts accepted by the 
          recipient from all sources over any period of one year does 
          not exceed $250, then the gift may be retained by the 
          recipient and this Statement need not be submitted.

Item 10. Identify in this item whether or not approval to accept the 
          gift was sought or given in advance in accordance with Sec. 
          1050.204 of the DOE regulations. Also identify those 
          circumstances supporting a determination that refusal of the 
          gift would likely cause offense or embarrassment or otherwise 
          adversely affect the foriegn relations of the United States.

Items 11 and 12. Self explanatory.

Item 13. Though there is no assurance that the item will be sold or if 
          it is sold that it will be feasible for the recipient to 
          participate in the sale, GSA regulations provide for 
          participation by the recipient where feasible.

[[Page 1008]]



Sec. Appendix II to Part 1050--DOE Form 3735.3--Foreign Travel Statement

[GRAPHIC] [TIFF OMITTED] TC01OC91.041


[[Page 1009]]



  Statement Concerning Acceptance of Travel or Travel Expenses From a 
                           Foreign Government

Item 1. This statement is to be filed pursuant to the provisions of the 
          Foreign Gifts and Decorations Act (5 U.S.C. 7342, as amended 
          by Pub. L. 95-105, August 17, 1977) and DOE implementing 
          regulations at 10 CFR part 1050. These provisions apply to 
          travel or travel expenses for travel entirely outside of the 
          United States \1\ tendered to or accepted by Federal employees 
          and their spouses and dependents. The name of the employee 
          should always be indicated in item 1; if the employee is the 
          recipient of the travel or travel expenses, then items 5 and 6 
          should be marked N/A-not applicable; if the recipient is a 
          spouse or dependent, then the appropriate information should 
          be included in items 5 and 6.

Item 2. Self explanatory.

Items 3 and 4. The Office or Division of the employee should be 
          indicated here regardless of whether the recipient is the 
          employee or a spouse or dependent.

Items 5 and 6. See above, Item 1.

Item 7a. Indicate the location and mode of transportation and 
          approximate value in U.S. dollars, if possible. Attach 
          itinerary if available.

Item 7b. Indicate nature and location of travel expenses provided and 
          approximate value in U.S. dollars, if possible. Attach 
          itinerary if available.

Item 8. Indicate dates of travel.

Item 9. Self explanatory.

Item 10. Travel and travel expenses may be accepted in accordance with 
          DOE regulations where the travel is official agency business. 
          Spouses and dependents may accept such travel and expenses 
          only when accompanying the employee. Item 10 therefore should 
          be completed to identify the employee's official business 
          whether the recipient is an employee or a spouse or dependent.

Item 11. Identify in this item any treaty or diplomatic custom that 
          related to acceptance of the travel or expenses, and any 
          circumstances indicating that acceptance would be consistent 
          with the interests of the U.S. Also provide information 
          regarding any prior approval of the acceptance.

Items 12, 13a, and 13b. Self explanatory.

    \1\ The Congress has consented in Pub. L. 95-105 only to acceptance 
of travel or travel expenses that is entirely outside of the United 
States. Travel, any portion of which (such as the origination or 
termination of a flight) is within the United States, may not be paid 
for by a foreign government. All such travel must be handled within 
applicable DOE Travel Regulations and Standards of Conduct Regulations.



PART 1060_PAYMENT OF TRAVEL EXPENSES OF PERSONS WHO ARE NOT GOVERNMENT EMPLOYEES--Table of Contents



Sec.
1060.101 Persons who may be paid.
1060.201 Relatives, contractors, and assistance award recipients.
1060.301 Government employees.
1060.401 Applicability of internal DOE rules.
1060.501 Definitions.

    Authority: Sec. 644, Pub. L. 95-91, 91 Stat. 599 (42 U.S.C. 7254).

    Source: 46 FR 35631, July 10, 1981, unless otherwise noted.



Sec. 1060.101  Persons who may be paid.

    (a) Payment may not be authorized or approved for transportation, 
lodging, subsistence, or other travel expenses from DOE funds to, or on 
behalf of, a person who is not a Government employee unless such payment 
is made--
    (1) Pursuant to an invitation received by that person from the 
Department to confer with a DOE employee on matters essential to the 
advancement of DOE programs or objectives and (i) in the case of a 
person invited to confer at the post of duty of the conferring DOE 
employee, a designated official has approved and stated the reasons for 
the invitation in writing, or (ii) in the case of a person invited to 
confer at a place other than the post duty of the conferring DOE 
employee, a principal departmental official has approved and stated the 
reasons for the invitation in writing;
    (2) Pursuant to an invitation for an interview to a prospective 
employee of the Department who is an applicant for

[[Page 1010]]

(i) a position in the Department classified at GS-16 or above of the 
General Schedule or the rate of basic pay for which is fixed, other than 
under the General Schedule, at a rate equal to or greater than the 
minimum rate of basic pay fixed for GS-16, (ii) a position for which a 
determination has been made that there is a manpower shortage pursuant 
to 5 U.S.C. 5723, or (iii) a DOE position for which the Department has 
the exclusive duties of recruitment and selection;
    (3) In accordance with 28 U.S.C. 1821 or other applicable law, to a 
person who is subpoenaed by the Department to appear and testify or to 
appear and to produce documents at a designated place;
    (4) To a person who serves as a travel attendant for a handicapped 
individual who is authorized to travel at DOE expense and who cannot 
travel alone because of the handicap; or
    (5) Pursuant to a written determination of a principal departmental 
officer that it is in the interest of the Government to provide such 
payment, where the Counselor has determined in writing that the payment 
is authorized under 5 U.S.C. ch. 57 or other statutory authority.
    (b) The authority of a designated official or a principal 
departmental officer, as the case may be, to provide approval of an 
invitation to travel under paragraph (a)(1) and of a principal 
departmental officer to determine that payment of travel expenses is in 
the interest of the Government under paragraph (a)(5) of this section 
may not be delegated.
    (c) Within 30 days of providing written approval of an invitation 
under paragraph (a)(1)(i) of this section, a designated official who is 
an Administrator of a power administration or the head of a Field 
Organization shall transmit a copy of the written approval to the 
principal departmental officer to whom the official or the official's 
organization reports.
    (d) Payment of travel expenses may not be made pursuant to an 
invitation to travel under paragraphs (a)(1) or (a)(5) unless the 
written approval and statement of reasons required by paragraph (a)(1), 
or the written determinations required by paragraph (a)(5) of this 
section, are made before the travel to be authorized by the invitation 
takes place.
    (e) Nothing in this section shall be interpreted to prohibit payment 
for travel expenses that are reimbursable or allowable by the Department 
under the terms of a DOE contract or assistance award.



Sec. 1060.201  Relatives, contractors, and assistance award recipients.

    Notwithstanding any other provision in this part, a DOE employee may 
not authorize or approve, require another person to authorize or 
approve, or advocate the authorization or approval of, payment from DOE 
funds of travel expenses of a person who is not a Government employee 
and who is (a) the DOE employee's relative (except in the case of 
payment under Sec. 1060.101(a)(4)), or (b) in the case of payment under 
Sec. 1060.101(a)(1), a DOE contractor or a DOE assistance award 
recipient or the employee of a DOE contractor or a DOE assistance award 
recipient unless the travel expenses are incurred with respect to 
matters outside the scope of the contract or assistance award, as the 
case may be. (See also Sec. 1060.101(e).)



Sec. 1060.301  Government employees.

    Nothing in this part shall be interpreted as being applicable to 
authorization or approval of payment of travel expenses of Government 
employees, including DOE employees.



Sec. 1060.401  Applicability of internal DOE rules.

    Payment of travel expenses under Sec. 1060.101(a) (1) through (5) 
shall be subject to other Department rules relating to authorization of 
travel.



Sec. 1060.501  Definitions.

    For purposes of this part--
    (a) Counselor means the General Counsel of the Department or the 
General Counsel of the Federal Energy Regulatory Commission or their 
delegates, as appropriate.
    (b) Designated official means (1) a principal departmental officer, 
(2) an individual who is appointed to a position in the Department by 
the President of the United States with the advice and consent of the 
Senate, (3) the

[[Page 1011]]

Administrator of a power administration, or (4) the head of a Field 
Organization.
    (c) DOE or Department means the Department of Energy established by 
the Department of Energy Organization Act, section 201, Pub. L. 95-91 
(42 U.S.C. 7131).
    (d) Employee means--
    (1) An employee as defined by 5 U.S.C. 2105;
    (2) A special Government employee as defined in 18 U.S.C. 202(a);
    (3) A member of a Uniformed Service.
    (e) Handicapped individual means a person who has a physical or 
mental disability or health impairment, and includes an individual who 
is temporarily incapacitated because of illness or injury.
    (f) Principal departmental officer means the Secretary, Deputy 
Secretary, or Under Secretary, or, in the case of the Federal Energy 
Regulatory Commission, the Chairman or Executive Director of the 
Commission.
    (g) Relative means, with respect to a DOE employee, an individual 
who is related to the employee, by blood, marriage, or operation of law, 
as father, mother, son, daughter, brother, sister, uncle, aunt, great 
aunt, great uncle, first cousin, nephew, niece, husband, wife, 
grandchild, grandparent, father-in-law, mother-in-law, son-in-law, 
daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, 
stepson, stepdaughter, stepbrother, stepsister, half brother, or half 
sister, and shall also include the grandparent of an employee's spouse, 
an employee's fiance or fiancee, or any person residing in the 
employee's household.

[[Page 1013]]



           CHAPTER XIII--NUCLEAR WASTE TECHNICAL REVIEW BOARD




  --------------------------------------------------------------------
Part                                                                Page
1303            Public information and requests.............        1015
1304            Privacy Act of 1974.........................        1024

[[Page 1015]]



PART 1303_PUBLIC INFORMATION AND REQUESTS--Table of Contents



Sec.
1303.101 Scope.
1303.102 Definitions.
1303.103 Public reading area.
1303.104 Board records exempt from public disclosure.
1303.105 Requests for Board records.
1303.106 Responsibility, form, and content of responses.
1303.107 Timing of responses to requests.
1303.108 Fees.
1303.109 Restriction on charging fees.
1303.110 Notice of anticipated fees.
1303.111 Requirements for waiver or reduction of fees.
1303.112 Denials.
1303.113 Business information.
1303.114 Apeals.
1303.115 Preservation of records.
1303.116 Other rights and services.

    Authority: 5 U.S.C. 301, 5 U.S.C. 552 as amended, Executive Order 
12600 (3 CFR 1988 Comp., p. 235)

    Source: 70 FR 47080, Aug. 12, 2005, unless otherwise noted.



Sec. 1303.101  Scope

    This part sets forth the policies and procedures of the U.S. Nuclear 
Waste Technical Review Board (Board) regarding public access to 
documents under the Freedom of Information Act (FOIA), 5 U.S.C. 552. The 
provisions in the Act shall take precedence over any part of the Board's 
regulations in conflict with the Act. This part gives the procedures the 
public may use to inspect and obtain copies of Board records under the 
FOIA, including administrative procedures which must be exhausted before 
a request invokes the jurisdiction of an appropriate United States 
District Court for the Board's failure to respond to a proper request 
within the statutory time limits, for a denial of Board records or 
challenges to the adequacy of a search, or for denial of fee waiver.



Sec. 1303.102  Definitions.

    For words used in this part, unless the context varies otherwise, 
singular includes the plural, plural includes the singular, present 
tense includes the future tense, and words of one gender include the 
other gender.
    (a)(1) Agency records--include materials that are in the control of 
the Board and associated with Board business, as follows:
    (i) Materials produced by the Board.
    (ii) Materials produced a consultant for the Board.
    (iii) Materials distributed by presenters at a Board meeting.
    (2) All references to records, include both the entire record, or 
any part of the record.
    (b) Board--The U.S. Nuclear Waste Technical Review Board.
    (c) Chairman--The Chairman of the Board as designated by the 
President.
    (d) Designated FOIA Officer--The person named by the Board to 
administer the Board's activities in regard do the regulations in this 
part. The FOIA Officer also shall be:
    (1) The Board officer having custody of, or responsibility for, 
agency records in the possession of the Board.
    (2) The Board officer having responsibility for authorizing or 
denying production of records from requests filed under the Freedom of 
Information Act.
    (e) Executive Director--The chief operating officer of the Board.
    (f) Member--An individual appointed to serve on the Board by the 
President of the United States.
    (g) Days--Standard working days, excluding weekends and federal 
holidays.



Sec. 1303.103  Public reading area.

    (a) A public reading area is available at the Board office located 
at 2300 Clarendon Blvd., Suite 1300, Arlington, Virginia 22201. To use 
the reading area, contact the Director of Administration by:
    (1) Letter to the address in this paragraph (a):
    (2) Telephone: 703-235-4473;
    (3) A request to the Board's Web site at http://www.nwtrb.gov; or
    (4) Fax: 703-532-4495.
    (b) Documents also may be requested through the Board's Web site or 
by letter or fax. Please ensure that the records sought are clearly 
described. Materials produced by the Board are in the public domain 
unless otherwise noted.
    (c) Many Board records are available electronically at the Board's 
Web site (http://www.nwtrb.gov).
    (d) Records of the Board available for inspection and copying 
include:

[[Page 1016]]

    (1) The rules and regulations of the Board.
    (2) Statements of policy adopted by the Board.
    (3) Board reports to the U.S. Congress and the U.S. Secretary of 
Energy.
    (4) Board correspondence with Congress and the Department of Energy 
(DOE).
    (5) Transcripts of Board meetings.
    (6) Biographical information about current Board members.
    (7) Copies of records released in response to FOIA requests.
    (e) The cost of copying information available in the Board office 
shall be imposed in accordance with the provisions of Sec. 1303.108.



Sec. 1303.104  Board records exempt from public disclosure.

    5 U.S.C. 552 provides that the requirements of the FOIA do not apply 
to matters that are:
    (a) Specifically authorized under the criteria established by an 
executive order to be kept secret in the interest of national defense or 
foreign policy and in fact are properly classified pursuant to such an 
executive order.
    (b) Related solely to the internal personnel rules and practices of 
the Board.
    (c) Specifically exempted from disclosure by another federal 
statute, provided that such statute:
    (1) Requires that records be withheld from the public in such a 
manner that leaves no discretion on the issue; or
    (2) Establishes criteria for withholding or refers to particular 
types of matters to be withheld.
    (d) Trade secrets, and commercial or financial information obtained 
from a person and privileged or confidential.
    (e) Interagency or intra-agency memoranda or letters that would not 
be available by law to a party other than an agency in litigation with 
the Board.
    (f) Personnel, medical, or similar files that disclosing would 
constitute a clearly unwarranted invasion of personal privacy.
    (g) Records or information compiled for law enforcement purposes. 
Buy only to the extent that the production of such law enforcement 
records or information:
    (1) Could reasonably be expected to interfere with enforcement 
proceedings:
    (2) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (3) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (4) Could reasonably be expected to disclose the identity of any 
confidential source, including a State, local, or foreign agency or 
authority, or any private institution which furnished information on a 
confidential basis, and in the case of a record or information compiled 
by a criminal law enforcement agency in the course of a criminal 
investigation or by an agency conducting a lawful security intelligence 
investigation, information furnished by a confidential source;
    (5) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (6) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (h) Contained in or related to examination, operating, or condition 
reports, prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions.
    (i) Geological and geophysical information and data, including maps, 
concerning wells.



Sec. 1303.105  Requests for Board records.

    (a) A written FOIA request must be submitted. You may:
    (1) Write: NWTRB Designated FOIA Officer, 2300 Clarendon Boulevard, 
Suite 1300, Arlington, VA 22201;
    (2) Send an e-mail request to [email protected] and specify that this 
is a FOIA request in the subject line; or
    (3) Fax: 703-235-4495.
    (b) When making a request for records about a person, Privacy Act 
regulations also may apply. Please check the regulations for additional 
requirements before submitting a request. When making a request for

[[Page 1017]]

records about someone other than yourself, you must include either:
    (1) Written authorization signed by the person permitting you to see 
the records; or
    (2) Proof that the individual is deceased (e.g., a death certificate 
or an obituary).
    (c) A request will be considered received for purposes of Sec. 
1303.107 on the date that it is received by the Board's FOIA office. For 
prompt handling, write ``Freedom of Information Act Request'' on the 
letter and envelope or in the subject line of the Web request or fax.
    (d) Each request must clearly describe the desired records in 
sufficient detail to enable Board personnel to locate them with 
reasonable effort. Response to requests may be delayed if the records 
are not clearly described.
    (e) Whenever possible, requests should include specific information 
about each record sought, such as date, title or name, author, 
recipient, and subject.
    (f) If the FOIA Officer determines that the request does not clearly 
describe the records sought, he or she will either advise you of the 
additional needed to locate the record or otherwise state why the 
request is insufficient. The requestor will then be given the 
opportunity to provide additional information or to modify their 
request.
    (g) Submitting a FOIA request shall be considered a commitment by 
the requestor to pay all applicable fees required under Sec. 1303.108 
unless the requestor seeks a waiver of fees. When making a request, you 
may specify a willingness to pay fees up to a specific amount.
    (h) The FOIA does not require the Board to:
    (1) Compile or create records solely for the purpose of satisfying a 
request for records.
    (2) Provide records not yet in existence, even if such records may 
be expected to come into existence at some time in the future.
    (3) Restore records destroyed or otherwise disposed of, except that 
the FOIA Officer must notify the requestor that the records have been 
destroyed or otherwise disposed of.



Sec. 1303.106  Responsibility, form, and content of responses.

    The Board's Executive Director of his/her designated FOIA Officer is 
authorized to grant or deny any request for a record and determine 
appropriate fees. When determining which records are responsive to a 
request, the Board will include only records in its possession as of the 
date of the search.
    (a) If no records are responsive to the request, the FOIA Officer 
will notify the requestor in writing.
    (b) When a FOIA Officer denies a request in whole or in part he/she 
will notify the requestor in writing. The response will be signed by the 
FOIA Officer and will include:
    (1) The name and title or position of the person making the denial;
    (2) A brief statement of the reasons for the denial, including the 
FOIA exemption(s) that the FOIA Officer has relied on the denying the 
request; and
    (3) A statement that the denial may be appealed under Sec. 1303.114 
and a description of the requirements of that section.
    (c) Consultations and referrals. When a request for a record not 
produced by the Board is received, the Board shall refer the requestor 
to the issuing agency in writing. The Board may hold records that 
contain or refer to non-public information obtained from other federal 
agencies (co-mingled records). If those co-mingled records are 
requested, the Board shall determine whether the portion of those 
records produced by the Board can be released. Before any portion of a 
co-mingled record is released, the Board shall redact the non-public 
information obtained from other federal agencies. The Board shall inform 
the requestor of the reason for the redaction and shall refer the 
requestor to the issuing agency in writing.
    (d) Notice of referral. When the Board refers all or part of a 
request to another agency, it shall give the requestor the address of 
the agency contact and the section(s) referred.

[[Page 1018]]

    (e) Timing of responses to requests sent to other agencies. The 
Board shall provide, within the FOIA deadline, responses only to those 
parts of the request not referred. Requests will be referred to other 
agencies and the requestor notified as soon as it is determined that a 
referral is appropriate.
    (f) Agreements on consultations and referrals. The Board may make 
agreements with other agencies to eliminate the need for consultations 
or referrals for particular types of records.



Sec. 1303.107  Timing of responses to requests.

    (a) General. The Board shall normally respond to requests in the 
order of their receipt.
    (b) Acknowledgement of requests. On receipt of a request, the Board 
shall send an acknowledgment letter or an e-mail confirming the 
requestor's agreement to pay fees under Sec. 1303.108 and providing a 
request number for further reference.
    (c) Granting requests. The Board shall have 20 business days from 
when a request is received to determine whether to grant or deny it. 
Once the Board determines whether it can grant a request entirely or in 
part, it shall notify the requestor in writing. The Board shall advise 
the requestor of any fees to be charged under Sec. 1303.108 and shall 
disclose records promptly on payment of the fees. Records disclosed in 
part shall be marked or annotated to show the amount of information 
deleted unless doing so would harm an interest protected by an 
applicable exemption. The location of the information deleted also shall 
be indicated on the record when technically feasible.
    (d) Unusual circumstances:
    (1) If the statutory time limits for processing a request cannot be 
met because of ``usual circumstances'' as defined in the FOIA, the Board 
shall promptly notify the requestor in writing, explaining the 
circumstances and giving the date by which the request can be completed 
or if the Board cannot complete the request. If the extension is for 
more than 10 working days, the Board shall provide the requestor with an 
opportunity either to:
    (i) Modify the request so that it can be processed within the time 
limits; or
    (ii) Arrange an alternative time period for processing the original 
request.
    (2) If the Board believes that multiple requests submitted by a 
requestor or by requestors acting in concert constitute a single request 
that would otherwise involve unusual circumstances, and if the requests 
involve clearly related matters, they may be aggregated. Multiple 
requests involving unrelated matters will not be aggregated.
    (e) Expedited processing:
    (1) Requests and appeals shall be taken out of order and given 
expedited processing whenever it is determined that they involve:
    (i) Circumstances that could reasonably be expected to pose an 
imminent threat to the life or physical safety of an individual; or
    (ii) An urgency to inform the public about an actual or alleged 
activity if made by a person primarily engaged in disseminating 
information.
    (2) Requests for expedited processing may be made either at the time 
of the initial request or at a later time.
    (3) Requests for expedited processing must include a statement 
explaining in detail the basis for requesting expedited processing. For 
example, a requestor under Sec. 1303.108 must demonstrate that their 
professional activity involves news reporting or otherwise disseminating 
information to the public, although this need not be their sole 
occupation. A requestor also must establish a particular urgency to 
inform the public about government activity involved in the request, 
beyond the public's right to know about government activity generally.
    (4) Within 10 calendar days of receipt of a request for expedited 
processing, the Board shall decide whether to grant the request and 
notify the requestor of its decision. If a request for expedited 
treatment is granted, the request shall be processed as soon as 
practicable. If a request for expedited processing is denied, an appeal 
of that decision shall be acted on expeditiously.



Sec. 1303.108  Fees.

