[Federal Register Volume 61, Number 24 (Monday, February 5, 1996)]
[Rules and Regulations]
[Pages 4209-4213]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2345]



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DEPARTMENT OF ENERGY

10 CFR Parts 830 and 835


Office of the General Counsel; Ruling 1995-1; Ruling Concerning 
10 CFR Parts 830 (Nuclear Safety Management) and 835 (Occupational 
Radiation Protection)

AGENCY: Department of Energy.

ACTION: Notice of Ruling 1995-1.

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SUMMARY: The Department of Energy (DOE) has issued Ruling 1995-1 which 
interprets certain regulatory provisions relating to DOE's nuclear 
safety requirements. This Ruling is intended to be a generally 
applicable clarification that addresses questions concerning the 
applicability and effect of these provisions.

FOR FURTHER INFORMATION CONTACT: Ben McRae, Office of the Assistant 
General Counsel for Civilian Nuclear Programs, Room 6A 167, Forrestal 
Building, 1000 Independence Ave., SW., Washington DC 20585; telephone 
(202) 586-6975.

SUPPLEMENTARY INFORMATION:

Department of Energy's Ruling 1995-1

A. Introduction

    The Assistant Secretary for Environment, Safety and Health has 
requested that the General Counsel respond to several questions 
regarding nuclear safety regulations 10 CFR Parts 830 (Nuclear Safety 
Management) and 835 (Occupational Radiation Protection).
    This ruling responds to those questions and constitutes an 
interpretation under Subpart D of 10 CFR Part 820.1

    \1\ Subpart D of Part 820 sets forth the procedural framework 
for issuing an interpretation, which is defined in Part 820.2(a) to 
mean:
    A statement by the General Counsel concerning the meaning or 
effect of the [Atomic Energy] 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.
    Sections 820.50, .51 and .52 state:
    The General Counsel shall be * * * responsible for formulating 
and issuing any interpretation * * * [and] may utilize any procedure 
which he deems appropriate to comply with his responsibilities under 
this subpart. * * * 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 [Atomic Energy] Act, a Nuclear Statute, 
or a DOE Nuclear Safety Requirement.
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B. Questions and Responses

    1. Is the scope of either Part 830 or Part 835 limited to those 
facilities or activities involving byproduct, source, or special 
nuclear materials, as defined in the Atomic Energy Act?
    No, neither Part 830 nor 835 is limited to activities or facilities 
involving byproduct, source, or special nuclear material. The 
requirements in Parts 830 and 835 cover all activities under DOE's 
auspices with the potential to cause radiological harm. These rules are 
promulgated pursuant to section 161 of the Atomic Energy Act of 1954, 
as amended (AEA). Section 161b. of the AEA authorizes the Department to 
promulgate rules ``to govern the possession and use of special nuclear 
material, source material, and byproduct material'' and section 161i. 
authorizes the Department to prescribe such regulations as it deems 
necessary to govern any activity authorized pursuant to the AEA, 
specifically including standards for the protection of health and 
minimization of danger to life or property.
    Although most sources of ionizing radiation are encompassed by the 
terms ``byproduct material,'' ``source material'' and ``special nuclear 
material,'' some sources, such as machine-produced radioactive 
material, are not. Because all ionizing radiation has the potential to 
cause harm, the Department did not limit the application of the nuclear 
safety requirements in Parts 830 and 835 

[[Page 4210]]
to situations involving byproduct, source and special nuclear material.
    Part 830 covers activities at facilities even where no nuclear 
material is present such as facilities that prepare the nonnuclear 
components of nuclear weapons, but which could cause radiological 
damage at a later time. 10 CFR 830.3(a)(6).
    2. Do Parts 830 and 835 apply to Government employees in general 
and to the Department's Government-owned, Government-operated 
facilities specifically?
    Part 830. Part 830.1 states that it governs the conduct of the 
Department's ``management and operating contractors and other persons 
at DOE nuclear facilities.'' 2 Section 830.4(a) provides that no 
person shall take or cause to be taken any action inconsistent with 
Part 830 or any document implementing Part 830. The definition of 
``person'' in Part 830 excludes the Department, the Nuclear Regulatory 
Commission (NRC), as well as their employees when these employees are 
acting within the scope of their employment.3 Therefore, the 
requirements in Part 830 do not apply to DOE employees.4

