[Federal Register Volume 73, Number 71 (Friday, April 11, 2008)]
[Proposed Rules]
[Pages 19761-19766]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-7763]


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DEPARTMENT OF ENERGY

10 CFR Part 820

RIN 1990-AA30


Procedural Rules for DOE Nuclear Activities

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Energy (DOE) is proposing to amend its 
Procedural Rules for DOE Nuclear Activities to be consistent with 
section 610 of the Energy Policy Act of 2005, Public Law 109-58 (EPAct 
2005), signed into law by President Bush on August 8, 2005. Section 610 
amends provisions in section 234A. of the Atomic Energy Act of 1954 
(AEA) concerning civil penalties with respect to certain DOE 
contractors, subcontractors and suppliers. This proposed rule would 
revise DOE's regulations to be consistent with the changes made by 
section 610.

DATES: Public comments on this proposed rule will be accepted until May 
27, 2008.

ADDRESSES: You may submit comments, identified by RIN 1990-AA30, by any 
of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    E-mail: [email protected].
    Mail: Martha Thompson, Deputy Director, (HS-40), Office of 
Enforcement, Office of Health, Safety and Security, U.S. Department of 
Energy, 20300 Century Blvd., Germantown, Maryland 20874.
    You may obtain copies of comments received by DOE from the Office 
of Health, Safety and Security Web site: http://www.hss.energy.gov/Enforce/ or by contacting Martha Thompson of the Office of Enforcement.

FOR FURTHER INFORMATION CONTACT: Sophia Angelini, Attorney-Advisor (GC-
52), Office of the General Counsel, U.S. Department of Energy, 1000 
Independence Avenue, SW., Washington, DC 20585, (202) 586-6975; or 
Martha Thompson, Deputy Director (HS-40), Office of Enforcement, Office 
of Health, Safety and Security, U.S. Department of Energy, 20300 
Century Blvd., Germantown, Maryland 20874, (301) 903-5018 or by e-mail, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background
II. Discussion of the Proposed Rule
III. Public Comment Procedures
IV. Regulatory Review

I. Background

    In 1988, Congress amended the Atomic Energy Act of 1954 (AEA) (42 
U.S.C. 2011 et seq.) by adding section 234A. (commonly referred to as 
the Price-Anderson Act) (42 U.S.C. 2282a.) that establishes a system of 
civil penalties for DOE contractors, subcontractors, and suppliers that 
are covered by an indemnification agreement under section 170d. of the 
AEA (42 U.S.C. 2210d.). The civil penalties cover DOE contractors, 
subcontractors and suppliers that violate, or whose employees violate, 
any applicable rule, regulation or order related to nuclear safety 
issued by the Secretary of Energy. Section 234A. specifically exempted 
seven institutions (and any subcontractors or suppliers thereto) from 
such civil penalties and directed the Secretary of Energy to determine 
by rule whether nonprofit educational institutions should receive 
automatic remission of any penalty. On August 17, 1993, DOE promulgated 
``Procedural Rules for DOE Nuclear Activities,'' codified at 10 CFR 
Part 820 (Part 820), to provide for the enforcement under section 234A. 
of the AEA of DOE nuclear safety requirements. Under Part 820, the 
exemption provision for the seven institutions is set forth in section 
820.20(c); the provision for an automatic remission of civil penalties 
for ``nonprofit educational institutions'' is in section 820.20(d).
    DOE is proposing to amend subpart B of Part 820 to incorporate the 
changes required by section 610 of EPAct 2005. Section 610, entitled 
``Civil Penalties,'' amended section 234A. of the AEA by:
    (1) Repealing the automatic remission of civil penalties by 
striking the last sentence of subsection 234A.b.(2) which reads: ``In 
implementing this section, the Secretary shall determine by rule 
whether nonprofit educational institutions should receive automatic 
remission of any penalty under this section.'';
    (2) Deleting exemptions provided to seven institutions (including 
their subcontractors and suppliers) for activities at certain 
facilities by deleting existing subsection 234A.d. and substituting a 
new subsection 234A.d.(1) in which the total amount of civil penalties 
for violations under subsection 234A.a. of the AEA by any not-for-
profit contractor, subcontractor, or supplier may not exceed the total 
amount of fees paid within any 1-year period (as determined by the 
Secretary) under the contract; and
    (3) Adding a new section 234A.d.(2) that defines the term ``not-
for-profit'' to mean that ``no part of the net earnings of the 
contractor, subcontractor, or supplier inures to the benefit of any 
natural person or for-profit artificial person.''
    Finally, section 610 of EPAct 2005 included an effective date 
provision at subsection 234A.c., specifying that the amendments as to 
civil penalties under section 234A. shall not apply to any violation of 
the AEA occurring under a contract entered into before the date of 
enactment of EPAct 2005, which was August 8, 2005.