    (a) General. The Board shall charge for processing requests the FOIA 
in accordance with paragraph (c) of this section, except where fees are 
limited

[[Page 1019]]

under Sec. 1303.109 or where a waiver or reduction of fees is granted 
under Sec. 1303.111. Fees must be paid before the copies of records are 
sent. Fees may be paid by check or money order payable to the Treasury 
of the United States.
    (b) Definitions for this section:
    (1) Commercial use request--A request from, or on behalf of, a 
person who seeks information for a purpose that furthers their 
commercial, trade, or profit interests including furthering those 
interests through litigation. The Board shall try to determine the use 
to which a record will be put. When the Board believes that a request is 
for commercial use either because of the nature of the request or 
because the Board has cause to doubt the stated use, the Board shall ask 
the requestor for clarification.
    (2) Direct costs--Expenses that the Board incurs in searching for, 
duplicating, and, for some requests, reviewing records in response to a 
FOIA. Direct costs include the full salary of the employee performing 
the work and the cost of duplication of the records. Overhead expenses, 
such as the costs of space, heating, and lighting, are not included.
    (3) Duplication--Making a copy of a record or the information in the 
record, to respond to a FOIA. Copies can be in paper, microform, 
electronic, or other format. The Board shall honor a requestor's 
preference for format if the record is readily reproducible in that 
format at a reasonable cost.
    (4) Educational institution--A public or private school, an 
undergraduate, graduate, professional or vocational school, that has a 
program of scholarly research. For a request to be in this category, a 
requestor must show that the request is authorized by and made under the 
auspices of the qualifying institution and that the records will be used 
for scholarly research.
    (5) Noncommercial scientific institution--An institution that is not 
operated on a commercial basis, as defined in paragraph (b)(1) of this 
section and is operated solely for conducting scientific research that 
does not promote any particular product or industry. For a request to be 
in this category, the requestor must show that the request is authorized 
by and made under the auspices of the qualifying institution and that 
the records will be used to further scientific research.
    (6) Representative of the news media--Any person actively reporting 
for an entity that provides news to the public. The term ``news'' means 
information about current events or of current interest to the public. 
Examples include: Television and radio stations broadcasting to the 
public; and publishers of periodicals who make their news products 
available to the general public. For freelance journalists to be 
regarded as working for a news organization, they must demonstrate a 
sold basis for expecting publication through that organization. The 
Board may use a publication contract or past publication records to make 
their determination. The requestor must not be seeking records for a 
commercial use; however, a request solely supporting the news-
dissemination function is not considered a commercial use.
    (7) Review--Examining a record to determine whether any part of its 
is exempt from disclosure, and processing a record for disclosure. 
Review costs are recoverable even if a record is to disclosed. Review 
time includes time spent considering any formal objection to disclosure 
made by a business submitter under paragraph (c)(3) of this section but 
does not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (8) Search--The process of looking for and retrieving records, 
including page-by-page or line-by-line identification of information 
within records and reasonable efforts to locate and retrieve information 
from records maintained in electronic form. The Board shall ensure that 
searches are done in the most efficient and least expensive way that is 
reasonably possible.
    (c) Fees. In responding to FOIA requests, the Board shall charge the 
following fees unless a waiver or a reduction of fees has been granted 
under Sec. 1303.111:
    (1) Search (i) Search fees shall be charged for all requests subject 
to the limitations of Sec. 1303.109. The Board may charge for time 
spent searching even if no responsive record is located, or if

[[Page 1020]]

the record(s) located are withheld as exempt from disclosure.
    (ii) For each quarter hour spent by clerical personnel in searching 
for and retrieving a requested record, the fee will be $5. If a search 
and retrieval requires the use of professional personnel the fee will be 
$8 for each quarter hour. If the time of managerial personnel is 
required, the fee will be $10 for each quarter hour.
    (iii) For computer searches of records, requestors will be charged 
the direct costs of conducting the search, although certain requestors 
(see Sec. 1303.109(a)) will be charged no search fee and certain other 
requestors (see Sec. 1303.109(b)) will be entitled to two hours of 
manual search time without charge. Direct costs include the cost of 
operating a computer for the search time for requested records and the 
operator salary for the search.
    (2) Duplication. Duplication fees for paper copies of a record will 
be 10 cents per page for black and white and 20 cents per page for 
color. For all other forms of duplication, the Board shall charge the 
direct costs of producing the copy. All charges are subject to the 
limitations of Sec. 1303.109 and Sec. 1303.111.
    (3) Review. When a commercial use request is made, review fees shall 
be charged as stated in paragraph (c)(1) of this section. These fees 
apply only to the initial record review, when the Board determines 
whether an exemption applies to a particular record. Charges shall not 
be imposed for review at the administrative appeal level if an exemption 
is applied. However, records withheld under an exemption that is 
subsequently determined not to apply may be reviewed again to determine 
whether any other exemption not previously considered applies. The cost 
of that review shall be charged. All review fees shall be charged at the 
same rates as those charged in paragraph (c)(1) of this section.



Sec. 1303.109  Restrictions on charging fees.

    (a) When determining search or review fees:
    (1) No search or review fee shall be charged for requests by 
educational institutions, noncommercial scientific institutions, and 
representatives of the news media.
    (2) The Board shall provide without charge, to all but commercial 
users.
    (i) The first 100 pages of black and white duplication (or the cost 
equivalent); and
    (ii) The first two hours of search by a clerical staff member (or 
the cost equivalent).
    (3) When the total fee for a request will be $14.00 or less for any 
request, no fee shall be charged.
    (b) The Provisions of paragraphs (a)(2) and (a)(3) of this section 
work together. All requestors seeking records for a non-commercial use 
shall not be charged unless the total cost for the request exceeds by 
more than $14.00, the cost of a two hour clerical search, plus the cost 
of duplication over the 100 page exemption.



Sec. 1303.110  Notice of anticipated fees.

    (a) General. The Board shall advise the requetor in writing of any 
applicable fees. If only a part of the fee can be estimated readily, the 
Board shall advise the requestor that this may be only a part of the 
total fee. After the requestor has been sent a fee estimate, the request 
shall not be considered received until the requestor makes a firm 
commitment to pay the anticipated total fee. Any such agreement must be 
made by the requestor in writing and must be received within 60 days of 
the Board's notice. If the requestor does not provide a firm commitment 
to pay the anticipated fee within 60 days of the notice, the request 
shall be closed. The requestor may be given an opportunity to work with 
the Board to change the requests and lower the cost.
    (b) Charges for other services. When the Board chooses as a matter 
of administrative discretion to provide a special service, such as 
certifying that records are true copies or sending them by other than 
ordinary mail, the Board shall pay the costs of providing the service 
unless previous arrangements have been made with the requestor.
    (c) Charging interest. The Board may charge interest on any unpaid 
bill starting on the 31st day following the date of billing. Interest 
charges shall be assessed at the rate provided in 31 U.S.C. 3717 and 
shall accrue from the

[[Page 1021]]

date of the billing until payment is received by the Board. The Board 
shall follow the provisions of the Debt Collection Act of 1982 (Pub. L. 
97-365, 96 Stat. 1749), as amended.
    (d) Aggregating requests. If the Board reasonably believes that a 
requestor or a group of requestors acting together is trying to divide a 
request into a series of smaller requests for the purpose of avoiding 
fees, the Board may aggregate the requests and charge accordingly. The 
Board shall assume that multiple requests of the same type made within a 
30-day period have been made in order to avoid fees. If requests are 
separated by a longer period, the Board shall aggregate them only if 
there is a solid basis for determining that aggregation is warranted. 
Multiple requests involving unrelated matters shall not be aggregated.
    (e) Advance payments. Where a requestor has previously failed to pay 
promptly a properly charged FOIA fee to the Board or another agency, the 
Board shall require proof that full payment has been made to that agency 
before it begins to process that requestor's FOIA. The Board shall also 
require advance payment of the full amount of the anticipated fee. When 
advance payment is required, the request is not considered received 
until payment has been made.



Sec. 1303.111  Requirements for waiver or reduction of fees.

    (a) Records shall be furnished without charge or at a reduced charge 
if the Board determined that:
    (1) Disclosure is in the public interest and the information is 
likely to contribute significantly to public understanding of the 
activities of the government; and
    (2) Disclosure is not primarily in the commercial interest of the 
requestor.
    (b) In determining whether the first requirement is met, the Board 
shall consider:
    (1) Subject: Do the requested records concern identifiable 
activities of the federal government?
    (2) Informative value: Will the disclosure contribute to an 
understanding of government activities? Do records contain information 
on activities ``likely to contribute'' to an increased public 
understanding? If the information or similar information is already in 
the public domain, the record(s) would not increase the public's 
understanding.
    (3) Would the disclosure contribute to the understanding of a 
reasonably broad audience, as opposed to the individual understanding of 
the requestor? A requestor's expertise in the subject and intention to 
convey information to the public shall be considered. Being a valid 
representative of the news media shall satisfy this consideration.
    (4) Is the disclosure likely to contribute significantly to public 
understanding of government activities? The level of understanding after 
the disclosure versus that before the disclosure must be enhanced to a 
significant extent. However, the Board shall not make value judgments 
about whether information contributing to public understanding of 
government activities is important enough to release.
    (c) In determining whether the second requirement is met, the Board 
shall consider:
    (1) The existence and extent of the commercial interest: Would a 
commercial interest be substantially furthered by the disclosure? The 
Board shall consider the commercial interest (see paragraph (a)(2) of 
this section) of either the requestor or of any person on whose behalf 
they may be acting that would be furthered by the disclosure. During the 
administrative process, requestors shall be given an opportunity to 
provide additional information about this concern.
    (2) The primary interest for disclosure: Whether the commercial 
interest of the requestor is sufficiently large in comparison to the 
public interest, that disclosure is ``primarily in the commercial 
interest of the requestor.'' A fee waiver is justified if the public 
interest standard under paragraph (b) of this section is satisfied and 
if that public interest is greater than any commercial interest. The 
Board shall presume that when news media requestors satisfy this 
standard, primarily the public interest is served.
    (d) If only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted only for 
those records.

[[Page 1022]]

    (e) Requests for a waiver or a reduction of fees must address the 
factors listed in paragraphs (a) and (b) of this section only as they 
apply to each request. The Board also shall consider their 
administrative resources when responding to requests and may negotiate 
with the requestor to find the best way to optimize their resources in 
responding to the request when deciding whether to grant waivers or 
reductions of fees.



Sec. 1303.112  Denials.

    (a) When denying a request in any respect, the Board shall notify 
the requestor of that determination in writing. The types of denials 
include:
    (1) Denials of requests, consisting of a determination:
    (i) To withhold any requested record in whole or in part;
    (ii) That a requested record does not exist or cannot be located;
    (iii) That a record is not readily reproducible in the form or 
format sought;
    (iv) That what has been requested is not a record subject to the 
FOIA; and
    (v) That the material requested is not a Board record (e.g., 
material produced by another agency or organization).
    (2) A determination on any disputed fee matter, including a denial 
of a request for a fee waiver.
    (3) A denial of a request for expedited processing.
    (b) The denial letter shall be signed by the Director of 
Administration, the Deputy Director, or their designee, and shall 
include all of the following:
    (1) The name and title of the person responsible for the denial.
    (2) A brief statement of the reason(s) for the denial, including any 
FOIA exemptions applied in denying the request.
    (3) An estimate of the volume of records withheld, in number of 
pages or in some other reasonable form of estimation. This estimate does 
not need to be provided if it would harm an interest protected by an 
applicable exemption.
    (4) A statement that the denial may be appealed under Sec. 1303.114 
and a description of the requirements of Sec. 1303.114.



Sec. 1303.113  Business information.

    (a) In general. Business information obtained by the Board from a 
submitter shall be disclosed under the FOIA only under this section.
    (b) Definitions. For purposes of this section:
    (1) Business information--commercial or financial records obtained 
by the Board that may be protected from disclosure under Exemption 4 of 
the Freedom of Information Act (FOIA).
    (2) Submitter--any person or entity from which the Board obtains 
business records, either directly or indirectly. The term includes, but 
is not limited to, corporations, and state, local, tribal, and foreign 
governments.
    (c) Designation of business information. Submitters of business 
information shall designate any part of the record considered to be 
protected from disclosure under Exemption 4 of the FOIA by appropriately 
marking the material. This may be done either at the time the record is 
submitted or at a reasonable time thereafter. This designation lasts for 
10 years after submittal unless the submitter requests and provides 
justification for a longer period.
    (d) Notice to submitters. The Board shall provide a business 
submitter with prompt written notice of any FOIA request or appeal that 
seeks its business information under paragraph (e) of this section, 
except as provided in paragraph (h) of this section, to give the 
submitter an opportunity to object to that disclosure under paragraph 
(f) of this section. The notice shall either describe the records 
requested or include copies of the records.
    (e) Required notice. Notice shall be given to a submitter when:
    (1) The submitter has designated that the information is considered 
protected from disclosure under Exemption 4 of the FOIA; or
    (2) The Board has reason to believe that the information may be 
protected from disclosure under Exemption 4 of the FOIA.
    (f)(1) Objecting to disclosure. A submitter shall have 30 days to 
respond to the notice described in paragraph (d) of this section. If a 
submitter has an objection to disclosure, they are required to submit a 
detailed written statement including:

[[Page 1023]]

    (i) All grounds for withholding any of the information under any 
exemption of the FOIA, and
    (ii) In the case of Exemption 4, the reason why the information is a 
trade secret, commercial, or financial information that is privileged or 
confidential.
    (2) If a submitter fails to respond to the notice in paragraph (d) 
of the section within 30 days, the Board shall assume that the submitter 
has no objection to disclosure. The Board shall not consider information 
not received by the Board until after a disclosure decision has been 
made. Information provided by a submitter under this paragraph might 
itself be subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. The Board shall consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose the business records. Whenever the Board 
decides to disclose business records over the objection of a submitter, 
it shall give the submitter written notice, that will include:
    (1) A statement of the reason(s) the submitter's objections were not 
sustained;
    (2) A description of the business records to be disclosed; and
    (3) A specified disclosure date at a reasonable time subsequent to 
the notice.
    (h) Exceptions to notice requirements. The notice requirements in 
paragraphs (d) and (g) of this section shall not apply if:
    (1) The Board determines that the information should not be 
disclosed;
    (2) The information has been published legally or has been 
officially made available to the public;
    (3) Disclosure of the information is required by another statute or 
by a regulation issued in accordance with Executive Order 12600 (3 CFR, 
1988 Comp., p. 235); or
    (4) The objection made by the submitter under paragraph (f) of this 
section appears frivolous. In such a case, the Board shall promptly 
notify the submitter of its decision using the guidelines in paragraph 
(g) of this section.
    (i) Notice of FOIA lawsuit. When a requestor files a lawsuit seeking 
to compel the disclosure of business information, the Board shall 
promptly notify the submitter.
    (j) Corresponding notice to requestors. When the Board provides a 
submitter with either notice and an opportunity to object to disclosure 
under paragraph (d) of this section or with its intent to disclose 
requested information under paragraph (g) of this section, the Board 
also shall notify the requestor(s). When a submitter files a lawsuit 
seeking to prevent the disclosure of business information, the Board 
shall notify the requestor(s).



Sec. 1303.114  Appeals.

    (a)(1) Appeals of adverse determinations. If you are dissatisfied 
with the Board's response to your request, you may appeal to the Board's 
Executive Director:
    (i) By mail to: U.S. Nuclear Waste Technical Review Board, 2300 
Clarendon Boulevard, Suite 1300, Arlington, VA 22201;
    (ii) By e-mail to: [email protected] specifying that this is a FOIA 
request in the subject line; or
    (iii) By fax to: 703-235-4495.
    (2) The appeal must be in writing and must be received within 30 
days of the date of the Board's response. The appeal letter, e-mail, or 
fax may include as much or as little related information as you wish, as 
long is it clearly identifies the Board determination that you are 
appealing, including the assigned request number, if known. For prompt 
handling, please mark your appeal ``Freedom of Information Act Appeal.''
    (b) Responses to appeals. Requestors shall be notified in writing of 
the decision on the appeal. A decision affirming an adverse 
determination shall include a statement of the reason(s) for the 
affirmation, including any FOIA exemption(s) applied, and shall include 
the FOIA provisions for court review of the decision. If the adverse 
determination is reversed or modified on appeal, the request shall be 
reprocessed in accordance with that appeal decision.
    (c) When appeal is required. If a review by a court or any adverse 
determination is desired, the determination must first be appealed under 
this section.

[[Page 1024]]

    (d) Denial of appeal. An adverse determination by the Executive 
Director shall be the final action of the Board.
    (e) Unacceptable appeals. An appeal will not be acted on if the 
request becomes a matter of FOIA litigation.



Sec. 1303.115  Preservation of records.

    The Board shall preserve all correspondence pertaining to the 
requests that it receives under this part, as well as copies of all 
requested records, until disposition or destruction is authorized by 
title 44 of the United States Code or the National Archives and Records 
Administration's General Records Schedule 14. Records will not be 
disposed of while they are the subject of a pending request, appeal, or 
lawsuit.



Sec. 1303.116  Other rights and services.

    Nothing in this part shall be construed to entitle any person, as a 
right, to any service or to the disclosure of any record to which such 
person is not entitled under the FOIA.



PART 1304_PRIVACY ACT OF 1974--Table of Contents



Sec.
1304.101 Purpose and scope.
1304.102 Definitions.
1304.103 Privacy Act inquiries.
1304.104 Privacy Act records maintained by the Board.
1304.105 Requests for access to records.
1304.106 Processing of requests.
1304.107 Fees.
1304.108 Appealing denials of access.
1304.109 Requests for correction of records.
1304.110 Disclosure of records to third parties.
1304.111 Maintaining records of disclosures.
1304.112 Notification of systems of Privacy Act records.
1304.113 Privacy Act training.
1304.114 Responsibility for maintaining adequate safeguards.
1304.115 Systems of records covered by exemptions.
1304.116 Mailing lists.

    Authority: 5 U.S.C. 552a(f).

    Source: 72 FR 8879, Feb. 28, 2007, unless otherwise noted.



Sec. 1304.101  Purpose and scope.

    This part sets forth the policies and procedures of the U.S. Nuclear 
Waste Technical Review Board (Board) regarding access to systems of 
records maintained by the Board under the Privacy Act of 1974, Public 
Law 93-579, 5 U.S.C. 552a. The provisions in the Act shall take 
precedence over any part of the Board's regulations in conflict with the 
Act. These regulations establish procedures by which an individual may 
exercise the rights granted by the Privacy Act to determine whether a 
Board system contains a record pertaining to him or her; to gain access 
to such records; and to request correction or amendment of such records. 
These regulations also set identification requirements and prescribe 
fees to be charged for copying records.



Sec. 1304.102  Definitions.

    The terms used in these regulations are defined in the Privacy Act 
of 1974, 5 U.S.C. 552a. In addition, as used in this part:
    (a) Agency means any executive department, military department, 
government corporation, or other establishment in this executive branch 
of the Federal Government, including the Executive Office of the 
President or any independent regulatory agency;
    (b) Individual means any citizen of the United States or an alien 
lawfully admitted for permanent residence;
    (c) Maintain means to collect, use, store, or disseminate records as 
well as any combination of these recordkeeping functions. The term also 
includes exercise of control over, and therefore responsibility and 
accountability for, systems of records;
    (d) Record means any item, collection, or grouping of information 
about an individual that is maintained by the Board and contains the 
individual's name or other identifying information, such as a number or 
symbol assigned to the individual or his or her fingerprint, voice 
print, or photograph. The term includes, but is not limited to, 
information regarding an individual's education, financial transactions, 
medical history, and criminal or employment history;
    (e) System of records means a group of records under the control of 
the Board from which information is retrievable by use of the name of 
the individual or by some number, symbol, or other identifying 
particular assigned to the individual;

[[Page 1025]]

    (f) Routine use means, with respect to the disclosure of a record, 
the use of a record for a purpose that is compatible with the purpose 
for which it was collected;
    (g) Designated Privacy Act Officer means the person named by the 
board to administer the Board's activities in regard to the regulations 
in this part. The Privacy Act Officer also shall be the following:
    (1) The Board officer having custody of, or responsibility for, 
agency records in the possession of the Board.
    (2) The Board officer having responsibility for authorizing or 
denying production of records from requests filed under the Privacy Act.
    (h) Executive Director means the chief operating officer of the 
Board;
    (i) Member means an individual appointed to serve on the Board by 
the President of the United States;
    (j) Days means standard working days, excluding weekends and federal 
holidays; and
    (k) Act refers to the Privacy Act of 1974.



Sec. 1304.103  Privacy Act inquiries.

    (a) Requests regarding the contents of record systems. Any person 
wanting to know whether the Board's systems of records contains a record 
pertaining to him or her may file a request in person or in writing, via 
the internet, or by telephone.
    (b) Requests in persons may be submitted at the Board's headquarters 
located at 2300 Clarendon Blvd., Suite 1300; Arlington, VA. Requests 
should be marked ``Privacy Act Request'' on each page of the request and 
on the front of the envelope and directed to the Privacy Act Officer.
    (c) Requests in writing may be sent to: Privacy Act Officer, U.S. 
Nuclear Waste Technical Review Board, 2300 Clarendon Blvd., Suite 1300, 
Arlington, VA 22201. ``Privacy Act Request'' should be written on the 
envelope and each page of the request.
    (d) Requests via the internet may be made on the Board's Web site at 
www.nwtrb.gov, using the ``Contact NWTRB'' icon on the bottom of the 
Home page. The words ``Privacy Act'' should appear on the subject line.
    (e) Telephone requests may be made by calling the Board's Privacy 
Act Officer at 703-235-4473.



Sec. 1304.104  Privacy Act records maintained by the Board.

    (a) The Board shall maintain only such information about an 
individual as is relevant and necessary to accomplish a purpose of the 
agency required by statute or by Executive Order of the President. In 
addition, the Board shall maintain all records that are used in making 
determinations about any individual with such accuracy, relevance, 
timeliness, and completeness as is reasonably necessary to ensure 
fairness to that individual in the making of any determination about him 
or her. However, the Board shall not be required to update retired 
records.
    (b) The Board shall not maintain any record about any individual 
with respect to or describing how such individual exercises rights 
guaranteed by the First Amendment of the Constitution of the United 
States, unless expressly authorized by statute or by the subject 
individual, or unless pertinent to and within the scope of an authorized 
law enforcement activity.



Sec. 1304.105  Requests for access to records.

    (a) All requests for records should include the following 
information:
    (1) Full name, address, and telephone number of requester.
    (2) The system of records containing the desired information.
    (3) Any other information that the requester believes would help 
locate the record.
    (b) Requests in writing. A person may request access to his or her 
own records in writing by addressing a letter to: Privacy Act Officer; 
U.S. Nuclear Waste Technical Review Board; 2300 Clarendon Blvd., Suite 
1300; Arlington, VA 22201.
    (c) Requests via the internet. Internet requests should be 
transmitted through the Board's Web site at www.nwtrb.gov, using the 
``Contact NWTRB'' icon on the bottom of the main page. The words 
``Privacy Act'' should appear on the subject line.
    (d) Requests in person. Any person may examine and request copies of 
his

[[Page 1026]]

or her own records on the Board's premises. The requester should contact 
the Board's offices at least one week before the desired appointment 
date. This request may be made to the Privacy Act Officer in writing, 
via the Internet, or by calling 703-235-4473.
    (e) Before viewing the records, proof of identification, must be 
provided. The identification should be a valid copy of one of the 
following:
    A government ID,
    A driver's license,
    A passport, or
    Other current identification that contains both an address and a 
picture of the requester.



Sec. 1304.106  Processing of requests.