    \2\ Section 830.1 states:
    This part governs the conduct of the Department of Energy (DOE) 
management and operating contractors and other persons at DOE 
nuclear facilities.
    \3\ Sections 830.3(a) and 835.2(a) state:
    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 the 
Department or the United States NRC. (emphasis added)
    The only government agencies and employees thereof excluded from 
this definition are the Department and the NRC.
    \4\ Section 830.4(b) states:
    With respect to a particular DOE nuclear facility, the 
contractor responsible for the design, construction, operation, or 
decommissioning of that facility shall be responsible for 
implementation of, and compliance with, the requirements of this 
part.
    Section 830.4(a) states:
    No person shall take or cause to be taken any action 
inconsistent with the requirements of this part or any program, 
plan, schedule, or other process established by this part.
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    The preamble to the final Part 830 rule explained that the 
Department rejected comments that Part 830 be expanded to include DOE 
employees. The Department found that equivalent requirements were 
imposed on its employees through DOE directives.5

    \5\ 59 FR 15845 (1994).
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    The requirements in Part 830 do not apply to the Department's 
Government-owned, Government-operated (GOGOs) facilities.6 While 
the definition of nuclear facility in Part 830 does not contain an 
explicit exclusion for facilities operated by the Department, Part 830 
only covers nuclear facilities operated and managed by a contractor. 
GOGOs are governed by the nuclear safety provisions contained in DOE 
directives.

    \6\ DOE is considering expanding the scope of 830 to cover GOGOs 
and has requested comments on this issue in its Notice of limited 
reopening of comment periods published on August 31, 1995, 60 FR 
45381.
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    Part 835. The requirements in Part 835 apply to DOE employees. The 
scope provision, section 835.1(a), does not limit its applicability to 
contractors.7 Moreover, the general rule provision of section 
835.3(a) explicitly provides that DOE personnel shall act consistently 
with the requirements of Part 835.8

    \7\ Section 835.1(a) states:
    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.
    \8\ Section 835.3(a) states:
    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. (emphasis added)
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    The requirements in Part 835 also apply to activities at the 
Department's Government-owned, Government-operated facilities. Unlike 
Part 830, the general rule provision of Part 835 explicitly provides 
that, where there is no contractor responsible for a DOE activity, the 
Department shall ensure the implementation of and compliance with the 
requirements of Part 835.9

    \9\ Section 835.3(c) states:
    Where there is no contractor for a DOE activity, DOE shall 
ensure implementation of and compliance with the requirements of 
this part.
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    3. Is the scope of either Part 830 or Part 835 limited to those 
facilities or activities subject to civil penalties?
    No, neither Part 830 nor 835 is not limited to those facilities or 
activities subject to civil penalties. The Department's authority to 
regulate its activities and those of its contractors derives from 
section 161 of the AEA. Section 161i. extends this authority to all 
activities undertaken by or for the Department pursuant to the AEA. The 
Price-Anderson Amendments Act of 1988 added section 234A to the Atomic 
Energy Act to provide the Department with authority to assess civil 
penalties for violations of rules, regulations or orders relating to 
nuclear safety by contractors and subcontractors who are indemnified by 
the Department pursuant to the Price-Anderson Act.10 Section 234A 
did not limit the Department's regulatory authority under the Atomic 
Energy Act to those situations where the Department can assess civil 
penalties (that is, situations where there is a Price-Anderson 
indemnity agreement). Nor does Part 820, 830, or 835 contain any 
provision that would limit the exercise of this authority to only those 
facilities or activities subject to civil penalties.

