[Federal Register Volume 68, Number 106 (Tuesday, June 3, 2003)]
[Rules and Regulations]
[Pages 32955-32958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13858]



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  Federal Register / Vol. 68, No. 106 / Tuesday, June 3, 2003 / Rules 
and Regulations  

[[Page 32955]]



DEPARTMENT OF ENERGY

10 CFR Part 765

RIN 1901-AA88


Reimbursement for Costs of Remedial Action at Active Uranium and 
Thorium Processing Sites

AGENCY: Office of Environmental Management, Department of Energy.

ACTION: Final rule; Technical and administrative amendments.

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

SUMMARY: The Department of Energy (DOE) adopts several technical and 
administrative amendments to its procedural regulations governing the 
reimbursement of remedial action costs at active uranium and thorium 
processing sites. Since it was enacted in 1992, the original 
legislation authorizing the program has been amended four times to 
increase the amounts authorized for reimbursement and to make technical 
changes. Today's regulatory amendments reflect the legislative 
amendments and make other technical corrections that have been 
identified since the original rule was issued. None of the amendments 
raise substantive issues or represent changes in policy.

DATES: This rule will be effective July 3, 2003.

FOR FURTHER INFORMATION CONTACT: David E. Mathes, Office of 
Environmental Management, EM-30, U.S. Department of Energy, Germantown, 
Maryland 20874-1290. Telephone: (301) 903-7222. Internet: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Discussion

    The Secretary of Energy has approved today's technical and 
administrative regulatory amendments in order to conform 10 CFR part 
765 to legislative amendments to Title X of the Energy Policy Act of 
1992 (sections 1001-1004 of Pub. L. 102-486) and the need to make other 
corrections to the original rule published on May 23, 1994 (59 FR 
26714). Congress has amended the original legislation four times since 
it was enacted on October 24, 1992. In 1996, Public Law 104-259 amended 
Title X to increase the authorized reimbursement amounts for uranium 
and thorium licensees from $270 million and $40 million to $350 million 
and $65 million, respectively, for an aggregate authorized 
reimbursement amount of $415 million; and to increase the maximum 
amount that may be reimbursed to uranium licensees per dry short ton of 
Federal-related byproduct material from $5.50 to $6.25. In 1998, Public 
Law 105-388 further amended Title X to increase the authorized 
reimbursement amount for the thorium licensee from $65 million to $140 
million, for an aggregate authorized reimbursement amount to uranium 
and thorium licensees of $490 million. In 2000, Public Law 106-317 
amended Title X to change the date for determining the availability of 
excess funds for reimbursement to uranium licensees from July 31, 2005, 
to December 31, 2008; to change the date after which work must be 
completed in accordance with an approved plan for subsequent remedial 
action to be eligible for reimbursement from December 31, 2002, to 
December 31, 2007; and to eliminate the requirement for the Department 
to place certain reimbursement funds in escrow. In 2002, Public Law 
107-222 amended Title X to increase the authorized reimbursement amount 
for the thorium licensee from $140 million to $365 million, for an 
aggregate authorized reimbursement amount to uranium and thorium 
licensees of $715 million.
    Part 765 is amended in several places to reflect these statutory 
provisions. Other technical corrections to the original rule are 
discussed in the following paragraphs.
    Section 765.21(e) is revised to provide a licensee with an 
additional opportunity to provide reasonable documentation, as 
specified in Sec.  765.20, for claims or portions of claims that DOE 
has denied during the claim year. The revised rule now gives a licensee 
45 days after DOE issues a written decision to deny the claim, in which 
to provide the documentation for DOE reconsideration of the claim. If a 
licensee chooses not to submit the documentation, the licensee still 
has the right to file a formal appeal to the DOE's claim denial in 
accordance with Sec.  765.22. If a licensee chooses to submit the 
documentation, DOE will consider whether the documentation results in 
the DOE's reversal of its initial decision to deny the claim and will 
inform the licensee of the DOE's subsequent decision. A licensee may 
also appeal that decision in accordance with Sec.  765.22. By providing 
this additional opportunity to a licensee, DOE believes that both DOE 
and the licensee may save time and money by minimizing the number of 
appeals.
    Section 765.23 is amended to indicate the new address for obtaining 
copies of the DOE status report on the reimbursement program.
    Section 765.30(b) presents the procedure for submitting a plan for 
subsequent remedial action. The original rule indicated that licensees 
may submit this plan any time after January 1, 2000, but no later than 
December 31, 2001. Because Congress changed the date after which work 
must be completed in accordance with an approved plan for subsequent 
remedial action to be eligible for reimbursement from December 31, 
2002, to December 31, 2007, this final rule correspondingly changes the 
dates for submitting a plan to DOE to any time after January 1, 2005, 
but no later than December 31, 2006.
    Section 765.30(d) outlines the process for resubmitting a revised 
plan for subsequent remedial action if the original plan is rejected by 
DOE. The original rule indicated that a licensee may continue to submit 
revised plans for subsequent remedial action until DOE approves a plan, 
or September 30, 2002, whichever occurs first. This final rule changes 
the September 30, 2002, deadline to September 30, 2007, to correspond 
with the new statutory deadline for making reimbursements in accordance 
with a subsequent plan for remedial action.
    Section 765.30(e) presents the procedures for determining the 
maximum amounts for which licensees may be eligible for reimbursement 
for work performed as described in their plans for subsequent remedial 
action submitted to and approved by DOE. The original rule indicated 
that a licensee is