    Upon receipt of a request for information, the Privacy Act Officer 
will ascertain:
    Whether the records identified by the requester exist, and
    Whether they are subject to any exemption under Sec. 1304.115. If 
the records exist and are not subject to exemption, the Privacy Officer 
will provide the information.
    (a) Requests in writing, including those sent by e-mail, via the Web 
site, or by Fax. Within five working days of receiving the requests the 
Privacy Act Officer will acknowledge its receipt and will advise the 
requester of any additional information that may be needed. Within 15 
working days of receiving the request, the Privacy Act Officer will send 
the requested information or will explain to the requester why 
additional time is needed for a response.
    (b) Requests in person or by telephone. Within 15 days of the 
initial request, the Privacy Act Officer will contact the requestor and 
arrange an appointment at a mutually agreeable time when the records can 
be examined. The requester may be accompanied by one person. The 
requestor should inform the Privacy Act Officer that a second individual 
will be present and must sign a statement authorizing disclosure of the 
records to that person. The statement will be kept with the requester's 
records. At the appointment, the requester will be asked to present 
identification as stated in Sec. 1304.105.
    (c) Excluded information. If a request is received for information 
compiled in reasonable anticipation of litigation, the Privacy Officer 
will inform the requester that the information is not subject to release 
under the Privacy Act (see 5 U.S.C. 552a(d)(5)).



Sec. 1304.107  Fees.

    A fee will not be charged for searching, reviewing, or making 
corrections to records. A fee for copying will be assessed at the same 
rate established for Freedom of Information Act requests. Duplication 
fees for paper copies of a record will be 10 cents per page for black 
and white and 20 cents per page for color. For all other forms of 
duplication, the Board will charge the direct costs of producing the 
copy. However, the first 100 pages of black-and-white copying or its 
equivalent will be free of charge.



Sec. 1304.108  Appealing denials of access.

    If access to records is denied by the Privacy Act Officer, the 
requester may file an appeal in writing. The appeal should be directed 
to Executive Director; U.S. Technical Review Board; 2300 Clarendon 
Blvd., Suite 1300; Arlington, VA 22201. The appeal letter must:
    Specify the denied records that are still sought; and
    State why denial by the Privacy Act Officer is erroneous.
    The Executive Director or his or her designee will respond to such 
appeals within 20 working days of the receipt of the appeal letter in 
the Board offices. The appeal determination will explain the basis of 
the decision to deny or grant the appeal.



Sec. 1304.109  Requests for correction of records.

    (a) Correction requests. Any person is entitled to request 
correction of his or her record(s) covered under the Act. The request 
must be made in writing and should be addressed to Privacy Act Officer; 
U.S. Nuclear Waste Technical Review Board; 2300 Clarendon Blvd., Suite 
1300; Arlington, VA 22201. The letter should clearly identify the 
corrections desired. In most circumstances, an edited copy of the record 
will be acceptable for this purpose.
    (b) Initial response. Receipt of a correction request will be 
acknowledged

[[Page 1027]]

by the Privacy Act Officer in writing within 5 working days. The Privacy 
Act Officer will endeavor to provide a letter to the requester within 20 
working days stating whether the request for correction has been granted 
or denied. If the Privacy Act Officer denies any part of the correction 
request, the reasons for the denial will be provided to the requester.



Sec. 1304.110  Disclosure of records to third parties.

    (a) The Board will not disclose any record that is contained in a 
system of records to any person or agency, except with a written request 
by or with the prior written consent of the individual whose record is 
requested, unless disclosure of the record is:
    (1) Required by an employee or agent of the Board in the performance 
of his/her official duties.
    (2) Required under the provisions of the Freedom of Information Act 
(5 U.S.C. 552). Records required to be made available by the Freedom of 
Information Act will be released in response to a request in accordance 
with the Board's regulations published at 10 CFR part 1303.
    (3) For a routine use as published in the annual notice in the 
Federal Register.
    (4) To the Census Bureau for planning or carrying out a census, 
survey, or related activities pursuant to the provisions of Title 13 of 
the United States Code.
    (5) To a recipient who has provided the Board with adequate advance 
written assurance that the record will be used solely as a statistical 
research or reporting record and that the record is to be transferred in 
a form that is not individually identifiable.
    (6) To the National Archives and Records Administration as a record 
that has sufficient historical or other value to warrant its continued 
preservation by the United States government, or for evaluation by the 
Archivist of the United States, or his or her designee, to determine 
whether the record has such value.
    (7) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity, if the activity is 
authorized by law, and if the head of the agency or instrumentality has 
made a written request to the Board for such records specifying the 
particular part desired and the law enforcement activity for which the 
record is sought. The Board also may disclose such a record to a law 
enforcement agency on its own initiative in situations in which criminal 
conduct is suspected, provided that such disclosure has been established 
as a routine use, or in situations in which the misconduct is directly 
related to the purpose for which the record is maintained.
    (8) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if, upon such 
disclosure, notification is transmitted to the last known address of 
such individual.
    (9) To either House of Congress, or, to the extent of matters within 
its jurisdiction, any committee or subcommittee thereof, any joint 
committee of Congress, or subcommittee of any such joint committee.
    (10) To the Comptroller General, or any of his or her authorized 
representatives, in the course of the performance of official duties of 
the Government Accountability Office.
    (11) Pursuant to an order of a court of competent jurisdiction. In 
the event that any record is disclosed under such compulsory legal 
process, the Board shall make reasonable efforts to notify the subject 
individual after the process becomes a matter of public record.
    (12) To a consumer reporting agency in accordance with 31 U.S.C. 
3711(e).
    (b) Before disseminating any record about any individual to any 
person other than a Board employee, the Board shall make reasonable 
efforts to ensure that the records are, or at the time they were 
collected were, accurate, complete, timely, and relevant. This paragraph 
(b) does not apply to disseminations made pursuant to the provisions of 
the Freedom of Information Act ( 5 U.S.C. 552) and paragraph (a)(2) of 
this section.

[[Page 1028]]



Sec. 1304.111  Maintaining records of disclosures.

    (a) The Board shall maintain a log containing the date, nature, and 
purpose of each disclosure of a record to any person or agency. Such 
accounting also shall contain the name and address of the person or 
agency to whom or to which each disclosure was made. This log will not 
include disclosures made to Board employees or agents in the course of 
their official duties or pursuant to the provisions of the Freedom of 
Information Act (5 U.S.C. 552).
    (b) The Board shall retain the accounting of each disclosure for at 
least five years after the accounting is made or for the life of the 
record that was disclosed, whichever is longer.
    (c) The Board shall make the accounting of disclosures of a record 
pertaining to an individual available to that individual at his or her 
request. Such a request should be made in accordance with the procedures 
set forth in Sec. 1304.105. This paragraph (c) does not apply to 
disclosures made for law enforcement purposes under 5 U.S.C. 552a(b)(7) 
and Sec. 1304.110(a)(7).



Sec. 1304.112  Notification of systems of Privacy Act records.

    (a) Public notice. On November 22, 1996, the Board published a 
notice of its systems of records in the Federal Register (Vol. 61, 
Number 227, pages 59472-69473). It is updating and republishing the 
notice in this issue of the Federal Register. The Board periodically 
reviews its systems of records and will publish information about any 
significant additions or changes to those systems. Information about 
systems of records maintained by other agencies that are in the 
temporary custody of the Board will not be published. In addition, the 
Office of the Federal Register biennially compiles and publishes all 
systems of records maintained by all federal agencies, including the 
Board.
    (b) At least 30 days before publishing additions or changes to the 
Board's systems of records, the Board will publish a notice of intent to 
amend, providing the public with an opportunity to comment on the 
proposed amendments to its systems of records.



Sec. 1304.113  Privacy Act training.

    (a) The Board shall ensure that all persons involved in the design, 
development, operation, or maintenance of any Board systems are informed 
of all requirements necessary to protect the privacy of individuals. The 
Board shall ensure that all employees having access to records receive 
adequate training in their protection and that records have adequate and 
proper storage with sufficient security to ensure their privacy.
    (b) All employees shall be informed of the civil remedies provided 
under 5 U.S.C. 552a(g)(1) and other implications of the Privacy Act and 
of the fact that the Board may be subject to civil remedies for failure 
to comply with the provisions of the Privacy Act and the regulations in 
this part.



Sec. 1304.114  Responsibility for maintaining adequate safeguards.

    The Board has the responsibility for maintaining adequate technical, 
physical, and security safeguards to prevent unauthorized disclosure or 
destruction of manual and automatic record systems. These security 
safeguards shall apply to all systems in which identified personal data 
are processed or maintained, including all reports and output from such 
systems that contain identifiable personal information. Such safeguards 
must be sufficient to prevent negligent, accidental, or unintentional 
disclosure, modification, or destruction of any personal records or 
data; must minimize; to the extent practicable, the risk that skilled 
technicians or knowledgeable persons could improperly obtain access to 
modify or destroy such records or data; and shall further ensure against 
such casual entry by unskilled persons without official reasons for 
access to such records or data.
    (a) Manual systems. (1) Records contained in a system of records as 
defined in this part may be used, held, or stored only where facilities 
are adequate to prevent unauthorized access by persons within or outside 
the Board.
    (2) Access to and use of a system of records shall be permitted only 
to persons whose duties require such access to the information for 
routine uses or for such other uses as may be provided in this part.

[[Page 1029]]

    (3) Other than for access by employees or agents of the Board, 
access to records within a system of records shall be permitted only to 
the individual to whom the record pertains or upon his or her written 
request.
    (4) The Board shall ensure that all persons whose duties require 
access to and use of records contained in a system of records are 
adequately trained to protect the security and privacy of such records.
    (5) The disposal and destruction of identifiable personal data 
records shall be done by shredding and in accordance with rules 
promulgated by the Archivist of the United States.
    (b) Automated systems. (1) Identifiable personal information may be 
processed, stored, or maintained by automated data systems only where 
facilities or conditions are adequate to prevent unauthorized access to 
such systems in any form.
    (2) Access to and use of identifiable personal data associated with 
automated data systems shall be limited to those persons whose duties 
require such access. Proper control of personal data in any form 
associated with automated data systems shall be maintained at all times, 
including maintenance of accountability records showing disposition of 
input and output documents.
    (3) All persons whose duties require access to processing and 
maintenance of identifiable personal data and automated systems shall be 
adequately trained in the security and privacy of personal data.
    (4) The disposal and disposition of identifiable personal data and 
automated systems shall be done by shredding, burning, or, in the case 
of electronic records, by degaussing or by overwriting with the 
appropriate security software, in accordance with regulations of the 
Archivist of the United States or other appropriate authority.



Sec. 1304.115  Systems of records covered by exemptions.

    The Board currently has no exempt systems of records.



Sec. 1304.116  Mailing lists.

    The Board shall not sell or rent an individual's name and/or address 
unless such action is specifically authorized by law. This section shall 
not be construed to require the withholding of names and addresses 
otherwise permitted to be made public.

[[Page 1031]]



          CHAPTER XVII--DEFENSE NUCLEAR FACILITIES SAFETY BOARD




  --------------------------------------------------------------------
Part                                                                Page
1703            Public information and requests.............        1033
1704            Rules implementing the Government in the 
                    Sunshine Act............................        1041
1705            Privacy Act.................................        1045
1706            Organizational and consultant conflicts of 
                    interests...............................        1048
1707            Testimony by DNFSB employees and production 
                    of official records in legal proceedings        1056

[[Page 1033]]



PART 1703_PUBLIC INFORMATION AND REQUESTS--Table of Contents



Sec.
1703.101 Scope.
1703.102 Definitions; words denoting number, gender and tense.
1703.103 Requests for board records available through the public reading 
          room.
1703.104 Board records exempt from public disclosure.
1703.105 Requests for board records not available through the public 
          reading room (FOIA requests).
1703.106 Requests for waiver or reduction of fees.
1703.107 Fees for record requests.
1703.108 Processing of FOIA requests.
1703.109 Procedure for appeal of denial of requests for board records 
          and denial of requests for fee waiver or reduction.
1703.110 Requests for classified records.
1703.111 Requests for privileged treatment of documents submitted to the 
          board.
1703.112 Computation of time.

    Authority: 5 U.S.C. 552; Executive Order 12600, 3 CFR, 1987 Comp., 
p. 235; 42 U.S.C. 2286, 2286b(c).

    Source: 56 FR 21261, May 8, 1991, unless otherwise noted.



Sec. 1703.101  Scope.

    This part contains the Board's regulations implementing the Freedom 
of Information Act, 5 U.S.C. 552.



Sec. 1703.102  Definitions; words denoting number, gender and tense.

    Agency record is a record in the possession and control of the Board 
that is associated with Board business. Agency records do not include 
records such as:
    (1) Publicly available books, periodicals, or other publications 
that are owned or copyrighted by non-federal sources;
    (2) Records solely in the possession and control of Board 
contractors;
    (3) Personal records in the possession of Board personnel that have 
not been circulated, were not required by the Board to be created or 
retained, and may be retained or discarded at the author's sole 
discretion. In determining whether such records are agency records the 
Board shall consider whether, and to what extent, the records were used 
in agency business;
    (4) Records of a personal nature that are not associated with any 
Board business; or
    (5) Non-substantive information in the calendar or schedule books of 
the Chairman or Members, uncirculated except for typing or recording 
purposes.
    Board means the Defense Nuclear Facilities Safety Board.
    Chairman means the Chairman of the Board.
    Designated FOIA Officer means the person designated by the Board to 
administer the Board's activities pursuant to the regulations in this 
part. The Designated FOIA Officer shall also be the Board officer having 
custody of or responsibility for agency records in the possession of the 
Board and shall be the Board officer responsible for authorizing or 
denying production of records upon requests filed pursuant to Sec. 
1703.105.
    General Counsel means the chief legal officer of the Board.
    General Manager means the chief administrative officer of the Board.
    Member means a Member of the Board.
    In determining the meaning of any provision of this part, unless the 
context indicates otherwise: the singular includes the plural; the 
plural includes the singular; the present tense includes the future 
tense; and words of one gender include the other gender.



Sec. 1703.103  Requests for board records available through the public reading room.

    (a) A Public Reading Room will be maintained at the Board's 
headquarters and will be open between 8:30 a.m. and 4:30 p.m. Mondays 
through Fridays, with the exception of legal holidays. Documents may be 
obtained in person or by written or telephonic request from the Public 
Reading Room by reasonably describing the records sought. The purpose of 
the Public Reading Room is to provide easy accessibility to a 
substantial portion of the Board's records. The Board considers that 
documents available through the Public Reading Room have been placed in 
the public domain.
    (b) The public records of the Board that are available for 
inspection and copying upon request in the Public Reading Room include:
    (1) The Board's rules and regulations;

[[Page 1034]]

    (2) Statements of policy adopted by the Board.
    (3) Board recommendations; the Secretary of Energy's response, any 
final decision, and implementation plans regarding Board 
recommendations; and interested person's comments, data, views, or 
arguments to the Board concerning its recommendations and the Secretary 
of Energy's response and final decision;
    (4) Transcripts of public hearings and any Board correspondence 
related thereto;
    (5) Recordings or transcripts of Board meetings that were closed 
under 10 CFR part 1704, where the Board subsequently determines under 10 
CFR 1704.9 that the recordings or transcripts may be made publicly 
available;
    (6) Board orders, decisions, notices, and other actions in a public 
hearing;
    (7) Board correspondence, except that which is exempt from mandatory 
public disclosure under Sec. 1703.104;
    (8) Copies of the filings, certifications, pleadings, records, 
briefs, orders, judgments, decrees, and mandates in court proceedings to 
which the Board is a party and the correspondence with the courts or 
clerks of court;
    (9) Those of the Board's Administrative Directives that affect 
members of the public;
    (10) Index of the documents identified in this section, but not 
including drafts thereof; and
    (11) Annual reports to Congress in which the Board's operations 
during a past fiscal year are described.
    (12) Copies of records released pursuant to FOIA requests, along 
with an index to these records. The format will generally be the same as 
the format of the released records.

[56 FR 21261, May 8, 1991, as amended at 62 FR 66815, Dec. 22, 1997]



Sec. 1703.104  Board records exempt from public disclosure.

    The following records are exempt from public disclosure:
    (a)(1) Records specifically authorized under criteria established by 
an Executive Order to be kept secret in the interest of national defense 
or foreign policy, and
    (2) Which are in fact properly classified pursuant to such Executive 
Order;
    (b) Records related solely to the internal personnel rules and 
practices of an agency;
    (c) Records specifically exempted from disclosure by statute, 
provided that such statute:
    (1) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (2) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (d) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (e) Interagency or intraagency memoranda or letters which would not 
be available by law to a party other than an agency in litigation with 
the Board;
    (f) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (g) Records of information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (1) Could reasonably be expected to interfere with enforcement 
proceedings,
    (2) Would deprive a person of a right to a fair trial or an 
impartial adjudication,
    (3) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy,
    (4) Could reasonably be expected to disclose the identity of a 
confidential source, including a state, local, or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation, or by an agency conducting a lawful national security 
intelligence investigation, information furnished by a confidential 
source,
    (5) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such

[[Page 1035]]

disclosure could reasonably be expected to risk circumvention of the 
law, or
    (6) Could reasonably be expected to endanger the life or physical 
safety of any individual;



Sec. 1703.105  Requests for board records not available through the public reading room (FOIA requests).

    (a) Upon the request of any person, the Board shall make available 
for public inspection and copying any reasonably described agency record 
in the possession and control of the Board, but not available through 
the Public Reading Room, subject to the provisions of this part. If a 
member of the public files a request with the Board under the FOIA for 
records that the Board determines are available through the Public 
Reading Room, the Board will treat the request under the simplified 
procedures of Sec. 1703.103.
    (b)(1) A person may request access to Board records that are not 
available through the Public Reading Room by using the following 
procedures:
    (i) The request must be in writing and must describe the records 
requested to enable Board personnel to locate them with a reasonable 
amount of effort. Where possible, specific information regarding dates, 
titles, file designations, and other information which may help identify 
the records should be supplied by the requester, including the names and 
titles of any Board personnel who have been contacted regarding the 
request prior to the submission of the written request.
    (ii) A request for all records falling within a reasonably specific 
and well-defined category shall be regarded as conforming to the 
statutory requirement that records be reasonably described. The request 
must enable the Board to identify and locate the records by a process 
that is not unreasonably burdensome or disruptive of Board operations.
    (2) The request should be addressed to the Designated FOIA Officer 
and clearly marked ``Freedom of Information Act Request.'' The address 
for such requests is: Designated FOIA Officer, Defense Nuclear 
Facilities Safety Board, 625 Indiana Avenue, NW., suite 700, Washington, 
DC 20004. For purposes of calculating the time for response to the 
request under Sec. 1703.108, the request shall not be deemed to have 
been received until it is in the possession of the Designated FOIA 
Officer or his designee.
    (3) The request must include:
    (i) A statement by the requester of a willingness to pay the fee 
applicable under Sec. 1703.107(b), or to pay that fee not to exceed a 
specific amount, or
    (ii) A request for waiver or reduction of fees.
    (4) No request shall be deemed to have been received until the Board 
has:
    (i) Received a statement of willingness to pay, as indicated in 
Sec. 1703.105(b)(3)(i), or
    (ii) Received and approved a request for waiver or reduction of 
fees. However, the FOIA request shall be deemed to have been received if 
the request for waiver or reduction of fees includes a statement of 
willingness to pay the fee anticipated to be incurred in processing the 
request under this section, or to pay that fee not to exceed a specific 
amount, should the request for fee waiver or reduction be denied.
    (c) with respect to records in the files of the Board that have been 
obtained from other federal agencies:
    (1) Where the record originated in another federal agency, the 
Designated FOIA Officer shall refer the request to that agency and so 
inform the requester, unless the originating agency agrees to direct 
release by the Board.
    (2) Requests for Board records containing information received from 
another agency, or records prepared jointly by the Board and other 
agencies, shall be treated as requests for Board records. The Designated 
FOIA Officer shall, however, coordinate with the appropriate official of 
the other agency. The notice of determination to the requester, in the 
event part or all of the record is recommended for denial by the other 
agency, shall cite the other agency Denying Official as well as the 
Designated FOIA Officer if a denial by the Board is also involved.
    (d) If a request does not reasonably describe the records sought, as 
provided in paragraph (b) of this section, the Board response shall 
specify the reasons why the request failed to meet those requirements 
and shall offer the

[[Page 1036]]

requester the opportunity to confer with knowledgeable Board personnel 
in an attempt to restate the request. If additional information is 
needed from the requester to render records reasonably described, any 
restated request submitted by the requester shall be treated as an 
initial request for purposes of calculating the time for response under 
Sec. 1703.108.
    (e)(1) Expedited processing. A person may request expedited 
processing of an FOIA request when a compelling need for the requested 
records has been shown. ``Compelling need'' means:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, if the request is made by a person 
primarily engaged in disseminating information; or
    (iii) The records pertain to an immediate source of risk to the 
public health and safety or worker safety at a defense nuclear facility 
under the Board's jurisdiction.
    (2) A requester seeking expedited processing should so indicate in 
the initial request, and should state all facts supporting the need to 
obtain the requested records rapidly. The requester must also state that 
these facts are true and correct to the best of the requester's 
knowledge and belief.
    (3) When a request for expedited processing is received, the Board 
will respond within ten calendar days from the date of receipt of the 
request, stating whether or not the request has been granted. If the 
request for expedited processing is denied, any appeal of that decision 
will be acted upon expeditiously.

[56 FR 21261, May 8, 1991, as amended at 62 FR 66815, Dec. 22, 1997]



Sec. 1703.106  Requests for waiver or reduction of fees.

    (a) The Board shall collect fees for record requests made under 
Sec. 1703.105, as provided in Sec. 1703.107(b), unless a requester 
submits a request in writing for a waiver or reduction of fees. The 
Designated FOIA Officer shall make a determination on a fee waiver or 
reduction request within five working days of the request coming into 
his possession. No determination shall be made that a fee waiver or 
reduction request should be denied, until the Designated FOIA Officer 
has consulted with the General Counsel's Office. If the determination is 
made that the written request for a waiver or reduction of fees does not 
meet the requirements of this section, the Designated FOIA Officer shall 
inform the requester that the request for waiver or reduction of fees is 
being denied and set forth his appeal rights under Sec. 1703.109.
    (b) A person requesting the board to waive or reduce search, review, 
or duplication fees shall:
    (1) Describe the purpose for which the requester intends to use the 
requested information;
    (2) Explain the extent to which the requester will extract and 
analyze the substantive content of the agency record;
    (3) Describe the nature of the specific activity or research in 
which the agency records will be used and the specific qualifications 
the requester possesses to utilize information for the intended use in 
such a way that it will contribute to public understanding;
    (4) Describe the likely impact of disclosure of the requested 
records on the public's understanding of the subject as compared to the 
level of understanding of the subject existing prior to disclosure;
    (5) Describe the size and nature of the public to whose 
understanding a contribution will be made;
    (6) Describe the intended means of dissemination to the general 
public;
    (7) Indicate if public access to information will be provided free 
of charge or provided for an access or publication fee; and
    (8) Describe any commercial or private interest the requester or any 
other party has in the agency records sought.
    (c) The Board shall waive or reduce fees, without further specific 
information from the requester if, from information provided with the 
request for agency records made under Sec. 1703.105, it can determine 
that disclosure of the information in the agency records is in the 
public interest because it is likely

[[Page 1037]]

to contribute significantly to public understanding of the operations or 
activities of the Government and is not primarily in the commercial 
interest of the requester.
    (d) In making a determination regarding a request for a waiver or 
reduction of fees, the Board shall consider the following factors:
    (1) Whether the subject of the requested agency records concerns the 
operations or activities of the Government;
    (2) Whether disclosure of the information is likely to contribute 
significantly to public understanding of Government operations or 
activities;
    (3) Whether, and the extent to which, the requester has a commercial 
interest that would be furthered by the disclosure of the requested 
agency records; and
    (4) Whether the magnitude of the identified commercial interest of 
the requester is sufficiently large, in comparison with the public 
interest in disclosure, that disclosure is primarily in the commercial 
interest of the requester.