    \10\ Section 234A.a. states:
    Any person who has entered into an agreement of indemnification 
under subsection 170d. (or any subcontractor or supplier thereto) 
who violates (or whose employee violates) any applicable rule, 
regulation, or order related to nuclear safety prescribed or issued 
by the Secretary of Energy pursuant to this Act * * * shall be 
subject to a civil penalty. * * *
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    4. To what extent do Parts 830 and 835 apply to subcontractors and 
suppliers, and is applicability dependent upon indemnification under 
the Price-Anderson provisions of the Atomic Energy Act?
    Both Parts 830 and 835 apply to subcontractors and suppliers. As 
discussed in the response to question 3, there is no provision in the 
AEA or in 10 CFR Part 820, 830, or 835 that would limit the 
applicability of the requirements in Parts 830 and 835 to persons 
indemnified under the Price-Anderson provisions of the Atomic Energy 
Act.11 Both parts provide that ``no person shall take or cause to 
be taken any action inconsistent with the requirements of the[ese] 
Part[s] or any program, plan, schedule, or other process established by 
the[ese] Part[s].'' 12 As discussed in the response to question 2, 
the definition of ``person'' in Parts 830 and 835 covers all 
individuals and entities other than the Department, the Commission and 
their employees. Thus, Parts 830 and 835 and implementation plans 
adopted thereunder apply to all contractors, subcontractors, suppliers 
and their employees. Even a visitor to a facility is obligated to 
comply with applicable requirements in these rules.

    \11\ Section 11 of the Atomic Energy Act defines ``person 
indemnified'' as ``the person with whom an indemnity agreement is 
executed * * * and any other person who may be liable for public 
liability. * * *'' (emphasis added)
    \12\ Sections 830.4(a) and 835.3(a) are set forth in footnotes 4 
and 8, supra.
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    5. To what extent are activities performed on a DOE site subject to 
Parts 830 and 835 if they are regulated by the Nuclear Regulatory 
Commission (including activities certified by the NRC under section 
1701 of the Atomic Energy Act) or by a State under an agreement with 
the NRC?
    Both Parts 830 and 835 contain an explicit exclusion for activities 
regulated through a license by the Nuclear Regulatory Commission or a 
State under an Agreement with the 

[[Page 4211]]
NRC 13 (or certified by the NRC under section 1701 of the Atomic 
Energy Act).14 This exclusion is intended to prevent an activity 
from being subject to dual regulation under the Atomic Energy Act. The 
exclusion is not intended to permit activities to escape regulation and 
thus applies only to the portion of a facility or activity conducted 
pursuant to a NRC license or certification or state authorization 
derived from an agreement with the NRC.

    \13\ Section 274 of the Atomic Energy Act provides that the NRC 
can enter into an agreement with a State to permit the State to 
regulate byproduct, special nuclear, and source material in certain 
specified situations. To the extent the NRC exercises this provision 
to transfer authority to a State, the State is considered an 
``Agreement State.''
    \14\ Section 830.2 states:
    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.
    Section 835.1(b) states:
    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.
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    6. To what extent are DOE activities performed off a DOE site 
subject to Parts 830 and 835, and what is the effect if these 
activities are performed on a site regulated by the Nuclear Regulatory 
Commission or by an Agreement State?
    Part 830/Offsite Activities. Part 830 provides that it ``governs 
the conduct of the Department of Energy (DOE) management and operating 
contractors and other persons at DOE nuclear facilities.'' 10 CFR 830.1 
(emphasis added) Section 830.3 provides that a ``nuclear facility'' may 
be either a ``reactor'' or a ``nonreactor nuclear facility.'' 15 
``Nonreactor nuclear facility means those activities or operations that 
involve radioactive or fissionable material in such form and quantity 
that a nuclear hazard potentially exists to the employees or the 
general public.'' 16 Thus, nonreactor facility includes not just 
facilities but activities and operations. However, because Part 830 
applies only at a DOE nuclear facility, Part 830 applies only at DOE 
operations and activities and would not apply, for example, at a 
supplier's facility.17