II. Discussion of the Proposed Rule

    Today's proposed rule would amend section 820.20 as follows:
    (1) It would revise paragraph (c) to limit the exemption for seven 
institutions (and their subcontractors and suppliers) from the civil 
penalty provisions of Part 820 to violations occurring under contracts 
entered into before the date of enactment of EPAct 2005;
    (2) It would revise paragraph (d) to limit the automatic remission 
of civil penalties for nonprofit educational institutions under Part 
820 to violations

[[Page 19762]]

occurring under contracts entered into before the date of enactment of 
EPAct 2005;
    (3) It would add a new paragraph (e) to provide that, with respect 
to any violation occurring under a contract entered into on or after 
the date of enactment of EPAct 2005, the total amount of civil 
penalties paid under Part 820 by any not-for-profit contractor, 
subcontractor, or supplier may not exceed the total amount of fees paid 
within the fiscal year in which the violation occurs; and
    (4) It would add a new paragraph (f) to provide that a not-for-
profit contractor, subcontractor, or supplier is one for which no part 
of the net earnings of the contractor, subcontractor, or supplier 
inures to the benefit of any natural person or for-profit artificial 
person.
    To summarize, for contracts entered into with the DOE on or after 
August 8, 2005, all contractors, subcontractors and suppliers would be 
subject to civil penalties for violations of nuclear safety 
regulations; however, not-for-profit contractors, subcontractors and 
suppliers could not be assessed any such penalties greater than the 
total amount of fees paid to them within the fiscal year in which the 
violation occurs. For contracts entered into with DOE prior to August 
8, 2005, the provisions of section 820.20 pertaining to the exemption 
from civil penalties for the seven institutions (including their 
subcontractors and suppliers) and the automatic remission of any civil 
penalties for nonprofit educational institutions would remain 
unchanged.
    DOE's proposed amendments to section 820.20 are intended to 
effectuate section 610 of EPAct 2005. The following aspects of today's 
proposal are discussed to facilitate a better understanding of the 
proposed amendments and their implementation.

1. When a Contract Is ``Entered Into'' for Purposes of Section 820.20

    In many cases, it is a simple matter to determine when a contract 
is entered into: this occurs when the contractor and the DOE 
contracting officer have both signed and executed the contract. 
Further, for purposes of section 820.20, DOE proposes to consider that 
contractual arrangements between the DOE contractor and its 
subcontractors and suppliers relate back to the date on which the 
contract was entered into between the prime contractor and DOE.
    In some cases, however, a contract may include an option for 
renewal of the contract beyond the base period or DOE may decide to 
extend the contract, raising a question as to when the contract is 
``entered into.'' In a case where a contract was competed with an 
option to renew, DOE proposes that, if it exercises its option, the 
contract retains the same ``entered into'' date as the initially 
competed contract for purposes of section 820.20. In a case where DOE 
decides to extend a contract pursuant to the applicable provisions of 
the Federal Acquisition Regulation and the Department of Energy 
Acquisition Regulation (such as a management and operating contract 
that does not contain a competitively awarded option clause), DOE 
proposes to consider the contract ``entered into'' as of the date of 
execution of the extended contract, not the initial contract, for 
purposes of section 820.20. Applying this definition of when a contract 
is ``entered into,'' the only institution of the seven institutions 
that is still exempted from civil penalties under section 234A. of the 
AEA is the University of California for operation of the Lawrence 
Berkeley National Laboratory. The University of California was awarded 
the contract to continue to operate the Lawrence Berkeley National 
Laboratory following a competition. The contract was entered into and 
performance of work under this new contract began on June 1, 2005.