Sec. 1703.107  Fees for record requests.

    (a) Fees for records available through the Public Reading Room.
    (1) With the exception of copies of transcripts of Board public 
hearings addressed in paragraph (a)(2) of this section, the fees charged 
shall be limited to costs of duplication of the requested records. The 
Board shall either duplicate the requested records or have them 
duplicated by a commercial contractor. If the Board duplicates the 
records, it shall not charge the requester for the associated labor 
costs. A schedule of fees for this duplication service shall be 
prescribed in accordance with paragraph (b)(6) of this section. A person 
may obtain a copy of the schedule of fees in person or by mail from the 
Public Reading Room. There shall be no charge for responses consisting 
of ten or fewer pages.
    (2) Transcripts of Board public hearings are made by private 
contractors. Interested persons may obtain copies of public hearing 
transcripts from the contractor at prices set in the contract, or 
through the duplication service noted in paragraph (a) of this section, 
if the particular contract so permits. Copies of the contracts shall be 
available for public inspection in the Public Reading Room.
    (3) Requests for certification of copies of official Board records 
must be accompanied by a fee of $5.00 per document. Inquiries and orders 
may be made to the Public Reading Room in person or by mail.
    (b) Fees for records not available through the Public Reading Room 
(FOIA requests).
    (1) Definitions. For the purpose of paragraph (b) of this section:
    Commercial use request means a request from or on behalf of one who 
seeks information for a use or purpose that furthers commercial, trade, 
or profit interests as these phrases are commonly known or have been 
interpreted by the courts in the context of the FOIA;
    Direct costs means those expenditures which the Board incurs in 
search, review and duplication, as applicable to different categories of 
requesters, to respond to requests under Sec. 1703.105. Direct costs 
include, for example, the average hourly salary and projected benefits 
costs of Board employees applied to time spent in responding to the 
request and the cost of operating duplicating machinery. Not included in 
direct costs are overhead expenses such as cost of space, and heating or 
lighting the facility in which the Board records are stored.
    Educational institution refers to a preschool, a public or private 
elementary or secondary school, an institution of graduate higher 
education, an institution of undergraduate higher education, an 
institution of professional education, and an institution of vocational 
education, which operates a program of scholarly research;
    Noncommercial scientific institution refers to an institution that 
is not operated on a commercial basis and which is operated solely for 
the purpose of conducting scientific research the results of which are 
not intended to promote any particular product or industry;
    Representative of the news media refers to any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to

[[Page 1038]]

the public. The term news means information that is about current events 
or that would be of current interest to the public. Examples of news 
media entities include television or radio stations broadcasting to the 
public at large, and publishers of periodicals (but only in those 
instances when the periodicals can qualify as disseminations of 
``news'') who make their products available for purchase or subscription 
by the general public. These examples are not intended to be all-
inclusive. Moreover, as traditional methods of news delivery evolve 
(e.g., electronic dissemination of newspapers through telecommunications 
services), such alternative media may be included in this category. A 
``freelance'' journalist may be regarded as working for a news 
organization if the journalist can demonstrate a solid basis for 
expecting publication through that organization, even though the 
journalist is not actually employed by the news organization. A 
publication contract would be the clearest proof, but the Board may also 
look to the past publication record of a requester in making this 
determination.
    (2) Fees. (i) If documents are requested for commercial use, the 
Board shall charge the average hourly pay rate for Board employees, plus 
the average hourly projected benefits cost, for document search time and 
for document review time, and the costs of duplication as established in 
the schedule of fees referenced in paragraph (b)(6) of this section.
    (ii) If documents are not sought for commercial use and the request 
is made by an educational or noncommercial scientific institution, whose 
purpose is scholarly or scientific research, or a representative of the 
news media, the Board's charges shall be limited to the direct costs of 
duplication as established in the schedule of fees referenced in 
paragraph (b)(6) of this section. There shall be no charge for the first 
100 pages of duplication.
    (iii) For a request not described in paragraphs (b)(2) (i) or (ii) 
of this section the Board shall charge the average hourly pay rate for 
Board employees, plus the average hourly projected benefits cost, for 
document search time, and the direct costs of duplication as established 
in the schedule of fees referenced in paragraph (b)(6) of this section. 
There shall be no charge for document review time and the first 100 
pages of reproduction and the first two hours of search time will be 
furnished without charge.
    (iv) [Reserved]
    (v) The Board, or its designee, may establish minimum fees below 
which no charges will be collected, if it determines that the costs of 
routine collection and processing of the fees are likely to equal or 
exceed the amount of the fees. If total fees determined by the Board for 
a FOIA request would be less than the appropriate threshold, the Board 
shall not charge the requesters.
    (vi) Payment of fees must be by check or money order made payable to 
the U.S. Treasury.
    (vii) Requesters may not file multiple requests at the same time, 
each seeking portions of a document or documents, solely in order to 
avoid payment of fees. When the Board reasonably believes that a 
requester, or a group of requesters acting in concert, is attempting to 
break a request down into a series of requests for the purpose of 
evading assessment of fees, the Board may aggregate any such requests 
and charge the requester accordingly. The Board shall not, however, 
aggregate multiple requests on unrelated subjects from a requester.
    (viii) Whenever the Board estimates that duplication or search costs 
are likely to exceed $25, it shall notify the requester of the estimated 
costs, unless the requester has indicated in advance his willingness to 
pay fees as high as those anticipated. Such a notice shall offer the 
requester an opportunity to confer with the Board personnel with the 
object of reformulating the request to meet the requester's needs at a 
lower cost.
    (3) Fees for unsuccessful search. The Board may assess charges for 
time spent searching, even if it fails to locate the records, or if 
records located are determined to be exempt from disclosure.
    (4) Advance payments. (i) If the Board estimates or determines that 
allowable charges that a requester may be required to pay are likely to 
exceed $250, the Board shall notify such requester

[[Page 1039]]

of the estimated cost and either require satisfactory assurance of full 
payment where the requester has a history of prompt payment of fees, or 
require advance payment of the charges if a requester has no payment 
history.
    (ii) If a requester has previously failed to pay a fee charged in a 
timely fashion, the Board shall require the requester to pay the full 
amount owed plus any applicable interest, and to make an advance payment 
of the full amount of the estimated fee before the Board will begin to 
process a new request or a pending request from that requester.
    (iii) When the Board requires advance payment under this paragraph, 
the administrative time limits prescribed in Sec. 1703.108(b) will 
begin only after the Board has received the fee payments.
    (5) Debt collection. The Board itself may endeavor to collect unpaid 
FOIA fees, or may refer unpaid FOIA invoices to the General Services 
Administration, or other federal agency performing financial management 
services for the Board, for collection.
    (6) Annual adjustment of fees.--(i) Update and publication. The 
Board, by its designee, the General Manager, shall promulgate a schedule 
of fees and the average hourly pay rates and average hourly projected 
benefits cost and will update that schedule once every twelve months. 
The General Manager shall publish the schedule for public comment in the 
Federal Register.
    (ii) Payment of updated fees. The fee applicable to a particular 
FOIA request will be the fee in effect on the date that the request is 
received.

[56 FR 21261, May 8, 1991, as amended at 62 FR 66816, Dec. 22, 1997]



Sec. 1703.108  Processing of FOIA requests.

    (a) Where a request complies with Sec. 1703.105 as to specificity 
and statement of willingness to pay or request for fee waiver or 
reduction, the Designated FOIA Officer shall acknowledge receipt of the 
request and commence processing of the request. The Designated FOIA 
Officer shall prepare a written response:
    (1) Granting the request,
    (2) Denying the request,
    (3) Granting or denying it in part,
    (4) Stating that the request has been referred to another agency 
under Sec. 1703.105, or
    (5) Informing the requester that responsive records cannot be 
located or do not exist.
    (b) Action pursuant to this section to provide access to requested 
records shall be taken within twenty working days. This time period may 
be extended up to ten additional working days, in unusual circumstances, 
by written notice to the requester. If the Board will be unable to 
satisfy the request in this additional period of time, the requester 
will be so notified and given the opportunity to--
    (1) Limit the scope of the request so that it can be processed 
within the time limit, or
    (2) Arrange with the Designated FOIA Officer an alternative time 
frame for processing the original request or a modified request.
    (c) For purposes of this section and Sec. 1703.109, the term 
unusual circumstances may include but is not limited to the following:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
Board's Washington, DC offices:
    (2) The need to search for, collect and appropriately examine a 
voluminous amount of separate and distinct records which may be 
responsive to a single request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency pursuant to Sec. 1703.105(d).
    (d) If no determination has been made at the end of the ten day 
period, or the last extension thereof, the requester may deem his 
administrative remedies to have been exhausted, giving rise to a right 
of review in a district court of the United States as specified in 5 
U.S.C. 552(a)(4). When no determination can be made within the 
applicable time limit, the Board will nevertheless continue to process 
the request. If the Board is unable to provide a response within the 
statutory period, the Designated FOIA Officer shall inform the requester 
of the reason for the delay; the date on which a determination may be 
expected to be

[[Page 1040]]

made; and that the requester can seek remedy through the courts, but 
shall ask the requester to forgo such action until a determination is 
made.
    (e) Nothing in this part shall preclude the Designated FOIA Officer 
and a requester from agreeing to an extension of time for the initial 
determination on a request. Any such agreement shall be confirmed in 
writing and shall clearly specify the total time agreed upon.
    (f) The procedure for appeal of denial of a request for Board 
records is set forth in Sec. 1703.109.

[56 FR 21261, May 8, 1991, as amended at 62 FR 66816, Dec. 22, 1997]



Sec. 1703.109  Procedure for appeal of denial of requests for board records and denial of requests for fee waiver or reduction.

    (a)(1) A person whose request for access to records or request for 
fee waiver or reduction is denied in whole or in part may appeal that 
determination to the General Counsel within 30 days of the 
determination. Appeals filed pursuant to this section must be in 
writing, directed to the General Counsel at the address indicated in 
Sec. 1703.105(b)(2) and clearly marked ``Freedom of Information Act 
Appeal.'' Such an appeal received by the Board not addressed and marked 
as indicated in this paragraph will be so addressed and marked by Board 
personnel as soon as it is properly identified and then will be 
forwarded to the General Counsel. Appeals taken pursuant to this 
paragraph will be considered to be received upon actual receipt by the 
General Counsel.
    (2) The General Counsel shall make a determination with respect to 
any appeal within 20 working days after the receipt of such appeal. If, 
on appeal, the denial of the request for records or fee reduction is in 
whole or in part upheld, the General Counsel shall notify the person 
making such request of the provisions for judicial review of that 
determination.
    (b) In unusual circumstances, as defined in Sec. 1703.108(c), the 
time limits prescribed for deciding an appeal pursuant to this section 
may be extended by up to ten working days, by the General Counsel, who 
will send written notice to the requester setting forth the reasons for 
such extension and the expected determination date.



Sec. 1703.110  Requests for classified records.

    The Board may at any time be in possession of classified records and 
Unclassified Controlled Nuclear Information (UCNI) received from the 
Department of Energy or other federal agencies. The Board shall refer 
requests under Sec. 1703.105 for such records or information to the 
Department of Energy or other originating agency without making an 
independent determination as to the releasability of such documents. The 
Board shall refer requests for classified records in a manner consistent 
with Executive Order 12356, ``National Security Information,'' 3 CFR, 
1982 Comp., p. 166, or any superseding Executive Order. The Board shall 
refer requests for UCNI in a manner consistent with 42 U.S.C. 2168 and 
the Department of Energy's implementing regulations in 10 CFR part 1017 
or any successor regulations.



Sec. 1703.111  Requests for privileged treatment of documents submitted to the board.

    (a) Scope. Any person submitting a document to the Board may request 
privileged treatment by claiming that some or all of the information 
contained in the document is exempt from the mandatory public disclosure 
requirements of FOIA and should otherwise be withheld from public 
disclosure.
    (b) Procedures. A person claiming that information is privileged 
under paragraph (a) of this section must file:
    (1) An application, accompanied by an affidavit, requesting 
privileged treatment for some or all of the information in a document, 
and stating the justification for nondisclosure of the information and 
addressing the factors set forth in paragraph (e) of this section;
    (2) The original document, boldly indicating on the front page 
``Contains Privileged Information--Do Not Release'' and identifying 
within the document the information for which the privileged treatment 
is sought;
    (3) Three copies of the redacted document (i.e., without the 
information for

[[Page 1041]]

which privileged treatment is sought) and with a statement indicating 
that information has been removed for privileged treatment; and
    (4) The name, title, address, telephone number, and telecopy 
information of the person or persons to be contacted regarding the 
request for privileged treatment of documents submitted to the Board.
    (c) Effect of privilege claim. (1) The Designated FOIA Officer shall 
place documents for which privileged treatment is sought in accordance 
with paragraph (b) of this section in a nonpublic file, while the 
request for confidential treatment is pending. By placing documents in a 
nonpublic file, the Board is not making a determination on any claim for 
privilege. The Board retains the right to make determinations with 
regard to any claim of privilege, and the discretion to release 
information as necessary to carry out its responsibilities.
    (2) The Designated FOIA Officer shall place the request for 
privileged treatment described in paragraph (b)(1) of this section and a 
copy of the redacted document described in paragraph (b)(3) of this 
section in a public file while the request for privileged treatment is 
pending.
    (d) Notification of request and opportunity to comment. When a FOIA 
requester seeks a document for which privilege is claimed, the 
Designated FOIA Officer shall so notify the person who submitted the 
document and give that person an opportunity (at least five days) in 
which to comment in writing on the request. A copy of this notice shall 
be sent to the FOIA requester.
    (e) Factors to be considered by Board. In determining whether to 
grant the document privileged status and to deny the request for the 
document the Board shall consider:
    (1) Whether the information has been held in confidence by its 
owner;
    (2) Whether the information is of a type customarily held in 
confidence by its owner and whether there is a rational basis therefor;
    (3) Whether the information was transmitted to and received by the 
Board in confidence;
    (4) Whether the information is available in public sources; and
    (5) Whether public disclosure of the information sought to be 
withheld is likely to cause substantial harm to the competitive position 
of the owner of the information, taking into account the value of the 
information to the owner; the amount of effort or money, if any, 
expended by the owner in developing the information; and the ease or 
difficulty with which the information could be properly acquired or 
duplicated by others.
    (f) Notification before release. Notice of a decision by the 
Designated FOIA Officer to deny a claim of privilege, in whole or in 
part, shall be given to any person claiming that information is 
privileged no less than five days before public disclosure. The decision 
shall be made only after consultation with the General Counsel's Office. 
The notice shall briefly explain why the person's objections to 
disclosure were not sustained. A copy of this notice shall be sent to 
the FOIA requester.
    (g) Notification of suit in Federal courts. When a FOIA requester 
brings suit to compel disclosure of confidential commercial information, 
the Board shall notify the person who submitted documents containing 
such confidential commercial information of the suit.



Sec. 1703.112  Computation of time.

    In computing any period of time under this part, the day of the 
Board's action is not included. The last day of the period is included 
unless it is a Saturday, Sunday or legal holiday, in which case the 
period runs until the end of the next working day. Whenever a person has 
the right or is required to take some action within a prescribed period 
after notification by the Board and the notification is made by mail, 
five days shall be added to the prescribed period. Only two days shall 
be added when a notification is made by express mail.



PART 1704_RULES IMPLEMENTING THE GOVERNMENT IN THE SUNSHINE ACT--Table of Contents



Sec.
1704.1 Applicability.

[[Page 1042]]

1704.2 Definitions.
1704.3 Open meetings requirement.
1704.4 Grounds on which meetings may be closed or information may be 
          withheld.
1704.5 Procedures for closing meetings, or withholding information, and 
          requests by affected persons to close a meeting.
1704.6 Procedures for public announcement of meetings.
1704.7 Changes following public announcement.
1704.8 Transcripts, recordings, or minutes of closed meetings.
1704.9 Availability and retention of transcripts, recordings, and 
          minutes, and applicable fees.
1704.10 Severability.

    Authority: 5 U.S.C. 552b; 42 U.S.C. 2286, 2286b(c).

    Source: 56 FR 9609, Mar. 7, 1991, unless otherwise noted.



Sec. 1704.1  Applicability.

    (a) This part implements the provisions of the Government in the 
Sunshine Act (5 U.S.C. 552b). These procedures apply to meetings, as 
defined herein, of the Members of the Defense Nuclear Facilities Safety 
Board (Board). The Board may waive the provisions set forth in this part 
to the extent authorized by law.
    (b) Requests for all documents other than the transcripts, 
recordings, and minutes described in Sec. 1704.8 shall be governed by 
Board regulations pursuant to the Freedom of Information Act (5 U.S.C. 
552).



Sec. 1704.2  Definitions.

    As used in this part:
    (a) Chairman and Vice Chairman mean those Members designated by the 
President to serve in said positions, pursuant to 42 U.S.C. 2286(c).
    (b) Defense Nuclear Facilities Safety Board means the Board 
established under the National Defense Authorization Act, Fiscal Year 
1989.
    (c) General Counsel means the Board's principal legal officer, or an 
attorney serving as Acting General Counsel.
    (d) Meeting means the deliberations of three or more Members where 
such deliberations determine or result in the joint conduct or 
disposition of official Board business. A meeting does not include:
    (1) Notation voting or similar consideration of business for the 
purpose of recording of votes, whether by circulation of material to the 
Members individually in writing or by a polling of the Members 
individually by telephone.
    (2) Action by three or more Members to:
    (i) Open or to close a meeting or to release or to withhold 
information pursuant to Sec. 1704.5;
    (ii) Set an agenda for a proposed meeting(s);
    (iii) Call a meeting on less than seven days' notice as permitted by 
Sec. 1704.6(b); or
    (iv) Change the subject matter or the determination to open or to 
close a publicly announced meeting under Sec. 1704.7(b).
    (3) A session attended by three or more Members for which the 
purpose is to have the Board's staff or expert consultants to the Board 
brief or otherwise provide information to the Board concerning any 
matters within the purview of the Board under its authorizing statute, 
provided that the Board does not engage in deliberations that determine 
or result in the joint conduct or disposition of official Board business 
on such matters.
    (4) A session attended by three or more Members for which the 
purpose is to have the Department of Energy (including its contractors) 
or other persons or organizations brief or otherwise provide information 
to the Board concerning any matters within the purview of the Board 
under its authorizing statute, provided that the Board does not engage 
in deliberations that determine or result in the joint conduct or 
disposition of official Board business on such matters.
    (5) A gathering of Members for the purpose of holding informal 
preliminary discussions or exchange of views which do not efectively 
predetermine official action.
    (e) Member means an individual duly appointed and confirmed to the 
collegial body, known as ``the Board.''



Sec. 1704.3  Open meetings requirement.

    (a) Any meetings of the Board, as defined in Sec. 1704.2, shall be 
conducted in accordance with this part. Except as provided in Sec. 
1704.4, the Board's meetings, or portions thereof, shall be open to 
public observation.

[[Page 1043]]

    (b) The General Counsel or his designee will attend and monitor 
briefings described in Sec. 1704.2(d) (3)-(4) and informal preliminary 
discussions described in Sec. 1704.2(d)(5) to assure that those 
gatherings do not proceed to the point of becoming deliberations and 
``meetings'' within the meaning of the Sunshine Act.
    (c) The General Counsel or his designee will inform the Board 
Members if developing discussions at a briefing or gathering should be 
deferred until a notice of an open or closed meeting can be published in 
the Federal Register, and a meeting conducted pursuant to the Sunshine 
Act and these regulations.



Sec. 1704.4  Grounds on which meetings may be closed or information may be withheld.

    Except in a case where the Board finds that the public interest 
requires otherwise, a meeting may be closed and information pertinent to 
such meeting otherwise required by Sec. Sec. 1704.5, 1704.6, and 1704.7 
to be disclosed to the public may be withheld if the Board properly 
determines that such meeting or portion thereof or the disclosure of 
such information is likely to:
    (a) Disclose matters that are:
    (1) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interests of national defense 
or foreign policy; and
    (2) In fact properly classified pursuant to such Executive order. In 
making the determination that this exemption applies, the Board shall 
rely upon the classification assigned to a document by the Department of 
Energy or other originating agency;
    (b) Relate solely to the internal personnel rules and practices of 
the Board;
    (c) Disclose matters specifically exempted from disclosure by 
statute (other than 5 U.S.C. 552): Provided, That such statute:
    (1) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue; or
    (2) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;

This exemption applies to Board meetings, or portions of meetings, 
involving deliberations regarding recommendations which, under 42 U.S.C. 
2286d (a) and (g)(3), may not be made publicly available until after 
they have been received by the Secretary of Energy or the President, 
respectively;
    (d) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (e) Involve accusing any person of a crime, or formally censuring 
any person;
    (f) Disclose information of a personal nature where disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (g) Disclose investigatory records compiled for law enforcement 
purposes, or information which, if written, would be contained in such 
records, but only to the extent that the production of such records or 
information would;
    (1) Interfere with enforcement proceedings;
    (2) Deprive a person of a right to a fair trial or an impartial 
adjudication;
    (3) Constitute an unwarranted invasion of personal privacy;
    (4) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source;
    (5) Disclose investigative techniques and procedures; or
    (6) Endanger the life or physical safety of law enforcement 
personnel;
    (h) Disclose information the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed action of 
the Board, except that this subsection shall not apply in any instance 
where the Board has already disclosed to the public the content or 
nature of its proposed action, or where the Board is required by law to 
make such disclosure on its own initiative prior to taking final action 
on such proposal;
    (i) Specifically concern the Board's issuance of a subpoena, or the 
Board's participation in a civil action or proceeding, an action in a 
foreign court or

[[Page 1044]]

international tribunal, or an arbitration, or the initiation, conduct, 
or disposition by the Board of a particular case of formal agency 
adjudication pursuant to the procedures in 5 U.S.C. 554 or otherwise 
involving a determination on the record after opportunity for a hearing; 
or
    (j) Disclose other information for which the Government in the 
Sunshine Act provides an exemption to the open meeting requirements of 
that Act.



Sec. 1704.5  Procedures for closing meetings, or withholding information, and requests by affected persons to close a meeting.