    \15\ Section 830.3(a) states:
    Nuclear facility means reactor and nonreactor nuclear 
facilities.
    *        *        *        *        *
    Non-reactor nuclear facility means those activities or 
operations that involve radioactive and/or fissionable materials in 
such form and quantity that a nuclear hazard potentially exists to 
the employees or the general public. Incidental use and generating 
of radioactive materials in a facility operation (e.g., check and 
calibration sources, use of radioactive sources in research and 
experimental and analytical laboratory activities, electron 
microscopes, and X-ray machines) would not ordinarily require the 
facility to be included in this definition. Transportation of 
radioactive materials, accelerators and reactors and their 
operations are not included. The application of any rule to a 
nonreactor nuclear facility shall be applied using a graded 
approach. Included are activities or operations that:
    (1) Produce, process, or store radioactive liquid or solid 
waste, fissionable materials, or tritium;
    (2) Conduct separations operations;
    (3) Conduct irradiated materials inspections, fuel fabrication, 
decontamination, or recovery operations;
    (4) Conduct fuel enrichment operations;
    (5) Perform environmental remediation or waste management 
activities involving radioactive materials; or
    (6) Design, manufacture, or assemble items for use with 
radioactive materials and/or fissionable materials in such form or 
quantity that a nuclear hazard potentially exists.
    *        *        *        *        *
    Reactor means * * * the entire nuclear reactor facility, 
including the housing, equipment, and associated areas devoted to 
the operation and maintenance of one or more reactor cores. * * *
    \16\ 10 CFR Part 830.3(a). Neither the AEA nor Part 830 limits 
the meaning of radioactive or fissionable material. In the preamble 
to the final rule that adopted Part 830, the Department rejected 
comments that requested a threshold to exclude coverage of low 
hazard facilities and reaffirmed its intent to cover all facilities 
that involve radioactive material in such form and quantity that a 
nuclear hazard potentially exists. See comment 9 and the response 
thereto, 59 FR 15844 (1994). In the same preamble, the Department 
stated that the definition of hazard in Part 830 is intended to 
cover ``all situations with any potential to cause harm to people, 
facilities, or the environment.'' See comment 7 and the respose 
thereto, 59 FR 15488 (1994). We are considering limiting the scope 
of Part 830 to those nuclear facilities classified as category 3 or 
higher in DOE Standard 1027. See Notice of Limited Reopening of 
Comment Periods, 60 FR 45381, August 31, 1995.
    The only activities involving radioactive or fissionable 
materials not covered are those explicitly excluded by the 
definition of ``nonreactor nuclear facility,'' that is, activities 
that involve (1) transportation of radioactive material, (2) 
accelerators, or (3) the incidental use or generation of radioactive 
material associated with devices such as check and calibration 
sources, electron microscopes, and X-ray machines. While some 
activities at nuclear weapons facilities are excluded from coverage 
pursuant to section 830.2, these facilities are nonetheless nuclear 
facilities for purposes of section 830.3 and most activities at 
these facilities are covered by Part 830.
    \17\ DOE is considering expanding the scope of 830 to include 
those off-site activities that may affect the safe management of DOE 
sites and has requested comments on this issue in its Notice of 
Limited Reopening of Comment Periods published on August 31, 1995 in 
the Federal Register, 60 FR 45381.
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    Part 835/Offsite Activities. Part 835 is not limited to DOE 
activities at a DOE facility. Part 835 applies to the ``conduct of DOE 
activities.'' 18 ``DOE activities'' include ``an activity taken 
for or by the DOE that has the potential to result in * * * exposure * 
* * to radiation or radioactive material.'' 19 Thus, Part 835 
covers activities performed off a DOE site and would include, for 
example, an action taken for DOE by a supplier at the supplier's 
faciltiy.20