2. What Subcontractors and Suppliers are Entitled to the Exemption From 
Civil Penalties

    Prior to the passage of EPAct 2005, each of seven institutions 
``and any subcontractors or suppliers thereto,'' even if they were for-
profit subcontractors or suppliers, were exempted from civil penalties 
under section 234A.d. of the AEA. In contrast, amended section 
234A.d.(1) provides a cap on civil penalties only ``in the case of any 
not-for-profit contractor, subcontractor, or supplier.'' In sum, under 
prior law any subcontractor or supplier entity associated with one of 
the seven institutions under contract to the Department was entitled to 
the exemption from civil penalties to the same extent as the 
institution for which it was a subcontractor or supplier. Under current 
law, each contractor, subcontractor, or supplier must itself qualify as 
a ``not-for-profit,'' as defined at section 234A.d.(2), in order to 
qualify for the limitation on civil penalties; the exemption from civil 
penalties continues to apply in the limited case of any subcontractor 
or supplier to one of the seven institutions (prime contractor) that 
currently is under a contract with DOE that was entered into before 
August 8, 2005.
    DOE considers that contractual arrangements between a DOE 
contractor and its subcontractors and suppliers relate back to the date 
on which the contract was ``entered into'' between the prime contractor 
and DOE. To further clarify, there are at present three potential 
categories of subcontractors and suppliers with entitlement, or lack of 
entitlement, to the exemption from civil penalties under the new 
statutory scheme as described herein.
    First, there are subcontractors and suppliers that retain the 
entitlement to the exemption from civil penalties for violations 
occurring under contracts with DOE entered into prior to August 8, 
2005, because they were under subcontract with one of the seven 
institutions at section 234A.d.(1) through (7) of the AEA before August 
8, 2005, and they remain under those same subcontracts. As noted above, 
there is only one of the seven institutions that has a contract with 
DOE that was entered into prior to August 8, 2005--the University of 
California for the operation of the Lawrence Berkeley National 
Laboratory. Accordingly, only subcontractors and suppliers of the 
University of California performing activities associated with the 
Lawrence Berkeley National Laboratory, even if they are for-profit 
entities, retain the entitlement to exemption from civil penalties 
while under this prime contract.
    Second, there are cases where subcontractors and suppliers entered 
into their subcontracts with one of the seven institutions before 
August 8, 2005, and, although one of the seven institutions is no 
longer the prime contractor, the subcontractor or supplier is 
continuing the same work under the same subcontract. In this case, DOE 
does not consider the subcontractor or supplier to be entitled to the 
exemption from civil penalties, as they are no longer under contract 
with one of the seven institutions named at section 234A.d.(1) through 
(7) of the AEA.
    The third category of subcontractors and suppliers are those that 
entered into subcontracts with a prime contractor to DOE on or after 
August 8, 2005. Those subcontractors and suppliers are not entitled to 
the exemption for civil penalties. They may be entitled to the cap or 
limitation on civil penalties under the new law if, and only if, they 
individually qualify as a ``not-for-profit'' institution as defined at 
section 234A.d.(2).

3. How DOE Would Determine the ``1-Year Period'' To Calculate the 
Limitation on Civil Penalties for Not-For-Profit Entities

    Section 610 of EPAct 2005 provides that, for violations of nuclear 
safety requirements occurring under a contract

[[Page 19763]]

entered into on or after August 8, 2005, any civil penalty assessed 
against a not-for-profit contractor, subcontractor, or supplier must be 
capped at the total amount of fees paid within any 1-year period (as 
determined by the Secretary of Energy) under the contract under which 
the violation occurs. There are several ways in which DOE could 
determine what constitutes the relevant ``1-year period.'' This could 
be interpreted as the fees paid in the 1-year period from the date of 
contract award, or the fees paid during the calendar year, or the fees 
paid during the fiscal year. DOE proposes, consistent with other DOE 
regulations (e.g., 10 CFR 851.5 (d)), to interpret ``the total amount 
of fees paid within any 1-year period'' as the total amount of fees 
paid by DOE to the ``not-for-profit'' entity in the U.S. Government 
fiscal year (i.e., October 1 through September 30) during which the 
violation(s) occurs for which a civil penalty is assessed.