    (a) A majority of all Members may vote to close a meeting or 
withhold information pertaining to that meeting. A separate vote shall 
be taken with respect to any action under Sec. 1704.4. A majority of 
the Board may act by taking a single vote with respect to a series of 
meetings, a portion or portions of which are proposed to be closed to 
the public, or with respect to any information concerning such series of 
meetings, so long as each meeting in such series involves the same 
particular subject matters and is scheduled to be held no more than 
thirty days after the initial meeting in such series. Each Member's vote 
under this paragraph shall be recorded and proxies are not permitted.
    (b) Any person whose interest may be directly affected if a portion 
of a meeting is open may request the Board to close that portion on any 
of the grounds referred to in Sec. 1704.4 (e), (f), or (g). Requests, 
with reasons in support thereof, should be submitted to the General 
Counsel, Defense Nuclear Facilities Safety Board, 625 Indiana Avenue, 
NW., suite 700, Washington, DC 20004. On motion of any Member, the Board 
shall determine by recorded vote whether to grant the request.
    (c) Within one working day of any vote taken pursuant to this 
section, the Board shall make available a written copy of such vote 
reflecting the vote of each Member on the question, and if a portion of 
a meeting is to be closed to the public a full written explanation of 
its action closing the meeting and a list of all persons expected to 
attend and their affiliation.
    (d) For every closed meeting, the General Counsel of the Board shall 
publicly certify that, in his or her opinion, the meeting may be closed 
to the public and shall state each relevant exemption provision. If the 
General Counsel invokes the exemption for classified or sensitive 
unclassified information under Sec. 1704.4(a), he shall rely upon the 
classification or designation assigned to the document containing such 
information by the Department of Energy or other originating agency. A 
copy of such certification, together with a statement setting forth the 
time and place of the meeting and the persons present, shall be retained 
by the Board as part of the transcript, recording, or minutes required 
by Sec. 1704.8.



Sec. 1704.6  Procedures for public announcement of meetings.

    (a) For each meeting, the Board shall make public announcement, at 
least one week before the meeting, of the:
    (1) Time of the meeting;
    (2) Place of the meeting;
    (3) Subject matter of the meeting;
    (4) Whether the meeting is to be open or closed; and
    (5) The name and business telephone number of the official 
designated by the Board to respond to requests for information about the 
meeting.
    (b) The one week advance notice required by paragraph (a) of this 
section may be reduced only if:
    (1) A majority of all Members determines by recorded vote that Board 
business requires that such meeting be scheduled in less than seven 
days; and
    (2) The public announcement required by paragraph (a) of this 
section is made at the earliest practicable time.
    (c) Immediately following each public announcement required by this 
section, or by Sec. 1704.7, the Board shall submit a notice of public 
announcement for publication in the Federal Register.



Sec. 1704.7  Changes following public announcement.

    (a) The time or place of a meeting may be changed following the 
public

[[Page 1045]]

announcement only if the Board publicly announces such change at the 
earliest practicable time. Members need not approve such change.
    (b) The subject matter of a meeting or the determination of the 
Board to open or to close a meeting, or a portion thereof, to the public 
may be changed following public announcement if:
    (1) A majority of all Members determines by recorded vote that Board 
business so requires and that no earlier announcement of the change was 
possible; and
    (2) The Board publicly announces such change and the vote of each 
Member thereon at the earliest practicable time.
    (c) The deletion of any subject matter announced for a meeting is 
not a change requiring the approval of the Board under paragraph (b) of 
this section.



Sec. 1704.8  Transcripts, recordings, or minutes of closed meetings.

    Along with the General Counsel's certification and presiding 
officer's statement referred to in Sec. 1704.5(d), the Board shall 
maintain a complete transcript or electronic recording adequate to 
record fully the proceedings of each meeting, or a portion thereof, 
closed to the public. The Board may maintain a set of minutes in lieu of 
such transcript or recording for meetings closed pursuant to Sec. 
1704.4(i). Such minutes shall fully and clearly describe all matters 
discussed and shall provide a full and accurate summary of any actions 
taken, and the reasons therefor, including a description of each of the 
views expressed on any item and the record of any rollcall vote.



Sec. 1704.9  Availability and retention of transcripts, recordings, and minutes, and applicable fees.

    The Board shall make promptly available to the public in the Public 
Reading Room the transcript, electronic recording, or minutes of the 
discussion of any item on the agenda or of any testimony received at a 
closed meeting, except for such item, or items, of discussion or 
testimony as determined by the Board to contain matters which may be 
withheld under the exemptive provisions of Sec. 1704.4. Copies of the 
nonexempt portions of the transcript or minutes, or transcription of 
such recordings disclosing the identity of each speaker, shall be 
furnished to any person at the actual cost of transcription or 
duplication. If at some later time the Board determines that there is no 
further justification for withholding a portion of a transcript, 
electronic recording, or minutes or other item of information from the 
public which has previously been withheld, such portion or information 
shall be made publicly available. The Board shall maintain a complete 
verbatim copy of the transcript, a complete copy of the minutes, or a 
complete electronic recording of each meeting, or a portion thereof, 
closed to the public for at least two years after such meeting, or until 
one year after the conclusion of any Board proceeding with respect to 
which the meeting, or a portion thereof, was held, whichever occurs 
later.



Sec. 1704.10  Severability.

    If any provision of this part or the application of such provision 
to any person or circumstances, is held invalid, the remainder of this 
part or the application of such provision to persons or circumstances 
other than those as to which it is held invalid, shall not be affected 
thereby.



PART 1705_PRIVACY ACT--Table of Contents



Sec.
1705.01 Scope.
1705.02 Definitions.
1705.03 Systems of records notification.
1705.04 Requests by persons for access to their own records.
1705.05 Processing of requests.
1705.06 Appeals from access denials.
1705.07 Requests for correction of records.
1705.08 Appeals from correction denials.
1705.09 Disclosure of records to third parties.
1705.10 Fees.
1705.11 Exemptions.

    Authority: 5 U.S.C. 552a(f).

    Source: 56 FR 47144, Sept. 18, 1991, unless otherwise noted.



Sec. 1705.01  Scope.

    This part contains the Board's regulations implementing the Privacy 
Act of 1974, Public Law 93-579, 5 U.S.C. 552a.

[[Page 1046]]



Sec. 1705.02  Definitions.

    The following terms used in these regulations are defined in the 
Privacy Act, 5 U.S.C. 552a(a): agency, individual, maintain, record, 
system of records, statistical record, and routine use. The Board's use 
of these terms conforms with the statutory definitions. References in 
this part to ``the Act'' refer to the Privacy Act of 1974.



Sec. 1705.03  Systems of records notification.

    (a) Public notice. The Board has published in the Federal Register 
its systems of records. The Office of the Federal Register biennially 
compiles and publishes all systems of records maintained by all Federal 
agencies, including the Board.
    (b) Requests regarding record systems. Any person who wishes to know 
whether a system of records contains a record pertaining to him or her 
may file a request in person or in writing. Written requests should be 
directed to: Privacy Act Officer, Defense Nuclear Facilities Safety 
Board, 625 Indiana Avenue, NW., Suite 700, Washington, DC 20004. 
Telephone requests should be made by calling the Board at 202-208-6400, 
and asking to speak to the Privacy Act Officer.



Sec. 1705.04  Requests by persons for access to their own records.

    (a) Requests in writing. A person may request access to his or her 
own records in writing by addressing a letter to: Privacy Act Officer, 
Defense Nuclear Facilities Safety Board, 625 Indiana Avenue, NW., suite 
700, Washington, DC 20004. The request should contain the following 
information:
    (1) Full name, address, and telephone number of requester,
    (2) Proof of identification, which should be a copy of one of the 
following: Valid driver's license, valid passport, or other current 
identification which contains both an address and picture of the 
requester,
    (3) The system of records in which the desired information is 
contained, and
    (4) At the requester's option, authorization for copying expenses 
(see Sec. 1705.10 below).
    (b) Requests in person. Any person may examine his or her own 
records on the Board's premises. To do so, the person should call the 
Board's offices at 202-208-6400 and ask to speak to the Privacy Act 
Officer. This call should be made at least two weeks prior to the time 
the requester would like to see the records. During this call, the 
requester should be prepared to provide the same information as that 
listed in paragraph (a) of this section, except for proof of 
identification.



Sec. 1705.05  Processing of requests.

    (a) Requests in writing. The Privacy Act Officer will acknowledge 
receipt of the request within five working days of its receipt in the 
Board's offices. The acknowledgment will advise the requester if any 
additional information is needed to process the request. Within fifteen 
working days of receipt of the request, the Privacy Act Officer will 
provide the requested information or will explain to the requester why 
additional time is needed for response.
    (b) Requests in person. Following the initial call from the 
requester, the Privacy Act Officer will determine (1) whether the 
records identified by the requester exist, and (2) whether they are 
subject to any exemption under Sec. 1705.11 below. If the records exist 
and are not subject to exemption, the Privacy Act Officer will call the 
requester and arrange an appointment at a mutually agreeable time when 
the records can be examined. The requester may be accompanied by one 
person of his or her own choosing, and should state during this call 
whether or not a second individual will be present at the appointment. 
At the appointment, the requester will be asked to present 
identification as stated in Sec. 1705.04(a)(2).
    (c) Excluded information. If a request is received for information 
compiled in reasonable anticipation of litigation, the Privacy Act 
Officer will inform the requester that this information is not subject 
to release under the Privacy Act (see 5 U.S.C. 552a(d)(5)).



Sec. 1705.06  Appeals from access denials.

    When access to records has been denied by the Privacy Act Officer, 
the requester may file an appeal in writing. This appeal should be 
directed to The

[[Page 1047]]

Chairman, Defense Nuclear Facilities Safety Board, 625 Indiana Avenue 
NW., suite 700, Washington, DC 20004. The appeal letter must (a) specify 
those denied records which are still sought, and (b) state why the 
denial by the Privacy Act Officer is erroneous. The Chairman or his 
designee will respond to such appeals within twenty working days after 
the appeal letter has been received in the Board's offices. The appeal 
determination will explain the basis for continuing to deny access to 
any requested records.



Sec. 1705.07  Requests for correction of records.

    (a) Correction requests. Any person is entitled to request 
correction of a record pertaining to him or her. This request must be 
made in writing and should be addressed to Privacy Act Officer, Defense 
Nuclear Facilities Safety Board, 625 Indiana Avenue, NW., Suite 700, 
Washington, DC 20004. The letter should clearly identify the corrections 
desired. An edited copy of the record will usually be acceptable for 
this purpose.
    (b) Initial response. Receipt of a correction request will be 
acknowledged by the Privacy Act Officer in writing within five working 
days of receipt of the request. The Privacy Act Officer will endeavor to 
provide a letter to the requester within thirty working days stating 
whether or not the request for correction has been granted or denied. If 
the Privacy Act Officer decides to deny any portion of the correction 
request, the reasons for the denial will be provided to the requester.



Sec. 1705.08  Appeals from correction denials.

    (a) When amendment of records has been denied by the Privacy Act 
Officer, the requester may file an appeal in writing. This appeal should 
be directed to The Chairman, Defense Nuclear Facilities Safety Board, 
625 Indiana Avenue, NW., Suite 700, Washington, DC 20004. The appeal 
letter must (1) specify the records subject to the appeal, and (2) state 
why the denial of amendment by the Privacy Act Officer is erroneous. The 
Chairman or his designee will respond to such appeals within thirty 
working days (subject to extension by the Chairman for good cause) after 
the appeal letter has been received in the Board's offices.
    (b) The appeal determination, if adverse to the requester in any 
respect, will: (1) Explain the basis for denying amendment of the 
specified records, (2) inform the requester that he or she may file a 
concise statement setting forth reasons for disagreeing with the 
Chairman's determination, and (3) inform the requester of his or her 
right to pursue a judicial remedy under 5 U.S.C. 552a(g)(1)(A).



Sec. 1705.09  Disclosure of records to third parties.

    Records subject to the Privacy Act that are requested by any person 
other than the individual to whom they pertain will not be made 
available except in the following circumstances:
    (a) Their release is required under the Freedom of Information Act 
in accordance with the Board's FOIA regulations, 10 CFR part 1703;
    (b) Prior consent for disclosure is obtained in writing from the 
individual to whom the records pertain; or
    (c) Release is authorized by 5 U.S.C. 552a(b) (1) or (3) through 
(11).



Sec. 1705.10  Fees.

    A fee will not be charged for search or review of requested records, 
or for correction of records. When a request is made for copies of 
records, a copying fee will be charged at the same rate established for 
FOIA requests. See 10 CFR 1703.107. However, the first 100 pages of 
copying will be free of charge.



Sec. 1705.11  Exemptions.

    Pursuant to 5 U.S.C. 552a(k), the Board has determined that system 
of records DNFSB-3, ``Drug Testing Program Records,'' is partially 
exempt from 5 U.S.C. 552(a)(c)(3), (d), (e)(1), (e)(4)(G), (H), (I), and 
(f). The exemption pertains to portions of these records which would 
identify persons supplying information on drug abuse by Board employees 
or contractors.

[[Page 1048]]



PART 1706_ORGANIZATIONAL AND CONSULTANT CONFLICTS OF INTERESTS--Table of Contents



Sec.
1706.1 Scope; statement of policy.
1706.2 Definitions.
1706.3 Applicability.
1706.4 Head of the contracting activity.
1706.5 General rules.
1706.6 Solicitation provisions.
1706.7 Procedures.
1706.8 Waiver.
1706.9 Examples.
1706.10 Remedies.
1706.11 Organizational conflicts of interest certificate--Advisory or 
          assistance services.

    Authority: 42 U.S.C. 2286b(c).

    Source: 57 FR 44652, Sept. 29, 1992, unless otherwise noted.



Sec. 1706.1  Scope; statement of policy.

    (a) Scope. This part sets forth the guidelines, requirements, and 
procedures the Defense Nuclear Facilities Safety Board will follow in 
determining whether a contractor or offeror has an organizational or 
consultant conflict of interest (OCI) and in avoiding, neutralizing, or 
mitigating OCIs.
    (b) Policy. It is the policy of the Board to identify and then avoid 
or mitigate organizational and consultant conflicts of interest. 
Normally, the Board will not award contracts to offerors who have OCIs 
and will terminate contracts where OCIs are identified following 
contract award. In exceptional circumstances, the Board reserves the 
right to waive conflicts of interest if it determines that such action 
is in the best interests of the Government, pursuant to Sec. 1706.8, 
and to take such mitigating measures as it deems appropriate pursuant to 
such section.



Sec. 1706.2  Definitions.

    Advisory or assistance services means services acquired by contract 
to advise or assist the Board, whether with respect to its internal 
functions or its oversight of defense nuclear facilities, or otherwise 
to support or improve policy development or decisionmaking by the Board, 
or management or administration of the Board, or to support or improve 
the operation of the Board's management systems. Such services may take 
the form of the provision of information, advice, reports, opinions, 
alternatives, conclusions, recommendations, training, direct assistance, 
or performance of site visits, technical reviews, investigation of 
health and safety practices or other appropriate services.
    Affiliates means associated business concerns or individuals if, 
directly or indirectly, either one controls or can control the other or 
a third party controls or can control both.
    Board means, as the context requires, the Defense Nuclear Facilities 
Safety Board, its Chairman, or any other officer of the Defense Nuclear 
Facilities Safety Board to whom the appropriate delegation has been made 
under 42 U.S.C. 2286(c)(3).
    Contract means any contract, agreement, or other arrangement with 
the Board, except as provided in Sec. 1706.3.
    Contractor means any person, firm, unincorporated association, joint 
venture, co-sponsor, partnership, corporation, or other entity, or any 
group of one or more of the foregoing, which is a party to a contract 
with the Board, and the affiliates and successors in interest of such 
party. The term ``contractor'' also includes the chief executive and 
directors of a party to a contract with the Board, the key personnel of 
such party identified in the contract, and current or proposed 
consultants or subcontractors to such party. The term ``contractor'' 
shall also include consultants engaged directly by the Board through the 
use of a contract.
    Defense nuclear facility means any United States Department of 
Energy (DOE) defense nuclear facility, as defined in 42 U.S.C. 2286g, 
subject to the Board's oversight.
    Evaluation activities means activities that involve evaluation of 
some aspect of defense nuclear facilities.
    Mitigating means, with respect to an organizational or consultant 
conflict of interest, reducing or counteracting the effects of such a 
conflict of interest on the Board, but without eliminating or avoiding 
the conflict of interest.

[[Page 1049]]

    National Laboratories means laboratories operated by educational 
institutions or business entities under management and operating 
contracts with DOE.
    Offeror means any person, firm, unincorporated association, joint 
venture, partnership, corporation, or other entity, or any group of one 
or more of the foregoing, submitting a bid or proposal to the Board, 
solicited, unsolicited or otherwise invited by the Board, to obtain a 
contract, and the affiliates and successors in interest of such a bidder 
or proposer. The term ``offeror'' also includes the chief executive and 
directors of such a bidder or proposer, the key personnel of a bidder or 
proposer identified in the bid or proposal, and proposed consultants or 
subcontractors to such bidder or proposer.
    Organizational or consultant conflict of interest means that, 
because of other past, present, or future planned activities or 
relationships, an offeror or contractor is unable, or potentially 
unable, to render impartial assistance or advice to the Board, or the 
objectivity of such offeror or contractor in performing contract work 
for the Board is or might be otherwise impaired, or such offeror or 
contractor has or would have an unfair competitive advantage. The term 
``organizational or consultant conflict of interest'' shall include, but 
not be limited to, actions or situations that would preclude the award 
or extension of a contract under, or would be prohibited by, Sec. 
1706.5.
    Potential organizational or consultant conflict of interest means a 
factual situation that indicates or suggests that an actual 
organizational or consultant conflict of interest may exist or arise 
from award of a proposed contract or from continuation of an existing 
contract. The term is used to signify those situations that merit 
conflicts review prior to contract award or that must be reported to the 
contracting officer for conflicts review if they arise during contract 
performance.
    Research means any scientific, engineering, or other technical work 
involving theoretical analysis, exploration, or experimentation.
    Subcontractor means any subcontractor of any tier which performs 
work under a prime contract with the Board.
    Task order contract means a Board contract that contains a broad 
scope of work but does not authorize the contractor to perform specific 
tasks within that broad scope until the contracting officer issues task 
orders.
    Unfair competitive advantage means an advantage obtained by an 
offeror or contractor to the Board by virtue of the relationship of the 
offeror or contractor with the Board or access to information not 
available to other offerors or contractors, and recognized in 
appropriate legal precedent as unfair.
    In determining the meaning of any provision of this part, unless the 
context indicates otherwise, the singular includes the plural; the 
plural includes the singular; the present tense includes the future 
tense; and words of one gender include the other gender.



Sec. 1706.3  Applicability.

    (a) General applicability. This part applies to contractors and 
offerors only, except as otherwise herein provided. This part shall be 
incorporated by reference and made a part of all Board contracts in 
excess of the small purchases threshold, except as provided in the last 
sentence of this Sec. 1706.3(a). In addition, if determined appropriate 
by the contracting officer for the Board, this part may be incorporated 
by reference and made a part of Board contracts below the small 
purchases threshold, except as provided in the last sentence of this 
Sec. 1706.3(a). This part does not apply to the acquisition of 
services, including, without limitation, consulting services, through 
the personnel appointment process or to Board agreements with other 
federal government agencies, but shall apply to Board agreements with 
the management and operating contractors (and subcontractors and 
consultants thereto) of the National Laboratories.
    (b) Subcontractors and consultants. The requirements of this part 
shall also apply to subcontractors and consultants proposed for, or 
working on, a Board contract, in each case where the amount of the 
subcontract or consultant agreement under which such subcontractor or 
consultant is or will be

[[Page 1050]]

working is expected to exceed $10,000, and in each other case where the 
contracting officer for the Board deems it appropriate to make the 
requirements of this part applicable to a subcontractor or consultant 
proposed for, or working on, a Board contract. The certificates or 
disclosures submitted by offerors or contractors pursuant to this part 
shall include certificates or disclosures from all subcontractors and 
consultants to contractor or offerors in those cases where this part 
applies by its terms to such subcontractors or consultants or has been 
applied to such persons by the contracting officer. Contractors and 
offerors shall assure that contract clauses giving effect to this Sec. 
1706.3(b), satisfactory to the contracting officer, are included in 
subcontracts and consultant agreements of any tier involving performance 
of work under a prime contract covered by this part.

[57 FR 44652, Sept. 29, 1992; 58 FR 13684, Mar. 12, 1993]



Sec. 1706.4  Head of the contracting activity.

    The head of the contracting activity for the Board shall be the 
General Manager.



Sec. 1706.5  General rules.

    (a) Award of Contracts. Contracts shall generally not be awarded to 
an offeror:
    (1) For any services where the award would result in the offeror 
evaluating products or services it has provided to the Board, is then 
providing to the Board, or is then offering to provide for the Board;
    (2) For evaluation activities or research related to the Board's 
oversight of defense nuclear facilities, where the award would result in 
the offeror evaluating products or services it has provided, is then 
providing, or is then offering to provide to DOE or to contractors or 
subcontractors for defense nuclear facilities; or
    (3) For any other services (the acquisition of which is otherwise 
covered by this part), where the Board has determined, pursuant to Sec. 
1706.7, that an actual or potential OCI exists and cannot be avoided, 
and the Board does not waive that OCI. Paragraphs (a) (1) and (2) of 
this section also apply when award would result in evaluation of 
products or services of another entity where the offeror has been, is, 
or would be substantially involved in the development of the product or 
performance of the service, or has other substantial involvement 
regarding the product or services.
    (b) Subsequent related contracts. (1) A Board contractor under a 
Board contract shall normally be ineligible to participate in Board 
contracts or subcontracts that stem directly from the contractor's 
performance of work under a previous Board contract, where the Board 
determines that an OCI would exist because:
    (i) The expectation of receiving the subsequent contract is likely 
to diminish the contractor's capacity to give impartial assistance and 
advice, or otherwise result in a biased work product; or
    (ii) An offeror on the subsequent contract would have an unfair 
competitive advantage by virtue of having performed the first contract.
    (2) If a contractor under a Board contract prepares a complete or 
essentially complete statement of work or specifications in the 
performance of a contract, the contractor shall be ineligible to perform 
or participate in the initial contractual effort that is based on such 
statement of work or specifications. The contractor shall not 
incorporate its products or services in such statement of work or 
specifications.
    (c) National Laboratory personnel. The Board may engage personnel of 
the National Laboratories who have expertise needed by the Board in the 
performance of its oversight responsibilities, provided that prior to 
each such engagement, the Board determines either:
    (1) That the nature of work performed by such personnel for DOE does 
not pose actual or potential OCIs with respect to the particular work 
covered by the Board contract; or
    (2) That such engagement is in the Government's best interests and 
that a waiver should be granted pursuant to Sec. 1706.8. In all cases 
involving National Laboratory personnel, notice of the circumstances of 
the contract, stating the

[[Page 1051]]

rationale for use of the personnel, shall be published in the Federal 
Register.
    (d) Work for others. During the term of any Board contract, the 
contractor may not enter into consulting or other contractual 
arrangements with other persons or entities, the result of which could 
give rise to an OCI with respect to the work being performed under the 
contract. The prime contractor shall ensure that all of its employees, 
subcontractors, and consultants under the contract abide by this 
paragraph. If the contractor has reason to believe that any proposed 
arrangement with other persons or entities may involve an actual or 
potential OCI, it shall promptly inform the Board in writing of all 
pertinent facts regarding such proposed arrangement. In the case of task 
order contracts, this paragraph applies, subject to Sec. 1706.7(c), 
only to specific ongoing tasks that the contracting officer authorizes 
the contractor to perform.
    (e) Contractor protection of Board information that is not publicly 
available. If the contractor in the performance of a Board contract 
obtains access to information, such as Board plans, policies, reports, 
studies, or financial plans, or internal data protected by the Privacy 
Act (5 U.S.C. 552a), proprietary information, or any other data which 
has not been released to the public, the contractor shall not:
    (1) Use such information for any private purpose until the 
information has been released or is otherwise made available to the 
public;
    (2) Compete for work for the Board based on such information for a 
period of six months after either the contract has been completed or 
such information has been released or otherwise made available to the 
public, whichever occurs first, or submit an unsolicited proposal to the 
Government based on such information until one year after such 
information is released or otherwise made available to the public, 
unless a waiver permitting such action has been granted pursuant to 
Sec. 1706.8; or
    (3) Release the information without prior written approval of the 
contracting officer, unless such information has previously been 
released or otherwise made available to the public by the Board.