    \18\ See footnote 7.
    \19\ Section 835.2(a) states:
    DOE activities means an activity [sic] taken for or by the DOE 
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.
    \20\ The scope of Part 835 is also broader than 830 in that it 
does not exclude accelerators, transportation activities or 
incidental use of radioactive materials that are excluded from the 
definition of nonreactor nuclear facility in 830. See comment 11 and 
response thereto in the preamble to the final Part 835 rule, 59 FR 
15845 (1994).
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    Effect of NRC or State Licensing on Applicability of Parts 830 and 
835. DOE activities that are subject to Nuclear Regulatory Commission 
licensing or certification or to Agreement State regulation are 
excluded from regulation under Parts 830 and 835. See answer to 
Question 5 above. With respect to activities regulated by a State, this 
exclusion only applies to the extent the State is regulating pursuant 
to AEA authority derived through an Agreement with the NRC.
    7. To what extent do Parts 830 and 835 apply to activities 
performed under cooperative agreements, grants, and work-for-others?
    Parts 830 and 835 apply to activities undertaken pursuant to the 
Department's authority under the Atomic Energy Act, including 
arrangements involving activities under cooperative agreements, grants, 
and work-for-others pursuant to its authority under section 31 
(Research Assistance) and section 33 (Research For Others) of the AEA. 
Because neither Part 830 nor Part 835 contain any explicit exclusion of 
activities performed under work-for-others arrangements, cooperative 
agreements, or grants, the requirements in Parts 830 and 835 apply to 
such activities to the same extent the requirements apply to other 
activities undertaken pursuant to the Department's authority under the 
AEA.
    Section 31d. of the Atomic Energy Act provides that arrangements 
under that section (cooperative agreements and grants) ``shall contain 
such provisions (1) to protect health [and] (2) to minimize danger to 
life and property * * * as the [Department] may determine.'' Thus, the 
Department has discretion to exclude from a particular arrangement some 
or all of the requirements in Parts 830 and 835.
    Although the requirements of Parts 830 and 835 apply to 
arrangements other than contracts, civil penalty assessments are 
authorized only for a 

[[Page 4212]]
``person who may conduct activities under a contract with the 
Department of Energy * * *'' and any subcontractor or supplier thereto. 
Civil penalties are not authorized for activities conducted under a 
cooperative agreement, grant, or work-for-others arrangement, as 
distinguished from a contract. See Sections 234Aa. and 170d.(1)(A) of 
the AEA and the answer to question 8 below.
    8. May DOE assess civil penalties against persons other than 
contractors indemnified under the Price-Anderson provisions of the 
Atomic Energy Act?
    Civil penalties apply only to contractors who are indemnified under 
the Price-Anderson Act and any subcontractors and suppliers thereto.
    Section 234A of the AEA authorizes civil penalties assessment for 
contractors of the Department (or any subcontractor or supplier 
thereto) that have entered into a Price-Anderson indemnity agreement 
with the Department. Section 170d.(1)(A) of the AEA mandates a Price-
Anderson indemnity agreement between the Department and a contractor if 
activities by the contractor for the Department involve the risk of 
public liability.21 Section 11 of the Atomic Energy Act defines 
public liability as ``any legal liability arising out of or resulting 
from a nuclear incident'' and defines nuclear incident as ``any 
occurrence * * * causing [damage or injury] * * * arising out of or 
resulting from * * * source, special nuclear, or byproduct material.''

    \21\ Section 170d.(1)(A) states:
    [T]he Secretary shall * * * enter into agreements of 
indemnification * * * with any person who may conduct activities 
under a contract with the Department of Energy that involve the risk 
of public liability.* * *
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    Section 234A further limits civil penalties to situations where a 
contractor (or any subcontractor or supplier thereto) violates any 
applicable rule, regulation, or order of the Secretary of Energy 
relating to nuclear safety. 10 CFR Part 820 sets forth the procedural 
rules for DOE nuclear activities, including the procedures for 
assessing civil penalties. Part 820 defines nuclear safety requirement 
broadly to include all ``enforceable rules, regulations, or orders 
relating to nuclear safety adopted by DOE.* * *'' 22 Section 
820.20(b) limits the basis for assessment of civil penalties to 
violations of a DOE Nuclear Safety Requirement, i.e., one set forth in 
the Code of Federal Regulations, a Compliance Order under part 820, or 
a plan or program implementing those provisions.23 Thus, the 
requirements in Parts 830 and 835 form part of the set of nuclear 
safety requirements which, if violated, provide a basis for the 
assessment of civil penalties.