4. How DOE Would Determine the ``Total Amount of Fees Paid'' To 
Calculate the Limitation on Civil Penalties for Not-For-Profit Entities

    There are different ways in which DOE could determine what 
constitutes the ``total amount of fees paid'' to a not-for-profit 
contractor within the 1-year period discussed in section 3. For 
example, the total fees paid under section 820.20(e) could be 
calculated exclusive of any civil penalties, reduction in fees, or 
subsequent adjustments to fee that might be imposed on the contractor 
under this or other regulations, such as those involving violations of 
DOE regulations relating to classified information security, codified 
at 10 CFR Part 824, or worker safety and health, codified at 10 CFR 
Part 851. Alternatively, the total fees paid could be calculated 
inclusive of any civil penalties, reduction in fees, or subsequent 
adjustments to fee, that might be imposed on the contractor under this 
or other regulations. In other words, DOE must determine whether the 
``total amount of fees paid'' should reflect the fee the contractor 
earns in the 1-year period based on its performance of the contract 
work scope with or without any penalties, reductions in fee, or 
subsequent adjustments to fee.
    Current DOE standard contract clauses that address fee reductions 
for non-compliance with applicable regulations (e.g., 48 CFR 952.204-
76, ``Conditional payment of fee or profit--safeguarding restricted 
data and other classified information'' and 48 CFR 952.223-77, 
``Conditional payment of fee or profit--protection of worker safety and 
health'') provide that ``[u]nder this clause, the total amount of fee 
or profit that is subject to reduction made in combination with any 
reduction made under any other clause in the contract that provides for 
a reduction to the fee or profit, shall not exceed the amount of fee or 
profit that is earned by the contractor in the period established 
pursuant to paragraph (b)(2)(I) of this clause [the paragraph dealing 
with performance periods].'' In effect, reductions assessed against a 
contractor's fee are treated cumulatively so that the total fee 
reductions taken in a performance period do not exceed the amount of 
fee which the contractor has earned during that period. This provision 
ensures that the not-for-profit contractor never faces a situation in 
which a fee reduction could exceed the actual amount of fee that it 
ultimately receives in a performance period. Although civil penalties 
are not assessed under a contract provision, DOE believes that they are 
conceptually similar to fee reductions and that it is appropriate to 
treat them in the same manner.
    A cumulative calculation is consistent with the intent of section 
610 of EPAct 2005 to limit civil penalties to a not-for-profit entity 
to the amount it earned under the contract for the performance period, 
such that the assets of the not-for-profit are not affected or depleted 
beyond the fee that it earns under the contract. Consistent with this 
Congressional intent and other DOE regulations, the Department proposes 
to calculate the ``total amount of fees paid'' to a not-for-profit 
entity based on a cumulative calculation that takes into account any 
reductions in fee, civil penalties (including civil penalties under 
this regulation), or subsequent adjustment to fees paid. In the case of 
any subsequent adjustments to fee (i.e., any adjustments to fee that 
are taken after the fee has been paid), DOE would reassess the penalty 
amount consistent with the subsequent change in the fee paid. This 
reassessment would be necessary to ensure that the not-for-profit 
entity does not pay more in civil penalties than the fee paid in a 1-
year performance period.

5. Repeal of the Automatic Remission of Civil Penalties

    Section 610 of EPAct 2005 includes a provision, entitled ``Repeal 
of Automatic Remission,'' that eliminates from section 234A.b.(2) of 
the AEA the sentence that directed the Secretary to determine by rule 
whether nonprofit educational institutions should receive automatic 
remission of any civil monetary penalty for violations of DOE nuclear 
safety regulations. DOE interprets this amendment as repealing DOE's 
authority to grant an automatic remission of any civil penalty payments 
for ``nonprofit educational institutions'' considered ``nonprofit'' 
under the United States Internal Revenue Code. In addition to the title 
of section 610(a), (``Repeal of Automatic Remission''), the amendments 
to section 234A. reveal a clear intent to repeal DOE's authority to 
grant automatic remission of civil penalties under this section. 
Congress removed the exemption for the seven institutions and, thus, 
subjected all contractors (including their subcontractors and 
suppliers) to civil penalties, and capped the total amount of civil 
penalties paid by any ``not-for-profit'' contractor at the total amount 
of fees paid within a 1-year period. Because automatic remission of 
civil penalties would be inconsistent with this amended statutory 
scheme, DOE interprets the amendment striking the last sentence in 
section 234A.b.(2) of the AEA to be a repeal of DOE's authority to 
provide automatic remission of civil penalties under the statute. 
Accordingly, DOE proposes to revise section 820.20 to eliminate the 
provision for automatic remission of civil penalties for contracts 
entered into on or after August 8, 2005.