[57 FR 44652, Sept. 29, 1992; 58 FR 13684, Mar. 12, 1993]



Sec. 1706.6  Solicitation provisions.

    (a) Advisory or assistance services. There shall be included in all 
formal Board solicitations for advisory or assistance services where the 
contract amount is expected to exceed $25,000 (or the then applicable 
small purchases threshold), a provision requiring a certificate 
representing whether award of the contract to the offeror would present 
actual or potential OCIs. Apparent successful offerors will be required 
to submit such certificates, but the Board may also require such a 
certificate to be submitted in other circumstances, such as:
    (1) Where the contracting officer has identified certain offerors 
who have passed an initial screening and has determined that it is 
appropriate to request the identified offerors to file the certificate 
in order to expedite the award process; or
    (2) In the case of modifications for additional effort under Board 
contracts, except those issued under the ``changes'' clause. If a 
certificate has been previously submitted with regard to the contract 
being modified, only an updating of such statement shall be required for 
a contract modification.

In addition, if determined appropriate by the contracting officer for 
the Board, such certificates may be required in connection with any 
other contracts subject to this part or in which this part has been 
incorporated by reference.
    (b) Marketing consultant services. There shall further be included 
in all Board solicitations, except sealed bids, where the contract 
amount is expected to exceed $200,000, a provision requiring an 
organizational conflicts of interest certificate from any marketing 
consultants engaged by an offeror in support of the preparation or 
submission of an offer for a Board contract by that offeror.

[57 FR 44652, Sept. 29, 1992; 58 FR 13684, Mar. 12, 1993]

[[Page 1052]]



Sec. 1706.7  Procedures.

    (a) Pre-award disclosure and resolution of OCIs. If a certificate 
under Sec. 1706.6 indicates, or the Board otherwise learns, that actual 
or potential OCIs could be, or would appear to be, created by contract 
award to a particular offeror, the Board shall afford the affected 
offeror an opportunity to provide in writing all relevant facts bearing 
on the certificate. If the Board thereafter determines that an actual or 
potential OCI exists, one of the following actions shall ultimately be 
taken:
    (1) Disqualify the offeror;
    (2) Include in the contract appropriate terms and conditions which 
avoid the conflict, in which case no waiver is required; or
    (3) Make a finding that it is in the best interests of the 
Government to seek award of the contract under the waiver provisions of 
Sec. 1706.8, and, where reasonably possible, include contract terms and 
conditions or take other measures which mitigate such conflicts.
    (b) Post-award disclosure and resolution of OCIs. (1) If, after 
contract award, the contractor discovers actual or potential OCIs with 
respect to the contract, it shall make an immediate and full disclosure 
in writing to the contracting officer. This statement shall include a 
description of the action that the contractor has taken or proposes to 
avoid or mitigate such conflicts.
    (2) If a disclosure under this section indicates, or the Board 
otherwise learns, that actual or potential OCIs exist, the Board may 
afford the contractor an opportunity to provide all relevant facts 
bearing upon the problem. If at any time the Board determines that an 
actual or potential OCI exists, one of the following actions shall 
ultimately be taken:
    (i) Terminate the contract, or, in the case of a task order 
contract, terminate the particular task;
    (ii) Insist on appropriate contract terms and conditions which avoid 
the OCIs, in which case no waiver is required; or
    (iii) Make a finding that it is in the best interests of the 
Government to permit the contractor to continue to perform the contract 
(or task) under the waiver provisions of Sec. 1706.8, and, where 
reasonably possible, insist on appropriate contract terms and conditions 
or take other measures which mitigate the OCIs.
    (c) Task order contracts. (1) Because a task order contract 
generally entails a broad scope of work, apparent successful offerors 
shall be required to identify in their certificates filed in accordance 
with Sec. 1706.6 any actual or potential OCIs that come within the full 
scope of the contract. The Board may decline to award a task order 
contract to an offeror based upon such information or it may decline to 
approve performance of a particular task by the contractor if an actual 
or potential OCI is subsequently identified with respect to that 
particular task. The Board may also take the other actions identified in 
Sec. 1706.7(a) to avoid or mitigate such conflicts.
    (2) Contractors performing task order contracts for the Board shall 
disclose to the contracting officer any new work for others they propose 
to undertake that may present an actual or potential OCI with regard to 
the performance of any work under the full scope of the Board contract. 
Such disclosure shall be made at least 15 days prior to the submission 
of a bid or proposal for the new work. The disclosure shall include the 
statement of work and any other information necessary to describe fully 
the proposed work and contemplated relationship.
    (3) If the Board has issued a task order or a letter request for 
proposal under the contract with a contractor who has disclosed to the 
contracting officer that it proposes to undertake new work for persons 
other than the Board as described in Sec. 1706.7(c)(2), for services in 
the same technical area and/or at the same defense nuclear facility that 
is the subject of the proposed new work (including overlap based upon 
generic work performed for others by the contractor), the Board shall 
inform the contractor that entering into a contract for the new work may 
result in termination by the Board of the task order contract, if the 
Board determines that such work would give rise to an OCI and the Board 
does not grant a waiver.

[[Page 1053]]

    (d) Decisions on OCIs. The contracting officer shall make 
recommendations to the General manager regarding disqualification or 
actions to be taken by the Board to avoid or mitigate any actual or 
potential OCI.
    (1) The General Manager shall have the authority to approve, modify, 
or disapprove such recommendations regarding avoidance of an actual or 
potential OCI. If an offeror or contractor disagrees with the actions 
approved by the General Manager and requests review of the action, the 
Chairman shall make the decision on the actions to be taken by the 
Board.
    (2) Any recommended action respecting the best interests of the 
Government and mitigation measures to be taken with respect to an actual 
or potential OCI must be approved by the Chairman in conjunction with 
the decision to grant a waiver pursuant to Sec. 1706.8, and any 
recommended action to terminate a contract or a particular task on 
account of an actual or potential OCI must be approved by the Chairman.
    (3) Decisions on OCIs by the General Manager or the Chairman shall 
be made with the advice of the Office of the General Counsel.

[57 FR 44652, Sept. 29, 1992; 58 FR 13684, Mar. 12, 1993]



Sec. 1706.8  Waiver.

    (a) Waiver of OCIs. The need for a waiver of any OCI in connection 
with the award or continuation of specific contracts may be identified 
either by the contracting officer for the Board or other Board employee 
or by a written request filed by an offeror or contractor with the 
contracting officer. The request may be combined with the certificate or 
disclosure required under Sec. Sec. 1706.6 or 1706.7, or with 
additional statements filed under Sec. 1706.7 regarding matters raised 
in the certificate or disclosure. The contracting officer shall review 
all of the relevant facts brought to his attention and shall bring the 
matter to the General Manager, who shall make a written recommendation 
to the Chairman of the Board regarding whether a waiver should be 
granted for a contract award or for continuation of an existing 
contract.
    (b) Criteria for Waiver of OCIs. (1) The Chairman is authorized to 
waive any OCI (and the corresponding provision of Sec. 1706.5 where 
applicable) upon a determination that awarding or extending the 
particular contract, or not terminating the particular contract, would 
be in the best interests of the Government. Issuance of a waiver shall 
ordinarily be limited to those situations in which:
    (i) The work to be performed under contract is vital to the Board 
program;
    (ii) The work cannot be satisfactorily performed except by a 
contractor or offeror whose interests give rise to a question of OCI; 
and
    (iii) Contractual and/or technical review and supervision methods 
can be employed by the Board to mitigate the conflict.
    (2) The Chairman is also authorized to waive any OCI (and the 
corresponding provision of Sec. 1706.5 where applicable), without 
regard to the foregoing factors, if the Chairman determines, 
notwithstanding the existence of the OCI, that it is in best interests 
of the Government to award or extend the particular contract, or not to 
terminate it, without compliance with Sec. 1706.8(b)(1).
    (c) Waiver of Rules or Procedures. The Chairman is also authorized 
to waive any rules or procedures contained in this part upon a 
determination that application of the rules or procedures in a 
particular situation would not be in the best interests of the 
Government. Any request for such a waiver must be in writing and shall 
describe the basis for the waiver.
    (d) Office of General Counsel. Waivers of OCIs or of any rule or 
procedure contained in this part shall be made after consultation with 
the Office of General Counsel.
    (e) Federal Register. Except as otherwise provided in Sec. 
1706.8(c), notice of each waiver granted under this section shall be 
published in the Federal Register with an explanation of the basis for 
the waiver. In the discretion of the Board, notices of instances of 
avoidance of OCIs may also be published in the Federal Register.

[[Page 1054]]



Sec. 1706.9  Examples.

    The examples in this section illustrate situations in which 
questions concerning OCIs may arise. The examples are not all inclusive, 
but are intended to provide offerors and contractors with guidance on 
how this subpart will be applied.
    (a) Circumstances--(1) Facts. A Board contractor for technical 
assistance in the review of a safety aspect of a particular defense 
nuclear facility proposes to use the services of an expert who also 
serves on an oversight committee for a contractor of other defense 
nuclear facilities.
    (2) Guidance. Assuming the work of the oversight committee has no 
direct or indirect relationship with the work at the facility that is 
the subject of the Board's contract, there would not be an OCI 
associated with the use of this expert in the performance of the Board 
contract.
    (b) Circumstances--(1) Facts. A Board contractor studying the 
potential for a chemical explosion in waste tanks at a defense nuclear 
facility advises the Board that it has been offered a contract with DOE 
to study the chemical composition of the waste in the same tanks.
    (2) Guidance. The contractor would be advised that accepting the DOE 
contract would result in termination of its performance under its 
contract with the Board.
    (c) Circumstances--(1) Facts. The Board issues a task order under an 
existing contract for the evaluation of the adequacy of fire protection 
systems at a defense nuclear facility. The contractor then advises the 
Board that it is considering making an offer on a solicitation by DOE to 
evaluate the same matter.
    (2) Guidance. The contractor would be advised that entering into a 
contract with DOE on that solicitation could result in the contract with 
the Board being terminated.
    (d) Circumstances--(1) Facts. A firm responding to a formal Board 
solicitation for technical assistance provides information regarding a 
contract it currently has with DOE. The effort under the DOE contract is 
for technical assistance work at DOE facilities not subject to Board 
oversight and outside its jurisdiction.
    (2) Guidance. The Board would analyze the work being performed for 
DOE to ensure no potential or actual conflict of interest would be 
created through award of the Board contract. Should the Board determine 
that no potential or actual conflict of interest exists, the contractor 
would be eligible for award. If the Board determines that a potential or 
actual conflict of interest would arise through a contract award, it may 
disqualify the firm or, if the Board determines that such action is in 
the best interests of the Government, the Board may waive the conflict 
or the rules and procedures and proceed with the award.
    (e) Circumstances--(1) Facts. The Board discovers that a firm 
competing for a contract has a number of existing agreements with DOE in 
technical areas which are unrelated to the Board's oversight authority. 
While these contracts may not represent a potential or actual conflict 
of interest regarding the substance of the technical effort, their total 
value constitutes a significant portion of the firm's gross revenues.
    (2) Guidance. A conflict of interest may exist due to the firm's 
substantial pecuniary dependence upon DOE. Consequently, the Board may 
question the likelihood that the contractor would provide unbiased 
opinions, conclusions, and work products because of this extensive 
financial relationship. The Board will review and consider the extent of 
the firm's financial dependence on DOE, the nature of the proposed Board 
contract, the need by the Board for the services and expertise to be 
provided by the firm and the availability of such services and expertise 
elsewhere, and whether the likelihood of the firm's providing objective 
technical evaluations and opinions to the Board could be influenced in 
view of its DOE relationship. Based on this analysis, the Board may 
either determine that there is no conflict and make the award, waive the 
conflict if one is identified and establish procedures to mitigate it 
where possible, or disqualify the offeror.
    (f) Circumstances--(1) Facts. The Board discovers that a firm 
competing

[[Page 1055]]

for a contract has a substantial business relationship in technical 
areas unrelated to the Board's oversight authority with a contractor 
operating a defense nuclear facility under a DOE contract. Similar to 
the situation described in paragraph (e) of this section, the total 
value of the contracts with the DOE contractor constitutes more than 
half of the firm's gross revenues, even though those contracts do not 
represent a potential or actual conflict of interest regarding any of 
the particular matters to be covered by the contract with the Board.
    (2) Guidance. The firm's substantial financial and business 
dependence upon the DOE contractor may give rise to a conflict of 
interest, in that the likelihood of the firm's rendering impartial, 
objective assistance or advice to the Board may be impaired by its 
extensive financial relationship with the DOE contractor. In this 
situation, the Board will review and consider the nature of the proposed 
Board contract, the need by the Board for the services and expertise to 
be provided by the firm and the availability of such services and 
expertise elsewhere. The Board will also review and consider the extent 
of the firm's financial dependence on the DOE contractor and whether the 
firm would be impartial and objective in providing technical evaluation 
and opinions to the Board, especially on matters in which the DOE 
contractor is involved, notwithstanding the relationship with the DOE 
contractor. Based on this analysis, the Board may determine that there 
is no actual conflict of interest and make the award. Alternatively, if 
the Board identifies a conflict that cannot be avoided, the Board may 
determine to waive the conflict in the best interests of the United 
States, with or without the establishment of procedures to mitigate the 
conflict, or it may disqualify the offeror.

[57 FR 44652, Sept. 29, 1992; 58 FR 13684, Mar. 12, 1993]



Sec. 1706.10  Remedies.

    The refusal to provide the certificate, or upon request of the 
contracting officer the additional written statement, required by 
Sec. Sec. 1706.6 and 1706.7 in connection with an award shall result in 
disqualification of the offeror for that award. The nondisclosure or 
misrepresentation of any relevant information may also result in the 
disqualification of the offeror for that award. If such nondisclosure or 
misrepresentation by an offeror or contractor is discovered or occurs 
after award, or in the event of breach of any of the restrictions 
contained in this part, the Board may terminate the contract for 
convenience or default, and the offeror or contractor may also be 
disqualified by the Board from consideration for subsequent Board 
contracts and be subject to such other remedial actions as provided by 
law or the contract.

[57 FR 44652, Sept. 29, 1992; 58 FR 13684, Mar. 12, 1993]



Sec. 1706.11  Organizational conflicts of interest certificate--Advisory or assistance services.

    As prescribed in or permitted by Sec. 1706.6(a), insert the 
following provision in Board solicitations:

    Organizational and Consultant Conflicts of Interest Certificate--
              Advisory and Assistance Services (Oct. 1990)

    (a) An organizational or consultant conflict of interest means that 
because of other activities or relationships with other persons, a 
person is unable or potentially unable to render impartial assistance or 
advice to the Government, or the person's objectivity in performing the 
contract work is or might be otherwise impaired, or a person has an 
unfair competitive advantage.
    (b) In order to comply with the Office of Federal Procurement Policy 
Letter 89-1, Conflict of Interest Policies Applicable to Consultants, 
the offeror shall provide the certificate described in paragraph (c) of 
this provision.
    (c) The certificate must contain the following:
    (1) Name of the agency and the number of the solicitation in 
question.
    (2) The name, address, telephone number, and federal taxpayer 
identification number of the offeror.
    (3) A description of the nature of the services rendered by or to be 
rendered on the instant contract.
    (4) The name, address, and telephone number of the client or 
clients, a description of the services rendered to the previous 
client(s), and the name of a responsible officer

[[Page 1056]]

or employee of the offeror who is knowledgeable about the services 
rendered to each client, if, in the 12* months preceding the date of the 
certification, services were rendered to the Government or any other 
client (including a foreign government or person) respecting the same 
subject matter as the instant solicitation, or directly relating to such 
subject matter. The agency and contract number under which the services 
were rendered must also be included, if applicable.
---------------------------------------------------------------------------

    * If approved by the head of the contracting activity, this period 
may be increased up to 36 months.
---------------------------------------------------------------------------

    (5) A statement that the person who signs the certificate has made 
inquiry and that, to the best of his or her knowledge and belief, no 
actual or potential conflict of interest or unfair competitive advantage 
exists with respect to the advisory or assistance services to be 
provided in connection with the instant contract, or that any actual or 
potential conflict of interest or unfair competitive advantage that does 
or may exist with respect to the contract in question has been 
communicated in writing to the contracting officer or his or her 
representative; and
    (6) The signature, name, employer's name, address, and telephone 
number of the person who signed the certificate.
    (d) Persons required to certify but who fail to do so may be 
determined to be nonresponsible. Misrepresentation of any fact may 
result in suspension or debarment, as well as penalties associated with 
false certifications or such other provisions provided for by law or 
regulation.

                           (End of provision)



PART 1707_TESTIMONY BY DNFSB EMPLOYEES AND PRODUCTION OF OFFICIAL RECORDS IN LEGAL PROCEEDINGS--Table of Contents



                      Subpart A_General Provisions

Sec.
1707.101 Scope and purpose.
1707.102 Applicability.
1707.103 Definitions.

      Subpart B_Requests for Testimony and Production of Documents

1707.201 General prohibition.
1707.202 Factors DNFSB will consider.
1707.203 Filing requirements for demands or requests for documents or 
          testimony.
1707.204 Service of subpoenas or requests.
1707.205 Processing demands or requests.
1707.206 Final determination.
1707.207 Restrictions that apply to testimony.
1707.208 Restrictions that apply to released records.
1707.209 Procedure when a decision is not made prior to the time a 
          response is required.
1707.210 Procedure in the event of an adverse ruling.

                       Subpart C_Schedule of Fees

1707.301 Fees.

                           Subpart D_Penalties

1707.401 Penalties.

    Authority: 42 U.S.C. 2286b(c); 44 U.S.C. 3101-3107, 3301-3303a, 
3308-3314.

    Source: 66 FR 66715, Dec. 27, 2001, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 1707.101  Scope and purpose.

    (a) This part sets forth policies and procedures you must follow 
when you submit a demand or request to an employee of the Defense 
Nuclear Facilities Safety Board (DNFSB) to produce official records and 
information, or provide testimony relating to official information, in 
connection with a legal proceeding. You must comply with these 
requirements when you request the release or disclosure of official 
records and information.
    (b) The Defense Nuclear Facilities Safety Board intends these 
provisions to:
    (1) Promote economy and efficiency in its programs and operations;
    (2) Minimize the possibility of involving DNFSB in controversial 
issues not related to our functions;
    (3) Maintain DNFSB's impartiality among private litigants where 
DNFSB is not a named party; and
    (4) Protect sensitive, confidential information and the deliberative 
processes of DNFSB.
    (c) In providing for these requirements, DNFSB does not waive the 
sovereign immunity of the United States.
    (d) This part provides guidance for the internal operations of 
DNFSB. It does not create any right or benefit, substantive or 
procedural, that a party may rely upon in any legal proceeding against 
the United States.

[[Page 1057]]



Sec. 1707.102  Applicability.

    This part applies to demands and requests to employees for factual, 
opinion, or expert testimony relating to official information, or for 
production of official records or information, in legal proceedings 
whether or not the United States or the DNFSB is a named party. However, 
it does not apply to:
    (a) Demands upon or requests for a DNFSB employee to testify as to 
facts or events that are unrelated to his or her official duties or that 
are unrelated to the functions of DNFSB;
    (b) Demands upon or requests for a former DNFSB employee to testify 
as to matters in which the former employee was not directly or 
materially involved while at the DNFSB;
    (c) Requests for the release of records under the Freedom of 
Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; and
    (d) Congressional demands and requests for testimony or records.



Sec. 1707.103  Definitions.

    DNFSB means the Defense Nuclear Facilities Safety Board.
    DNFSB employee or employee means:
    (1) Any current or former officer or employee of DNFSB;
    (2) Any contractor or contractor employee working on behalf of the 
DNFSB or who has performed services for DNFSB; and
    (3) Any individual who is serving or has served in any advisory 
capacity to DNFSB, whether formal or informal.
    (4) Provided, that this definition does not include persons who are 
no longer employed by DNFSB and who are retained or hired as expert 
witnesses or who agree to testify about general matters, matters 
available to the public, or matters with which they had no specific 
involvement or responsibility during their employment with DNFSB.
    Demand means a subpoena, or an order or other demand of a court or 
other competent authority, for the production, disclosure, or release of 
records or for the appearance and testimony of a DNFSB employee that is 
issued in a legal proceeding.
    General Counsel means the General Counsel of DNFSB or a person to 
whom the General Counsel has delegated authority under this part.
    Legal proceeding means any matter before a court of law, 
administrative board or tribunal, commission, administrative law judge, 
hearing officer, or other body that conducts a legal or administrative 
proceeding. Legal proceeding includes all phases of litigation.
    Records or official records and information mean:
    (1) All documents and materials which are DNFSB agency records under 
the Freedom of Information Act, 5 U.S.C. 552;
    (2) All other documents and materials contained in DNFSB files; and
    (3) All other information or materials acquired by a DNFSB employee 
in the performance of his or her official duties or because of his or 
her official status.
    Request means any formal or informal request, by whatever method, 
for the production of records and information or for testimony which has 
not been demanded by a court or other competent authority.
    Testimony means any written or oral statements, including but not 
limited to depositions, answers to interrogatories, affidavits, 
declarations, interviews, and statements made by an individual in 
connection with a legal proceeding.



      Subpart B_Requests for Testimony and Production of Documents



Sec. 1707.201  General prohibition.

    No employee may produce official records and information or provide 
any testimony relating to official information in response to a demand 
or request without the prior, written approval of the General Counsel.



Sec. 1707.202  Factors DNFSB will consider.