[[Page 32956]]

eligible for the lesser of two amounts: (1) The total cost of remedial 
action multiplied by the Federal reimbursement ratio; or (2) $5.50, as 
adjusted for inflation, multiplied by the number of Federal-related dry 
short tons of byproduct material. As drafted, the original rule could 
have been construed to apply the per dry short ton limit to both 
uranium and thorium licensees. Since Title X (42 U.S.C. Sec.  
2296a(b)(2)(A)) limits the applicability of the per dry short ton limit 
to uranium licensees, this final rule amends Sec.  765.30(e)(2) to 
clarify that the per dry short ton limit only applies to uranium 
licensees.
    In accordance with Sec.  765.30(b), because licensees' plans for 
subsequent remedial action are now due no later than December 31, 2006, 
this final rule amends Sec.  765.30(e)(2) to clarify that the potential 
additional reimbursement for which a licensee may be entitled will be 
adjusted after the approval of claims for work performed through 
December 31, 2007, to account for the actual approved costs of work 
performed through 2007.
    As originally prescribed, Sec.  765.31(a) outlined the procedures 
for designating specific amounts on deposit in the Uranium Enrichment 
Decontamination and Decommissioning Fund established at the United 
States Department of the Treasury for reimbursement of costs incurred 
in accordance with an approved plan for subsequent remedial action. The 
purpose of this paragraph was to implement the original requirement of 
Sec.  1001(b)(1)(B)(ii) of Pub. L. 102-486 that funds be placed in 
escrow not later than December 31, 2002, in accordance with an approved 
plan for subsequent remedial action. Because Pub. L. 106-317 amended 
the original legislation by striking the requirement to place funds in 
escrow, this final rule removes this paragraph and renumbers the 
subsequent paragraphs in this section.

II. Procedural Requirements

A. Review Under Executive Order 12866

    Today's regulatory action has been determined not to be ``a 
significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993). 
Accordingly, this action was not subject to review under that Executive 
Order by the Office of Information and Regulatory Affairs of the Office 
of Management and Budget (OMB).

B. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' (61 FR 4729, February 7, 1996) imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires Executive 
agencies to review regulations in light of applicable standards in 
section 3(a) and section 3(b) to determine whether they are met or it 
is unreasonable to meet one or more of them. DOE has completed the 
required review and determined that, to the extent permitted by law, 
this final rule meets the relevant standards of Executive Order 12988.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. There is no 
legal requirement to propose today's rule for public comment, and 
therefore, the Regulatory Flexibility Act does not apply to this 
rulemaking proceeding.

D. Review Under the Paperwork Reduction Act

    No new collection of information or recordkeeping requirements is 
imposed by this final rule. Accordingly, no clearance by OMB is 
required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

E. Review Under Executive Order 13132

    Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain 
requirements on agencies formulating and implementing policies or 
regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. DOE has examined today's rule and has 
determined that it does not preempt State law and does not have a 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by Executive Order 13132.

F. Review Under the National Environmental Policy Act

    Pursuant to the Council on Environmental Quality Regulations (40 
CFR parts 1500--1508), DOE has established guidelines for compliance 
with the provisions of the National Environmental Policy Act (NEPA) of 
1969 (42 U.S.C. 4321 et seq.). This rule makes technical corrections to 
procedures for the reimbursement of eligible remedial action costs 
incurred by licensees at active uranium and thorium processing sites. 
Implementation of this rule will not affect the legally required 
cleanup of the sites or result in any other environmental impacts. The 
Department has therefore determined that this rule is covered under the 
Categorical Exclusion found at paragraph A6 of Appendix A to subpart D, 
10 CFR part 1021, which applies to the establishment of procedural 
rulemakings such as procedures for the review and approval of 
applications for grants and cooperative agreements. Accordingly, 
neither an environmental assessment nor an environmental impact 
statement is required.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to assess the effects of Federal 
regulations on States, local, and tribal governments and the private 
sector. DOE has determined that today's regulatory action does not 
impose a Federal mandate on State, local, or tribal governments or on 
the private sector.

H. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress 
promulgation of the rule prior to its effective date. The report will 
state that it has been

[[Page 32957]]

determined that the rule is not a ``major rule'' as defined by 5 U.S.C. 
804(3).

List of Subjects in 10 CFR Part 765

    Radioactive materials, Reclamation, Reporting and record keeping 
requirements, Uranium.

    Issued in Washington, DC, on May 23, 2003.
Jessie Hill Roberson,
Assistant Secretary for Environmental Management.

0
For the reasons set forth in the preamble, part 765 of chapter III of 
title 10 of the Code of Federal Regulations is amended as set forth 
below.

PART 765--REIMBURSEMENT FOR COSTS OF REMEDIAL ACTION AT ACTIVE 
URANIUM AND THORIUM PROCESSING SITES

0
1. The authority citation for part 765 is revised to read as follows:

    Authority: 42 U.S.C. 2296a et seq.


0
2. In the table below, for each section indicated in the left column 
remove the language indicated in the middle column and add in its place 
the language indicated in the right column.

----------------------------------------------------------------------------------------------------------------
              Section                           Remove                                  Add
----------------------------------------------------------------------------------------------------------------
765.2(c)...........................  ``December 31, 2002''......  ``December 31, 2007''
765.2(e)...........................  ``$5.50''..................  ``$6.25''
765.2(f)...........................  ``$270 million''...........  ``$350 million''
765.2(g)...........................  ``$40 million''............  ``$365 million''
765.2(i)...........................  ``$310 million''...........  ``$715 million''
765.11(b)..........................  ``December 31, 2002''......  ``December 31, 2007''
765.11(c)(1).......................  ``$5.50''..................  ``$6.25''
765.11(c)(2).......................  ``$270 million''...........  ``$350 million''
765.11(c)(3).......................  ``$40 million''............  ``$365 million''
765.12(a)..........................  a. ``$5.50''...............  a. ``$6.25''
                                     b. ``$270 million''........  b. ``$350 million''
                                     c. ``$40 million''.........  c. ``$365 million''
                                     d. ``$310 million''........  d. ``$715 million''
765.12(c)..........................  ``$5.50''..................  ``$6.25''
765.23.............................  ``Uranium Mill Tailings      ``National Nuclear Security Administration
                                      Remedial Action Project      Service Center, Office of Technical Services,
                                      Office, 2155 Louisiana       Environmental Programs Department, P.O. Box
                                      NE., Suite 10000,            5400, Albuquerque, NM 87185-5400''
                                      Albuquerque, NM 87110''.
765.30(b)..........................  a. ``December 31, 2002''...  a. ``December 31, 2007''
                                     b. ``January 1, 2000''.....  b. ``January 1, 2005''
                                     c. ``December 31, 2001''...  c. ``December 31, 2006''
765.30(b)(2).......................  ``December 31, 2002''......  ``December 31, 2007''
765.30(d)..........................  a. ``September 30, 2002''..  a. ``September 30, 2007''
                                     b. ``December 31, 2002''...  b. ``December 31, 2007''
765.32(a)..........................  ``July 31, 2005''..........  ``December 31, 2008''
765.32(c)..........................  ``$5.50''..................  ``$6.25''
----------------------------------------------------------------------------------------------------------------


0
3. In Sec. 765.3, the definitions are amended by revising the 
introductory text and paragraph (2) of Maximum reimbursement amount or 
maximum reimbursement ceiling and Plan for subsequent remedial action 
to read as follows:


Sec.  765.3  Definitions.

* * * * *
    Maximum reimbursement amount or maximum reimbursement ceiling means 
the smaller of the following two quantities:
* * * * *
    (2) $6.25, as adjusted for inflation, multiplied by the number of 
Federal-related dry short tons of byproduct material.
* * * * *
    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.
* * * * *

0
4. In Sec. 765.21, paragraph (e) is revised to read as follows:


Sec.  765.21  Procedures for processing reimbursement claims.

* * * * *
    (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.
* * * * *
0
5. In Sec.  765.30, paragraph (e)(2) is revised to read as follows:


Sec.  765.30  Reimbursement of costs incurred in accordance with a plan 
for subsequent remedial action.

* * * * *
    (e) * * *
    (1) * * *
    (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

[[Page 32958]]

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.


Sec.  765.31  [Amended]

0
6. Section 765.31 is amended by removing paragraph (a) and 
redesignating paragraphs (b) through (d) as paragraphs (a) through (c).

[FR Doc. 03-13858 Filed 6-2-03; 8:45 am]
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