6. A ``Not-For-Profit'' Contractor Under the Section 610 of EPAct 2005 
is not the Same as a ``Nonprofit Educational Institution''

    Section 610 of EPAct 2005 amends section 234A.d. of the AEA to 
define ``not-for-profit'' to mean that no part of the net earnings of 
the contractor, subcontractor, or supplier inures to the benefit of any 
natural person or for-profit artificial person. DOE proposes to adopt 
that definition in a new paragraph (f) of the amended section 820.20 
for violations occurring under contracts entered into on or after 
August 8, 2005. DOE notes that the definition of a ``not-for-profit'' 
contractor in EPAct 2005 is different from the definition of 
``nonprofit educational institutions'' in the current section 820.20(d) 
(i.e., any educational institution that is considered nonprofit under 
the United States Internal Revenue Code). Consequently, under today's 
proposed rule a contractor, subcontractor and supplier previously 
entitled to an automatic remission of civil penalties if qualified as a 
``nonprofit educational institution'' under section 820.20(d) may or 
may not qualify as a ``not-for-profit'' contractor, subcontractor or 
supplier for purposes of the limitation on civil penalties provision 
under the proposed section 820.20(f).

[[Page 19764]]

III. Public Comment Procedures

    Interested persons are invited to participate in this proceeding by 
submitting data, views, or arguments. Written comments should be 
submitted to the address, and in the form, indicated in the ADDRESSES 
section of this notice of proposed rulemaking. To help DOE review the 
comments, interested persons are asked to refer to specific proposed 
rule provisions, if possible.
    If you submit information that you believe to be exempt by law from 
public disclosure, you should submit one complete copy, as well as one 
copy from which the information claimed to be exempt by law from public 
disclosure has been deleted. DOE is responsible for the final 
determination with regard to disclosure or nondisclosure of the 
information and for treating it accordingly under the DOE Freedom of 
Information regulations at 10 CFR 1004.11.
    DOE has determined that this rulemaking does not raise the kinds of 
substantial issues or impacts that, pursuant to 42 U.S.C. 7191, would 
require DOE to provide an opportunity for oral presentation of views, 
data and arguments. Therefore, DOE has not scheduled a public hearing 
on these proposed amendments to Part 820.

IV. Regulatory Review

A. Executive Order 12866

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

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE has made its 
procedures and policies available on the Office of the General 
Counsel's Web site: http://www.gc.doe.gov.
    DOE has reviewed this proposed rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. The proposed rule would amend DOE's Procedural Rules 
for DOE Nuclear Activities to incorporate statutory changes made by 
EPAct 2005. The proposed amendments to section 820.20 are changes 
required to conform DOE's regulations to the new statutory provisions. 
The changes affect the seven institutions named in AEA section 234A.d. 
prior to amendment, which are not small entities, and their 
subcontractors and suppliers, which may or may not be small entities. 
While the amended Part 820 would expose small entities that are 
subcontractors and suppliers to potential liability for civil 
penalties, DOE does not expect that a substantial number of these 
entities will violate a DOE nuclear safety requirement, a DOE 
Compliance Order, or a DOE nuclear safety program, plan, or other 
provision, resulting in the imposition of a civil penalty. On the basis 
of the foregoing, DOE certifies that today's proposed rule would not 
have a significant economic impact on a substantial number of small 
entities. Accordingly, DOE has not prepared a regulatory flexibility 
analysis for this rulemaking. DOE's certification and supporting 
statement of factual basis will be provided to the Chief Counsel for 
Advocacy of the Small Business Administration pursuant to 5 U.S.C. 
605(b).

C. Paperwork Reduction Act

    This proposed rule would not impose new information or record 
keeping requirements. Accordingly, OMB clearance is not required under 
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

D. National Environmental Policy Act

    DOE has determined that this proposed rule is covered under the 
Categorical Exclusion in DOE's National Environmental Policy Act 
regulations at paragraph A.5 of Appendix A to Subpart D, 10 CFR Part 
1021, which applies to rulemaking that interprets or amends an existing 
rule or regulation without changing the environmental effect of the 
rule or regulation that is being amended. The proposed rule would amend 
DOE's regulations on civil penalties with respect to certain DOE 
contractors, subcontractors and suppliers in order to incorporate 
changes made to the AEA by section 610 of EPAct 2005. These proposed 
amendments are procedural and would not change the environmental effect 
of section 820.20. Accordingly, neither an environmental assessment nor 
an environmental impact statement is required.