    \22\ Part 820.2(a) states:
    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 activity and includes any programs, plans, or other 
provisions intended to implement these rules, regulations, orders, a 
Nuclear Statute [that is, any statute or provision of a statute that 
relates to a DOE nuclear activity and for which DOE is responsible], 
the [Atomic Energy] Act, including 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 set forth in 10 CFR 
section 820.20(b). (emphasis added)
    \23\ Section 820.20(b) provides that the basis for the 
assessment of civil penalties is 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.
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    Therefore, only a Price-Anderson indemnified DOE contractor, and 
any subcontractor or supplier thereto, who violates a nuclear safety 
requirement of the type listed in section 820.20(b), may be assessed a 
civil penalty by the Department.
    9. Are there any indemnification provisions other than the Price-
Anderson provisions that apply to DOE facilities and activities and, if 
so, could such indemnification be used to invoke civil penalties for 
violations of Parts 830 and 835 or the applicability of the 
requirements in Parts 830 and 835?
    Although there are other indemnification provisions that could be 
applied to DOE facilities and activities, there are no other 
indemnification provisions that could be used to invoke civil penalties 
under section 234A of the AEA. Section 170d.(1)(B)(i)(I) of the Atomic 
Energy Act provides that agreements of indemnification under the Price-
Anderson provisions of that Act shall be the ``exclusive means of 
indemnification for public liability arising from activities'' 
conducted under a contract with the Department. This restriction on the 
Secretary's use of indemnity authority is directed to indemnification 
for public liability. With respect to situations involving liability 
other than public liability as defined in section 11 of the AEA,24 
other indemnification provisions (such as Public Law 85-804) may be 
available.

    \24\ See discussion in the answer to Question 8 above, regarding 
the definition of public liability.
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    As discussed in the response to question 8, civil penalties under 
section 234A may be assessed only with respect to contractors 
indemnified under the Price-Anderson provisions of the AEA. The 
requirements of Parts 830 and 835, however, may be applied to DOE 
facilities or activities whether or not such facilities or activities 
are covered by DOE indemnification. As discussed in the response to 
question 3, section 161 of the AEA is the authority for the 
requirements in Parts 830 and 835 and the exercise of this authority is 
not dependent on whether the Department provides an indemnification for 
liability resulting from the activities to which the requirements 
apply.
    10. What is the purpose of the exclusion in Parts 830 and 835 for 
activities conducted under the Nuclear Explosives and Weapons Safety 
Program relating to the prevention of accidental or unauthorized 
nuclear detonations and what activities are intended to be included 
within the scope of this exclusion?
    Parts 830 and 835 contain identical exclusions for ``[a]ctivities 
conducted under the Nuclear Explosives and Weapons Safety Program 
relating to the prevention of accidental or unauthorized nuclear 
detonations.'' 25 This exclusion is drafted narrowly to cover only 
those activities necessary to prevent an accidental or unauthorized 
nuclear detonations (that is, where the component parts of a nuclear 
weapon have been assembled in a manner such that a nuclear detonation 
could take place). The basis for this exclusion is the paramount 
importance of preventing accidental or unauthorized nuclear detonations 
and ensuring that the requirements in Parts 830 and 835 do not come 
into conflict with activities necessary to prevent any such detonation.

    \25\ Sections 830.2(c) and 835.1(b)(3).
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    However, these exclusions are not intended to relieve the person 
responsible for a DOE nuclear facility or a DOE activity from complying 
with the requirements in Parts 830 and 835 to the extent they do not 
interfere with the conduct of activities undertaken to prevent an 
accidental or unauthorized nuclear detonation. For example, under Part 
830, a contractor must develop and implement a Quality Assurance 
Program for a nuclear facility where nuclear weapons are or may be 
present. A provision within the Quality Assurance Program may be 
disregarded, however, to the extent it limits the conduct of an 
activity to prevent the detonation of a nuclear weapon. Under Part 835, 
for example, a contractor must implement and comply with the 
radiological posting requirements with respect to a 

[[Page 4213]]
DOE activity that involves or may involve nuclear weapons. These 
posting requirements may be disregarded, however, to the extent they 
limit the conduct of a particular activity to prevent the detonation of 
a nuclear weapon, such as moving the weapon to an area that is not 
posted correctly for the presence of a nuclear weapon.
    The Department, recognizes that the exclusion could be interpreted 
more broadly than intended and therefore may adopt a clarifying 
amendment to the exclusions stated in 10 CFR 830.2(c) and 
835.1(b)(3).26

    \26\ See Notice of Limited Reopening of Comment Periods, 60 FR 
45381, 45384 (1995) for a discussion of the weapons exclusion.
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Robert R. Nordhaus,
General Counsel.
[FR Doc. 96-2345 Filed 2-2-96; 8:45 am]
BILLING CODE 6450-01-P