    The General Counsel, in his or her sole discretion, may grant an 
employee permission to testify on matters relating to official 
information, or produce official records and information, in response to 
a demand or request. Among the relevant factors that the General Counsel 
may consider in making this decision are whether:
    (a) The purposes of this part are met;

[[Page 1058]]

    (b) Allowing such testimony or production of records would be 
necessary to prevent a miscarriage of justice;
    (c) DNFSB has an interest in the decision that may be rendered in 
the legal proceeding;
    (d) Allowing such testimony or production of records would assist or 
hinder DNFSB in performing its statutory duties or use DNFSB resources 
where responding to the request will interfere with the ability of DNFSB 
employees to do their work;
    (e) Allowing such testimony or production of records would be in the 
best interest of DNFSB or the United States;
    (f) The records or testimony can be obtained from other sources;
    (g) The demand or request is unduly burdensome or otherwise 
inappropriate under the applicable rules of discovery or the rules of 
procedure governing the case or matter in which the demand or request 
arose;
    (h) Disclosure would violate a statute, executive order or 
regulation;
    (i) Disclosure would reveal confidential, sensitive, or privileged 
information, trade secrets or similar, confidential commercial or 
financial information, or otherwise protected information, or would 
otherwise be inappropriate for release;
    (j) Disclosure would impede or interfere with an ongoing law 
enforcement investigation or proceedings;
    (k) Disclosure would compromise constitutional rights;
    (l) Disclosure would result in DNFSB appearing to favor one litigant 
over another;
    (m) Disclosure relates to documents that were produced by another 
agency;
    (n) A substantial Government interest is implicated;
    (o) The demand or request is within the authority of the party 
making it; and
    (p) The demand or request is sufficiently specific to be answered.



Sec. 1707.203  Filing requirements for demands or requests for documents or testimony.

    You must comply with the following requirements whenever you issue 
demands or requests to a DNFSB employee for official records, 
information, or testimony.
    (a) Your request must be in writing and must be submitted to the 
General Counsel. If you serve a subpoena on DNFSB or a DNFSB employee 
before submitting a written request and receiving a final determination, 
DNFSB will oppose the subpoena on grounds that your request was not 
submitted in accordance with this subpart.
    (b) Your written request must contain the following information:
    (1) The caption of the legal proceeding, docket number, and name and 
address of the court or other authority involved;
    (2) A copy of the complaint or equivalent document setting forth the 
assertions in the case and any other pleading or document necessary to 
show relevance of the testimony, records, or information you seek from 
the DNFSB;
    (3) A list of categories of records sought, a detailed description 
of how the information sought is relevant to the issues in the legal 
proceeding, and a specific description of the substance of the testimony 
or records sought;
    (4) A statement as to how the need for the information outweighs the 
need to maintain any confidentiality of the information and outweighs 
the burden on DNFSB to produce the records or provide testimony;
    (5) A statement indicating that the information sought is not 
available from another source, from other persons or entities, or from 
the testimony of someone other than a DNFSB employee, such as a retained 
expert;
    (6) If testimony is requested, the intended use of the testimony, a 
general summary of the desired testimony, and a showing that no document 
could be provided and used in lieu of testimony;
    (7) A description of all prior decisions, orders, or pending motions 
in the case that bear upon the relevance of the requested records or 
testimony;
    (8) The name, address, and telephone number of counsel to each party 
in the case; and
    (9) An estimate of the amount of time that the requester and other 
parties will require with each DNFSB employee for time spent by the 
employee to prepare for testimony, in travel, and for attendance in the 
legal proceeding.

[[Page 1059]]

    (c) The Defense Nuclear Facilities Safety Board reserves the right 
to require additional information to complete your request where 
appropriate.
    (d) Your request should be submitted at least 45 days before the 
date that records or testimony is required. Requests submitted in less 
than 45 days before records or testimony is required must be accompanied 
by a written explanation stating the reasons for the late request and 
the reasons for expedited processing.
    (e) Failure to cooperate in good faith to enable the General Counsel 
to make an informed decision may serve as the basis for a determination 
not to comply with your request.



Sec. 1707.204  Service of subpoenas or requests.

    Subpoenas or requests for official records or information or 
testimony must be served on the General Counsel, Defense Nuclear 
Facilities Safety Board, 625 Indiana Avenue, NW., Suite 700, Washington, 
DC 20004-2901.



Sec. 1707.205  Processing demands or requests.

    (a) After service of a demand or request to testify, the General 
Counsel will review the demand or request and, in accordance with the 
provisions of this subpart, determine whether, or under what conditions, 
to authorize the employee to testify on matters relating to official 
information and/or produce official records and information.
    (b) The Defense Nuclear Facilities Safety Board will process 
requests in the order in which they are received. Absent exigent or 
unusual circumstances, DNFSB will respond within 45 days from the date 
that we receive it. The time for response will depend upon the scope of 
the request.
    (c) The General Counsel may grant a waiver of any procedure 
described by this subpart where a waiver is considered necessary to 
promote a significant interest of the DNFSB or the United States or for 
other good cause.



Sec. 1707.206  Final determination.

    The General Counsel makes the final determination on demands and 
requests to employees for production of official records and information 
or testimony. All final determinations are within the sole discretion of 
the General Counsel. The General Counsel will notify the requester and 
the court or other authority of the final determination, the reasons for 
the grant or denial of the demand or request, and any conditions that 
the General Counsel may impose on the release of records or information, 
or on the testimony of a DNFSB employee.



Sec. 1707.207  Restrictions that apply to testimony.

    (a) The General Counsel may impose conditions or restrictions on the 
testimony of DNFSB employees including, for example, limiting the areas 
of testimony or requiring the requester and other parties to the legal 
proceeding to agree that the transcript of the testimony will be kept 
under seal or will only be used or made available in the particular 
legal proceeding for which testimony was requested. The General Counsel 
may also require a copy of the transcript of testimony at the 
requester's expense.
    (b) The DNFSB may offer the employee's written declaration in lieu 
of testimony.
    (c) If authorized to testify pursuant to this part, an employee may 
testify as to facts within his or her personal knowledge, but, unless 
specifically authorized to do so by the General Counsel, the employee 
shall not:
    (1) Disclose classified, privileged, or otherwise protected 
information;
    (2) Testify as an expert or opinion witness with regard to any 
matter arising out of the employee's official duties or the functions of 
DNFSB unless testimony is being given on behalf of the United States 
(see also 5 CFR 2635.805 for current employees).



Sec. 1707.208  Restrictions that apply to released records.

    (a) The General Counsel may impose conditions or restrictions on the 
release of official records and information, including the requirement 
that parties to the proceeding obtain a protective order or execute a 
confidentiality agreement to limit access and any further disclosure. 
The terms of

[[Page 1060]]

the protective order or of a confidentiality agreement must be 
acceptable to the General Counsel. In cases where protective orders or 
confidentiality agreements have already been executed, DNFSB may 
condition the release of official records and information on an 
amendment to the existing protective order or confidentiality agreement.
    (b) If the General Counsel so determines, original DNFSB records may 
be presented for examination in response to a demand or request, but 
they are not to be presented as evidence or otherwise used in a manner 
by which they could lose their identity as official DNFSB records, nor 
are they to be marked or altered. In lieu of the original records, 
certified copies will be presented for evidentiary purposes (see 28 
U.S.C. 1733).



Sec. 1707.209  Procedure when a decision is not made prior to the time a response is required.

    If a response to a demand or request is required before the General 
Counsel can make the determination referred to in Sec. 1707.201, the 
General Counsel, when necessary, will provide the court or other 
competent authority with a copy of this part, inform the court or other 
competent authority that the demand or request is being reviewed, and 
seek a stay of the demand or request pending a final determination.



Sec. 1707.210  Procedure in the event of an adverse ruling.

    If the court or other competent authority fails to stay the demand, 
the employee upon whom the demand is made, unless otherwise advised by 
the General Counsel, will appear at the stated time and place, produce a 
copy of this part, state that the employee has been advised by counsel 
not to provide the requested testimony or produce documents, and 
respectfully decline to comply with the demand, citing United States ex 
rel. Touhy v. Ragen, 340 U.S. 462 (1951). A written response may be 
offered to a request, or to a demand, if permitted by the court or other 
competent authority.



                       Subpart C_Schedule of Fees



Sec. 1707.301  Fees.

    (a) Generally. The General Counsel may condition the production of 
records or appearance for testimony upon advance payment of a reasonable 
estimate of the costs to DNFSB.
    (b) Fees for records. Fees for producing records will include fees 
for searching, reviewing, and duplicating records, costs of attorney 
time spent in reviewing the demand or request, and expenses generated by 
materials and equipment used to search for, produce, and copy the 
responsive information. Costs for employee time will be calculated on 
the basis of the hourly pay of the employee (including all pay, 
allowance, and benefits). Fees for duplication will be the same as those 
charged by DNFSB in its Freedom of Information Act fee regulations at 10 
CFR part 1703.
    (c) Witness fees. Fees for attendance by a witness will include 
fees, expenses, and allowances prescribed by the court's rules. If no 
such fees are prescribed, witness fees will be determined based upon the 
rule of the Federal district court closest to the location where the 
witness will appear. Such fees will include cost of time spent by the 
witness to prepare for testimony, in travel, and for attendance in the 
legal proceeding.
    (d) Payment of fees. You must pay witness fees for current DNFSB 
employees and any records certification fees by submitting to the 
General Counsel a check or money order for the appropriate amount made 
payable to the Treasury of the United States. In the case of testimony 
by former DNFSB employees, you must pay applicable fees directly to the 
former employee in accordance with 28 U.S.C. 1821 or other applicable 
statutes.
    (e) Certification (authentication) of copies of records. The Defense 
Nuclear Facilities Safety Board may certify that records are true copies 
in order to facilitate their use as evidence. If you seek certification, 
you must request certified copies from DNFSB at least 45 days before the 
date they will be needed. The request should be sent to the General 
Counsel. You will be charged a

[[Page 1061]]

certification fee of $15.00 for each document certified.
    (f) Waiver or reduction of fees. The General Counsel, in his or her 
sole discretion, may, upon a showing of reasonable cause, waive or 
reduce any fees in connection with the testimony, production, or 
certification of records.
    (g) De minimis fees. Fees will not be assessed if the total charge 
would be $10.00 or less.



                           Subpart D_Penalties



Sec. 1707.401  Penalties.

    (a) An employee who discloses official records or information or 
gives testimony relating to official information, except as expressly 
authorized by DNFSB or as ordered by a Federal court after DNFSB has had 
the opportunity to be heard, may face the penalties provided in 18 
U.S.C. 641 and other applicable laws. Additionally, former DNFSB 
employees are subject to the restrictions and penalties of 18 U.S.C. 207 
and 216.
    (b) A current DNFSB employee who testifies or produces official 
records and information in violation of this part shall be subject to 
disciplinary action.

[[Page 1063]]



    CHAPTER XVIII--NORTHEAST INTERSTATE LOW-LEVEL RADIOACTIVE WASTE 
                               COMMISSION




  --------------------------------------------------------------------
Part                                                                Page
1800            Declaration of Party State Eligibility for 
                    Northeast Interstate Low-Level 
                    Radioactive Waste Compact...............        1065

[[Page 1065]]



PART 1800_DECLARATION OF PARTY STATE ELIGIBILITY FOR NORTHEAST INTERSTATE LOW-LEVEL RADIOACTIVE WASTE COMPACT--Table of Contents



Sec.
1800.10 Purpose and scope.
1800.11 Definitions.
1800.12 Procedures for declaring a state eligible for membership in the 
          Compact.
1800.13 Conditions for becoming an eligible party state.
1800.14 Modification to and enforcement of the rules in this part.

    Authority: Sec. 227, Art. IV(i)(7), Art. VII(e), Pub. L. 99-240, 99 
Stat. 1842, 1914, 1921-1922.

    Source: 65 FR 30835, May 15, 2000, unless otherwise noted.



Sec. 1800.10  Purpose and scope.

    Pursuant to Articles IV.i.(1), (7), (15), and VII.e. of the 
Northeast Interstate Low-Level Radioactive Waste Compact (enacted by the 
``Omnibus Low-Level Radioactive Waste Compact Consent Act of 1985,'' 
Public Law 99-240, 99 Stat. 1842, Title I) (the ``Compact''), the 
Northeast Interstate Low-Level Radioactive Waste Commission (the 
``Commission'') establishes through this part the conditions that it 
deems necessary and appropriate to be met by a state requesting 
eligibility to become a party state to this Compact. The Commission 
shall apply these conditions to evaluate the petition of any state 
seeking to be eligible to become a party state pursuant to Article VII 
of the Compact.



Sec. 1800.11  Definitions.

    The definitions contained in Article II of the Compact and Article 
I.B. of the Commission's By Laws shall apply throughout this part. For 
the purposes of this part, additional terms are defined as follows:
    (a) By Laws refers to the Commission's By Laws as adopted and 
amended by the Commission pursuant to Article IV.c. and Article IV.i.(7) 
of the Compact, most recently amended on December 10, 1998, and dated 
July 1999;
    (b) Person means an individual, corporation, business enterprise or 
other legal entity, either public or private, and expressly includes 
states;
    (c) Nuclear power station means any facility holding a license from 
the U.S. Nuclear Regulatory Commission under 10 CFR Part 50.
    (d) Existing party states means Connecticut and New Jersey 
collectively.



Sec. 1800.12  Procedures for declaring a state eligible for membership in the Compact.

    (a) Any state seeking to become an eligible state under the Compact 
shall submit to the Chairman of the Commission six copies of a petition 
to become an eligible state. The petition shall discuss each of the 
conditions specified in Sec. 1800.13 and shall:
    (1) Affirm that the petitioning state fully satisfies each 
condition; or
    (2) Explain why the petitioning state does not or cannot fully 
satisfy any particular condition.
    (b) Upon receipt of a petition from any state seeking to become an 
eligible state under the Compact, the Commission shall publish a notice 
in accordance with Article I.F.1. of the By Laws and shall initiate an 
adjudicatory proceeding to act on the petition. Any person may submit 
written comments on a petition, and all such comments must be received 
by the Commission within 30 days of notice that a petition has been 
submitted.
    (c) The Commission shall evaluate the petition against the 
conditions for declaration of an eligible state specified in Sec. 
1800.13. As part of the proceeding to evaluate a petition to become an 
eligible state, the Commission may, in its discretion, conduct a hearing 
pursuant to Article IV.i.(6) of the Compact and Article V.F.1. of the 
Commission's By-Laws. For good cause shown, the Commission may issue an 
order shortening the notice period for hearings provided in Article 
I.F.1. of the By Laws to a period of not less than ten days.
    (d) After review of the petition and after any hearing, if held, the 
Commission shall issue an order accepting or rejecting the petition or 
accepting the petition with conditions. If the Commission accepts the 
petition without conditions, the petitioning state shall be declared an 
eligible state and shall become a new party state upon passage of the 
Compact by its state legislature,

[[Page 1066]]

repeal of all statutes or statutory provisions that pose unreasonable 
impediments to the capability of the state to satisfy the conditions for 
eligibility (as determined by the Commission) and payment of (or 
arrangement to pay) the fee specified in Article IV.j.(1). If the 
Commission accepts the petition with conditions, the petitioning state 
may become an eligible state by satisfying all of the conditions in the 
Commission's order and providing an amended petition incorporating its 
compliance with all of the conditions in this subpart and in the 
Commission's order. The Commission will consider the amended petition as 
part of the original adjudicatory proceeding and will issue a new order 
accepting or rejecting the amended petition.
    (e) A state that submits a petition for declaration as an eligible 
state that is rejected by the Commission may submit a new petition at 
any time. The Commission will consider the new petition without 
reference to the prior petition but may use evidence obtained in any 
prior proceeding to evaluate the new petition.
    (f) The Commission's consideration of a petition for declaration of 
an eligible state shall be governed by the Compact, the Commission's By 
Laws, and this part.



Sec. 1800.13  Conditions for becoming an eligible party state.

    The Commission shall evaluate a petition to become an eligible party 
state on the basis of the following conditions and criteria:
    (a) To be eligible for Compact membership, a state must agree that 
it will be the voluntary host state upon admission to the Compact and 
will continue to be the voluntary host state for a least that period of 
time until all currently licensed nuclear power stations within the 
region have been fully decommissioned and their licenses (including any 
licenses for storage of spent nuclear fuel under 10 CFR Part 72) have 
been terminated.
    (b) To be eligible for Compact membership, a state must agree that, 
so long as the petitioning state remains within the Compact, it will be 
the sole host state.
    (c) To be eligible for Compact membership, a state must warrant the 
availability of a regional disposal facility that will accommodate 
800,000 cubic feet of waste from generators located within the borders 
of the existing party states.
    (d) To be eligible for Compact membership, a state must agree to 
establish a uniform fee schedule for waste disposal at the regional 
disposal facility that shall apply to all generators within the region. 
That uniform fee schedule, including all surcharges (except new 
surcharges imposed pursuant to Article V.f.3. of the Compact), shall not 
exceed the average fees that generators within the existing party states 
paid for disposal at the Barnwell, South Carolina, facility at the end 
of calendar year 1999, adjusted annually based on an acceptable 
inflation index.
    (e) To be eligible for Compact membership, a state must agree with 
the existing states that regional generators shall be permitted to 
process or dispose of waste at sites outside the Compact boundaries 
based solely on the judgment and discretion of each regional generator.
    (f) To be eligible for Compact membership, a state must agree with 
the existing states that the Commission may authorize importation of 
waste from non-regional generators for the purpose of disposal only if 
the host state approves and such importation does not jeopardize the 
warranted availability of 800,000 cubic feet of disposal capacity for 
waste produced by generators within the existing party states. A new 
party state must agree that regional generators shall not pay higher 
fees than non-regional generators and that all books and records related 
to the establishment or collection of fees shall be available for 
Commission review.
    (g) To be eligible for Compact membership, in addition to the 
express limitations on non-host state and Commission liability provided 
in the Compact, a state must agree to indemnify the Commission or the 
existing party states for any damages incurred solely because of the new 
state's membership in the Compact and for any damages associated with 
any injury to persons or property during the institutional

[[Page 1067]]

control period as a result of the radioactive waste and waste management 
operations of any regional facility. The petitioning state must agree 
that this indemnification obligation will survive the termination of the 
petitioning state's membership in the Compact.
    (h) To be eligible for Compact membership, a state must agree that 
any incentive payments made by the existing party states as an 
inducement for a state to join the Compact will be returned to the 
existing party states, with interest, on a pro rata basis if, for any 
reason, the regional disposal facility ceases to be available to 
generators in the existing party states for a period of more than six 
months (other than periods that have been expressly approved and 
authorized by the Commission) or is unavailable for disposal of 800,000 
cubic feet of waste from generators within the borders of the existing 
states. In the event of such unavailability, the new party state must 
agree to return the incentive payments based on the following schedule:
    (1) 75% of the incentive payment if the regional facility becomes 
unavailable prior to January 1, 2002;
    (2) 50% of the incentive payment if the regional facility becomes 
unavailable on or after January 1, 2002, and prior to January 1, 2004;
    (3) 30% of the incentive payment if the regional facility becomes 
unavailable on or after January 1, 2004, and prior to January 1, 2006;
    (4) 20% of the incentive payment if the regional facility becomes 
unavailable on or after January 1, 2006, and prior to January 1, 2009;
    (5) 10% of the incentive payment if the regional facility becomes 
unavailable on or after January 1, 2009, and prior to the time when all 
currently licensed nuclear power stations within the region have been 
fully decommissioned and their licenses (including any licenses for 
storage of spent nuclear fuel under 10 CFR Part 72) have been 
terminated.
    (i) To be eligible for Compact membership, a state must agree with 
the existing states that once a new party state has been admitted to 
membership in the Compact pursuant to the rules in this part, 
declaration of any other state as an eligible party state will require 
the unanimous consent of all members of the Commission.



Sec. 1800.14  Modification to and enforcement of the rules in this part.

    (a) Because of the importance of the conditions for declaration of 
an eligible state under the Compact, the rules in this part may only be 
modified, amended, or rescinded after a public hearing held pursuant to 
Article IV.i.(6) of the Compact and Article V.F.1. of the Commission's 
By Laws and by a unanimous vote of all members of the Commission.
    (b) Any party state may enforce the rules in this part by bringing 
an action against or on behalf of the Commission in the United States 
District Court for the District of Columbia pursuant to Article IV.n. of 
the Compact.
    (c) If, for any reason, any portion of the rules in this part shall 
be declared invalid or unenforceable, the remainder of the rules in this 
part shall remain in full force and effect.

[[Page 1069]]



                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 1071]]



                    Table of CFR Titles and Chapters




                     (Revised as of January 1, 2011)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100--
                199)
        II  Office of Management and Budget Circulars and Guidance 
                (200--299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300-- 
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1880--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
       XXX  Department of Homeland Security (Parts 3000--3099)

[[Page 1072]]

      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)
        II  Recovery Accountability and Transparency Board (Parts 
                200--299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600-- 3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)

[[Page 1073]]

      XXXV  Office of Personnel Management (Parts 4500--4599)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
     LXXII  Special Inspector General for Iraq Reconstruction 
                (Parts 8200--8299)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 8700--8799)
    LXXXII  Special Inspector General for Iraq Reconstruction 
                (Parts 9200--9299)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)

[[Page 1074]]

      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Parts 9900--9999)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)

[[Page 1075]]

      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)
         L  Rural Business-Cooperative Service, Rurual Housing 
                Service, and Rural Utilities Service, Department 
                of Agriculture (Parts 5000--5099)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

[[Page 1076]]

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

[[Page 1077]]

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

[[Page 1078]]

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

[[Page 1079]]

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millenium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                HousingCommissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)

[[Page 1080]]

         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

[[Page 1081]]

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

[[Page 1082]]

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Bureau of Ocean Energy Management, Regulation, and 
                Enforcement, Department of the Interior (Parts 
                200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
         X  Financial Crimes Enforcement Network, Departmnent of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)

[[Page 1083]]

      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvmeent, 
                Department of Education [Reserved]
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)

[[Page 1084]]

         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)
        II  Armed Forces Retirement Home

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)

[[Page 1085]]

        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
  103--104  [Reserved]
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
  129--200  [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)

[[Page 1086]]

       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899) 
                [Reserved]
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

[[Page 1087]]

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Health and Human Services (Parts 300--399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)

[[Page 1088]]

        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

[[Page 1089]]

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 1091]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of January 1, 2011)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Administrative Conference of the United States    1, III
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            2, IV; 5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  National Institute of Food and Agriculture.     7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII, L
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV, L
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII, L
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 1092]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Bureau of Ocean Energy Management, Regulation,    30, II
     and Enforcement
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 1093]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Human Resources Management and Labor Relations  5, XCIX
       Systems
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    2, LVIII; 11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99

[[Page 1094]]

  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    5, LXXX; 12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Financial Crimes Enforcement Network              31, X
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II

[[Page 1095]]

General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A,
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII

[[Page 1096]]

Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  MBureau of Ocean Energy Management,             30, II
       Regulation, and Enforcement
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
Investment Security, Office of                    31, VIII
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                2, XXVII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V

[[Page 1097]]

  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Office of Workers' Compensation Programs        20, VII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
  Copyright Royalty Board                         37, III
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millenium Challenge Corporation                   22, XIII
Mine Safety and Health Administration             30, I
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Food and Agriculture.       7, XXXIV
National Institute of Standards and Technology    15, II
National Intelligence, Office of Director of      32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III

[[Page 1098]]

National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III, IV
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Natural Resource Revenue, Office of               30, XII
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Office of Workers' Compensation Programs          20, VII
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Human Resources Management and Labor Relations  5, XCIX
       Systems, Department of Defense
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Recovery Accountability and Transparency Board    4, II
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII, L

[[Page 1099]]

Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
Special Inspector General for Iraq                5, LXXXVII
     Reconstruction
State Department                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
   Commission
[[Page 1100]]

United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 1101]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes affected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected, 1973-1985 and 1986-2000'', published in eight separate 
volumes.

                                  2001

10 CFR
                                                                   66 FR
                                                                    Page
Chapter II
600 Authority citation revised.....................................34784
600.6 (c)(8) revised...............................................34784
Chapter III
710 Authority citation revised.....................................47062
710.1 (b) revised..................................................47062
710.4 (c) revised; (g) added.......................................47062
710.5 Amended......................................................47063
710.7 (a) revised..................................................47063
710.8 (f) amended; (g), (h), (j), (k) and (l) amended..............47063
710.9 Revised......................................................47063
710.10 (a) and (d) revised; (e) and (f) added......................47064
710.21 Heading, (a) and (b)(2) revised; (c) added..................47064
710.22 Revised.....................................................47064
710.23 Heading amended.............................................47065
710.27 Heading and (d) revised; (a) amended; (e), (f) and (g) 
        removed....................................................47065
710.28 Revised.....................................................47065
710.29 Redesignated as 710.30; new 710.29 added....................47065
710.30 Redesignated as 710.31; new 710.30 redesignated from 710.29
                                                                   47065
    (a) and (b)(1) amended; (b)(2) revised.........................47066
710.31 Redesignated as 710.32; new 710.31 redesignated from 710.30
                                                                   47065
    Revised........................................................47066
710.32 Redesignated as 710.33; new 710.32 redesignated from 710.31
                                                                   47065
    Revised........................................................47066
710.33 Redesignated as 710.34; new 710.33 redesignated from 710.32
                                                                   47065
    Revised........................................................47067
710.34 Redesignated as 710.35; new 710.34 redesignated from 710.33
                                                                   47065
710.35 Redesignated from 710.34....................................47065
    Revised........................................................47067
710.36 Added.......................................................47067
710.1--710.34 (Subpart A) Appendix B added.........................47067
719 Added...........................................................4621
    Regulation at 66 FR 4621 eff. date delayed......................8746
    Policy statement...............................................19717
830 Regulation at 65 FR 60308 confirmed; revised....................1818
    Regulation at 66 FR 1818 eff. date delayed......................8746
    Policy statement...............................................19717
960 Heading and authority citation revised.........................57334
960.1 Amended......................................................57334
960.2 Amended......................................................57334
960.3 Amended......................................................57334
960.3-1-4-4 Removed................................................57334
960.3-1-5 Revised..................................................57334
960.3-2 Amended....................................................57335
960.3-2-4 Removed..................................................57335
960 Appendix III amended...........................................57335
963 Added..........................................................57336
Chapter X
1040 Authority citation revised.....................................4630
    Policy statement...............................................18721

[[Page 1102]]

1040.1 Existing text designated as (a); (b) and (c) added...........4630
    Regulation at 66 FR 4630 eff. date delayed......................8747
1040.21--1040.57 (Subpart C) Removed................................4630
    Regulation at 66 FR 4630 eff. date delayed......................8747
1042 Added..........................................................4630
    Regulation at 66 FR 4630 eff. date delayed......................8747
    Policy statement...............................................18721
1044 Added; interim.................................................4642
    Regulation at 66 FR 4642 eff. date delayed......................8747
    Regulation at 66 FR 4642 confirmed.............................23833
1044.01 Revised....................................................54645
Chapter XVII
1707 Added; eff. 1-28-02...........................................66715

                                  2002

10 CFR
                                                                   67 FR
                                                                    Page
Chapter III
710 Authority citation revised.....................................65692
710.54 Amended.....................................................65692
710.60 (c) revised.................................................65692
852 Added..........................................................52853
Chapter X
1008 Authority citation revised.....................................4171
1008.12 (b)(1)(ii)(K), (L), (M), (2)(ii)(N), (O), (P), (3)(ii)(P), 
        (Q) and (R) added...........................................4171

                                  2003

10 CFR
                                                                   68 FR
                                                                    Page
Chapter I
600.3 Amended......................................................50650
600.4 (a)(1), (c)(2)(i) and (ii) amended...........................50650
600.15 (b)(4) and (5) removed......................................50650
600.27 Removed.....................................................50650
600.100--600.181 (Subpart B) Heading revised.......................50650
600.100 Amended....................................................50650
600.104 Amended....................................................50650
600.126 (d) and (e) removed; (c) revised...........................50650
600.127 (c) amended................................................50650
600.136 (b) revised; (a) and (e) amended; (d)(3) removed...........50650
600.180 Removed....................................................50650
600.181 Removed....................................................50650
600.301--600.381 (Subpart D) Added.................................50650
606 Added...................................................66544, 66566
606.440 Added......................................................66567
606.746 Added......................................................66568
606.836 Added......................................................66568
606.910 Amended....................................................66568
606.935 (b) added..................................................66568
606.1010 (b) added.................................................66568
607 Added...................................................66557, 66568
607.510 (c) amended................................................66568
607.605 (a)(2) amended.............................................66568
607.645 Amended....................................................66568
Chapter III
765 Authority citation revised.....................................32957
765.2 (c), (e), (f), (g) and (i) amended...........................32957
765.3 Amended......................................................32957
765.11 (b), (c)(1), (2) and (3) amended............................32957
765.12 (a) and (c) amended.........................................32957
765.21 (e) revised.................................................32957
765.23 Amended.....................................................32957
765.30 (b), (2) and (d) amended; (e)(2) revised....................32957
765.31 (a) removed; (b), (c) and (d) redesignated as new (a), (b) 
        and (c)....................................................32958
765.32 (a) and (c) amended.........................................32957
Chapter X
1015 Revised.......................................................48533
1018 Removed.......................................................48543
1021 Authority citation revised....................................51432
1021.313 (c) amended...............................................51432
1022 Revised.......................................................51432
1036 Removed.......................................................66568
1040 Heading and authority citation revised........................51346
1040.1 Amended.....................................................51346
1040.2 (a) amended.................................................51346
1040.3 (a) and (t) amended; (u) revised............................51346
1040.4 (a), (f) introductory text and (1) amended; (d) and (f) 
        heading revised............................................51346
1040.5 (b) and (c) amended.........................................51346
1040.6 (a) amended.................................................51346
1040.7 (b) amended.................................................51346
1040.11 (b) amended................................................51347
1040.12 (b) amended................................................51347
1040.13 (b) introductory text, (c) and (g) amended; (e) revised....51347

[[Page 1103]]

1040.14 (a)(1) introductory text amended...........................51347
1040.61 (b) amended................................................51347
1040.63 (a), (b)(1)(v), (3), (4)(ii), (6), (c) and (d) amended; 
        (c) heading revised........................................51347
1040.64 (c) amended................................................51347
1040.66 (a)(3) and (b)(8) amended..................................51347
1040.67 (a), (c) introductory text and (1) amended.................51347
1040.71 Undesignated center heading amended........................51347
1040.72 (a) heading revised; (a), (b) and (d)(3) amended...........51347
1040.74 Heading, (a) heading, (1) heading, (2) heading and (3) 
        heading revised; (a) introductory text, (1)(i), (iii), 
        (iv), (2) and (3) amended..................................51347
1040.81--1040.8913 (Subpart E) Authority citation revised..........51348
1040.81 Amended....................................................51348
1040.82 (a) amended................................................51348
1040.83 (i) amended................................................51348
1040.88 (a) and (c) amended........................................51348
1040.89-1 Amended..................................................51348
1040.89-5 (a), (b) introductory text and (c) amended...............51348
1040.89-6 (b), (c) and (e) amended.................................51348
1040.89-7 (a)(1), (3) and (b) amended..............................51348
1040.89-9 (a) introductory text, (1), (c)(1) and (2) amended.......51348
1040.89-11 Amended.................................................51348
1040.89-12 (b)(2) amended..........................................51348
1040.89-13 (b) introductory text amended...........................51348
1040.81--1040.8913 (Subpart E) Appendix A amended..................51348

                                  2004

10 CFR
                                                                   69 FR
                                                                    Page
Title 10 Nomenclature change.......................................18803
600.8 Heading, (a) introductory text, (2) and (c) revised...........7867
600.9 Removed.......................................................7867
600.10 (b) amended..................................................7867
Chapter III
710 Authority citation revised......................................3223
710.50--710.60 (Subpart B) Removed..................................3223
711 Removed.........................................................3223
712 Added...........................................................3223
852.2 Amended; interim.............................................13712
852.11 (b) revised; interim........................................13712
852.13 (a) revised; interim........................................13712
852.16 Revised; interim............................................13712

                                  2005

10 CFR
                                                                   70 FR
                                                                    Page
Chapter II
600.1 Amended; interim; eff. 3-15-06...............................69253
600.6 Amended; interim; eff. 3-15-06...............................69253
600.8 Amended; interim; eff. 3-15-06...............................69254
600.16 (b) amended; interim; eff. 3-15-06..........................69254
600.17 Amended; interim; eff. 3-15-06..............................69254
600.23 Amended; interim; eff. 3-15-06..............................69254
600.26 (a) amended; interim; eff. 3-15-06..........................69254
600.31 Added; interim..............................................37013
603 Added; interim; eff. 3-15-06...................................69254
625 Appendix A revised.............................................39367
Chapter III
733 Added; interim.................................................37014
745.101 (i) and Footnote 1 amended.................................36328
745.103 (a) and (b)(3) amended; OMB number.........................36328
745.109 OMB number.................................................36328
745.110 (a) amended; OMB number....................................36328
745.113 OMB number.................................................36328
745.115 OMB number.................................................36328
745.116 OMB number.................................................36328
745.117 OMB number.................................................36328
824 Added...........................................................3607
824.2 (c) corrected.................................................8716
Chapter XIII
Chapter XIII Established...........................................47080
1303 Added.........................................................47080

                                  2006

10 CFR
                                                                   71 FR
                                                                    Page
Chapter II
600.1 Regulation at 70 FR 69253 confirmed..........................27161
600.6 Regulation at 70 FR 69253 confirmed..........................27161

[[Page 1104]]

600.8 Regulation at 70 FR 69254 confirmed..........................27161
600.16 Regulation at 70 FR 69254 confirmed.........................27161
600.17 Regulation at 70 FR 69254 confirmed.........................27161
600.23 Regulation at 70 FR 69254 confirmed.........................27161
    Amended........................................................70460
600.26 Regulation at 70 FR 69254 confirmed.........................27161
602.1 Amended......................................................68729
602.4 (a) amended..................................................68729
602.5 (a) amended..................................................68729
602.7 (c) amended..................................................68729
602.9 (b) and (g) amended..........................................68729
602.10 (b) and (c) amended.........................................68730
602.16 Amended.....................................................68730
602.17 (a)(1) amended..............................................68730
603 Regulation at 70 FR 69254 confirmed; revised...................27161
603.200 Heading corrected..........................................29219
606 Removed........................................................70460
626 Added..........................................................65380
Chapter III
709 Revised........................................................57392
710 Authority citation revised..............................57397, 68730
710.4 (g) amended..................................................68730
710.5 (a) amended..................................................68730
710.6 (a) redesignated as (a)(1); (a)(2) added.....................57397
    (b) and (c) amended............................................68730
710.9 (c), (d) and (e) amended.....................................68730
710.10 (d), (e) introductory text and (f) amended..................68730
710.21 (a) amended.................................................68730
710.22 (b), (c) introductory text, (2) and (3) amended.............68730
710.23 Amended.....................................................68730
710.26 (j) amended.................................................68730
710.27 (d) amended.................................................68730
710.28 (a) introductory text, (3), (b)(1), (2), (c)(1), (2), (3) 
        and (d) amended............................................68730
710.29 (a) through (d) and (f) through (i) amended.................68731
710.30 (a), (b) introductory text and (2) amended..................68731
710.31 (a), (b) and (d) amended....................................68731
710.32 (c), (d) introductory text and (2) amended..................68731
710.36 Amended.....................................................68731
712.3 Amended......................................................68731
712.10 (b) amended.................................................68731
712.12 (c)(1), (d), (e) introductory text and (f)(1) amended.......68731
712.14 (f)(1) and (3) amended......................................68731
712.22 Amended.....................................................68731
712.23 Amended.....................................................68731
712.34 (a), (b) introductory text, (c) and (d) amended.............68731
712.35 Heading revised; introductory text amended..................68732
712.36 (d)(1) and (3) amended......................................68732
725 Authority citation revised.....................................68732
725.1 Amended......................................................68732
725.3 (d) amended..................................................68732
725.4 Amended......................................................68732
725.5 Revised......................................................68732
725.7 Amended......................................................68732
725.11 (a) revised.................................................68732
725.13 Amended.....................................................68732
725.21 (a) and (b) amended.........................................68732
725.23 (b), (c)(1) and (4) amended.................................68732
725.24 Introductory text and (b) amended...........................68732
725.25 (b) amended.................................................68732
725.28 Heading revised; amended....................................68732
725.29 Amended.....................................................68732
725.30 Amended.....................................................68732
725 Appendix B removed.............................................68732
727 Added..........................................................40884
820.1 (c) amended..................................................68732
820.2 Amended......................................................68732
820 Appendix A amended.............................................68732
824 Appendix A amended.............................................68733
835.1 (b)(2) amended...............................................68733
835.2 (a) amended..................................................68733
850 Authority citation revised......................................6931
850.1 Revised; eff. 2-9-07..........................................6931
850.4 Revised; eff. 2-9-07..........................................6931
850.10 (b)(2) amended..............................................68733
850.39 (a) and (h) amended.........................................68733
851 Added; eff. 2-9-07..............................................6931
851.7 (a) correctly amended........................................36661
851.8 (b) and (c) amended..........................................68733
851.11 (b)(2) amended..............................................68733
851.27 (a)(2)(ii) amended..........................................68733
851.30 (a) amended.................................................68733
851.31 (d)(1), (2) and (3)(i) correctly amended....................36661
    (a)(1), (2), (3), (b) introductory text and (c)(5) amended.....68733
851.32 (a)(1), (2), (4), (c)(1), (2)(i) and (ii) amended...........68733
851.34 (a) and (c) amended.........................................68733
851 Appendix A correctly amended...................................36661

[[Page 1105]]

852 Removed........................................................68734
861 Authority citation revised.....................................68734
861.3 (c) amended..................................................68734
862.3 (f) amended..................................................68734
871.1 (b) introductory text revised; concluding text amended.......68734
871.2 Amended......................................................68734
871.3 Amended......................................................68734
871.4 Amended......................................................68734
950 Added; interim.................................................28217
    Revised........................................................46325
950.10 OMB number pending in part...........................28217, 46325
950.12 OMB number pending in part...........................28217, 46325
950.23 OMB number pending...................................28217, 46325
Chapter X
1004.2 (h) and (p) revised.........................................68734
1008.2 (c) revised.................................................68735
1010 Regulations at 61 FR 35088 and 63 FR 30111 confirmed..........48449
1016 Authority citation revised....................................68735
1016.3 (o) amended.................................................68735
1016.4 Revised.....................................................68735
1016.31 (b) amended................................................68735
1016.32 (a) amended................................................68735
1016.36 Amended....................................................68735
1016.43 Amended....................................................68735
1017.3 (u)(2)(iii) amended.........................................68735
1017.7 (a)(2) and (c) amended......................................68735
1017.8 (c) amended.................................................68735
1017.11 Introductory text amended..................................68735
1017.16 (a)(5), (b)(1), (3) introductory text, (4) and (c)(2) 
        amended....................................................68736
1017.17 (e)(2)(iv) amended.........................................68736
1017.18 (a) introductory text, (1)(i) introductory text, (C), (D), 
        (E), (ii), (iii), (2) introductory text, (v) and (3) 
        amended....................................................68736
1021.105 Revised...................................................68736
1044.07 Amended....................................................68736
1044.08 Amended....................................................68736
1044.09 Amended....................................................68736
1044.10 Amended....................................................68736
1044.11 (c) amended................................................68736
1044.12 Amended....................................................68736
1045 Authority citation revised....................................68736
1045.3 Amended.....................................................68736
1045.4 (a) introductory text, (b) introductory text and (f)(4) 
        amended....................................................68736
1045.7 (a) amended.................................................68736
1045.8 (a) and (b) amended.........................................68737
1045.12 (a) through (d) amended....................................68737
1045.14 (a)(1), (2), (b), (c) and (d) amended......................68737
1045.15 (a), (d) introductory text and (e) introductory text 
        amended....................................................68737
1045.16 (a), (b), (c), (d) introductory text amended...............68737
1045.17 (a) introductory text, (1), (2), (3) and (b) amended.......68737
1045.18 (a) and (b) amended........................................68737
1045.19 (a) and (b) amended........................................68737
1045.20 Amended....................................................68737
1045.22 (c) amended................................................68737
1045.33 (a) and (b) amended........................................68737
1045.35 (b) and (c) amended........................................68737
1045.36 (b) amended................................................68737
1045.37 (a) and (c) amended........................................68737
1045.39 (b)(3) amended.............................................68737
1045.42 (b)(5)(i), (ii), (c)(1), (2), (d)(1) and (2) amended.......68737
1045.43 (b) and (c) amended........................................68737
1045.45 (b) amended................................................68737
1045.52 (d) amended................................................68737
1045.53 (b) through (f) amended....................................68737
1046.3 Amended.....................................................68738
1046 Appendices A and B amended....................................68738
1049.8 (a) amended.................................................68738

                                  2007

10 CFR
                                                                   72 FR
                                                                    Page
Chapter III
820 Authority citation revised.....................................31921
820.2 Amended......................................................31921
820.13 Added.......................................................31921
820.21 (g) and (h) added...........................................31921
820 Appendix A amended.............................................31921
835 Authority citation revised.....................................31922
835.1 (b)(2) and (c) revised; (b)(4) removed; (b)(5) and (6) 
        redesignated as new (b)(4) and (5); (b) introductory text, 
        new (4) and (5) amended; new (b)(6), (7) and (d) added.....31922
835.2 Revised......................................................31922
835.4 Revised......................................................31925
835.101 (f) revised................................................31925

[[Page 1106]]

835.202 (a)(1) through (4) revised.................................31926
835.203 Revised....................................................31926
835.205 (b)(1), (2), (3) introductory text and (ii) revised........31926
835.206 (a) and (c) revised........................................31926
835.207 Revised....................................................31926
835.208 Revised....................................................31926
835.401 (a)(5) revised.............................................31926
835.402 (a)(1)(i), (ii), (iii), (2), (c)(1) and (2) revised........31926
835.405 (c)(2) revised; (e) added..................................31926
835.502 (a)(2) and (b) introductory text amended...................31926
835.602 (a) amended................................................31926
835.606 (a)(2) amended.............................................31927
835.702 (a), (b), (c)(3), (4)(i), (ii), (5)(i), (ii), (iii) and 
        (6) revised................................................31927
835.1001 (a) and (b) amended.......................................31927
835.1002 (b) amended...............................................31927
835.1003 Introductory text amended.................................31927
835.1202 (b) amended...............................................31927
835.1301 (d) amended...............................................31927
835 Appendix A revised.............................................31927
    Appendices C and E revised; Appendix D amended.................31940
Chapter XIII
1304 Added..........................................................8879

                                  2008

10 CFR
                                                                   73 FR
                                                                    Page
Chapter II
609.1 (c)(2) removed; (c)(1) redesignated as (c)....................1962
611 Added; interim.................................................66731
Chapter III
707 Authority citation revised......................................3863
707.7 (a)(2) amended; (b)(1) revised; (b)(2) removed; (b)(3) and 
        (4) redesignated as new (b)(2) and (3)......................3863
707.12 (b)(2) amended...............................................3863
900 Added; interim.................................................54459
905 Authority citation revised.....................................35062
905.11 (b)(4)(i) correctly revised.................................35062
905.12 (b)(3) revised..............................................35062
905.23 Revised.....................................................35062
Chapter X
1017 Revised.......................................................32641

                                  2009

10 CFR
                                                                   74 FR
                                                                    Page
Chapter II
501.181 (c)(1) revised; eff. 1-13-10...............................66032
600.2 (a) amended..................................................44275
600.3 Amended......................................................44275
600.4 (a)(1) amended...............................................44275
600.5 (d) amended..................................................44275
600.6 Revised......................................................44275
    (c) introductory text correctly amended........................48850
600.7 (c) amended..................................................44276
600.8 Heading revised; (a) introductory text, (1) and (2) 
        introductory text amended..................................44276
600.10 (b) and (c)(1) amended; (c)(4) removed; (f) added...........44276
600.11 Removed.....................................................44276
600.12 Removed.....................................................44276
600.14 Added.......................................................44276
600.15 (b)(2) amended..............................................44276
600.16 (b) redesignated as (c); new (b) added......................44276
600.17 Revised.....................................................44276
600.18 Removed.....................................................44276
600.19 Amended.....................................................44276
600.21 (a) amended.................................................44276
600.22 (a) and (e) amended; (d) and (f)(1) revised.................44276
600.23 Removed.....................................................44277
600.24 (a)(3) and (b) introductory text amended....................44277
600.25 (a)(1), (2), (b)(5), (d) and (f) amended; (b) revised.......44277
600.26 Removed.....................................................44277
600.28 Removed.....................................................44277
600.29 (b)(1), (5) and (6) amended.................................44277
600.30 Revised.....................................................44277
600.31 (c), (d) and (f)(5) amended.................................44278
600.112 Revised....................................................44278
600.113 Amended....................................................44278
600.117 Removed....................................................44278
600.305 Amended....................................................44278
601.400 (a), (b) and (e) revised; eff. 1-13-10.....................66032
601 Appendix A amended; eff. 1-13-10...............................66032
609 Revised........................................................63549
Chapter III
820.20 (c) and (d) revised; (e) and (f) added......................11843
820.81 Amended; eff. 1-13-10.......................................66033
824.1 Amended; eff. 1-13-10........................................66033
824.4 (c) revised; eff. 1-13-10....................................66033

[[Page 1107]]

824 Appendix A amended; eff. 1-13-10...............................66033
835.2 (b) corrected................................................18116
835 Appendix D corrected...........................................18116
851.5 (a) amended; eff. 1-13-10....................................66033
851 Appendix B amended; eff. 1-13-10...............................66033
Chapter X
1013.3 (a)(1)(iv) and (b)(1)(ii) revised; eff. 1-13-10.............66033
1017.29 (c) revised; eff. 1-13-10..................................66033
1021 Policy statement..............................................52129
1024 Removed.......................................................44278
1045.14 (a)(1) introductory text amended; CFR correction...........67969
1050.303 (d) amended; eff. 1-13-10.................................66034

                                  2010

10 CFR
                                                                   75 FR
                                                                    Page
Chapter II
607 Removed........................................................39445
Chapter III
851 Actions on petitions...........................................73946
Chapter X
1010 Authority citation revised....................................75375
    Heading revised; eff. 1-3-11...................................75376
1010.101--1010.104 (Subpart A) Designated as Subpart A; heading 
        added; eff. 1-3-11.........................................75376
1010.101 Amended; eff. 1-3-11......................................75376
1010.201--1010.203 (Subpart B) Added; eff. 1-3-11..................75376
Chapter XVII
1703 FOIA fee schedule.............................................39629


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