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires Federal agencies to examine closely the impacts of regulatory 
actions on State, local, and tribal governments. Subsection 101(5) of 
title I of that law defines a Federal intergovernmental mandate to 
include any regulation that would impose upon State, local, or tribal 
governments an enforceable duty, except a condition of Federal 
assistance or a duty arising from participating in a voluntary federal 
program. Section 201 of title II of that law requires each Federal 
agency to assess the effects of Federal regulatory actions on State, 
local, and tribal governments, in the aggregate, or to the private 
sector, ``other than to the extent that such regulations incorporate 
requirements specifically set forth in law'' (2 U.S.C. 1531, emphasis 
added). Section 202 of that title requires a Federal agency to perform 
a detailed assessment of the anticipated costs and benefits of any rule 
that includes a Federal mandate which may result in costs to State, 
local, or tribal governments, or to the private sector, of $100 million 
or more (adjusted annually for inflation) in any 1 year (2 U.S.C. 
1532). Section 204 of that title requires each agency that proposes a 
rule containing a significant Federal intergovernmental mandate to 
develop an effective process for obtaining meaningful and timely input 
from elected officers of State, local, and tribal governments (2 U.S.C. 
1534).
    This proposed rule merely incorporates requirements specifically 
set forth in section 610 of EPAct 2005 and, thus, is exempt from the 
requirement to assess the effects of a Federal regulatory action on 
State, local, and tribal governments (2 U.S.C. 1531).

F. Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule that may affect family 
well being. While this proposed rule would apply to individuals who may 
be members of a family, the rule would not have any impact on the 
autonomy or integrity of the family as an institution. Accordingly, DOE 
has concluded that it

[[Page 19765]]

is not necessary to prepare a Family Policymaking Assessment.

G. Executive Order 13132

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

H. Executive Order 12988

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

I. Treasury and General Government Appropriations Act, 2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516 note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB. OMB's guidelines 
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines 
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed 
today's notice under the OMB and DOE guidelines and has concluded that 
it is consistent with applicable policies in those guidelines.

J. Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001) requires Federal agencies to prepare and submit to the 
Office of Information and Regulatory Affairs (OIRA) a Statement of 
Energy Effects for any proposed significant energy action. A 
``significant energy action'' is defined as any action by an agency 
that promulgated or is expected to lead to promulgation of a final 
rule, and that: (1) Is a significant regulatory action under Executive 
Order 12866, or any successor order; and (2) is likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy, or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use. Today's regulatory 
action has been determined to not be a significant regulatory action, 
and it would not have an adverse effect on the supply, distribution, or 
use of energy. Thus, today's action is not a significant energy action. 
Accordingly, DOE has not prepared a Statement of Energy Effects.

K. Approval of the Office of the Secretary

    The Secretary of Energy has approved the publication of this 
proposed rule.

List of Subjects in 10 CFR Part 820

    Administrative practice and procedure, Government contracts, 
Penalties, Radiation protection.

Glenn S. Podonsky,
 Chief Health, Safety and Security Officer, Office of Health, Safety 
and Security.

    For the reasons stated in the preamble, DOE hereby proposes to 
amend Chapter III of title 10 of the Code of Federal Regulations as set 
forth below:

PART 820--PROCEDURAL RULES FOR DOE NUCLEAR ACTIVITIES

    1. The authority citation for part 820 continues to read as 
follows:

    Authority: 42 U.S.C. 2201; 2282(a); 7191; 28 U.S.C. 2461 note; 
50 U.S.C. 2410.

    2. Section 820.20 is amended by revising paragraphs (c) and (d) and 
by adding new paragraphs (e) and (f) to read as follows:


Sec.  820.20  Purpose and scope.

* * * * *
    (c) Exemptions. With respect to a violation occurring under a 
contract entered into before August 8, 2005, the following contractors, 
and subcontractors and suppliers to that prime contract only, are 
exempt from the assessment of civil penalties under this subpart with 
respect to the activities specified below:
    (1) The University of Chicago for activities associated with 
Argonne National Laboratory;
    (2) The University of California for activities associated with Los 
Alamos National Laboratory, Lawrence Livermore National Laboratory, and 
Lawrence Berkeley National Laboratory;
    (3) American Telephone and Telegraph Company and its subsidiaries 
for activities associated with Sandia National Laboratories;
    (4) University Research Association, Inc. for activities associated 
with FERMI National Laboratory;
    (5) Princeton University for activities associated with Princeton 
Plasma Physics Laboratory;
    (6) The Associated Universities, Inc. for activities associated 
with the Brookhaven National Laboratory; and
    (7) Battelle Memorial Institute for activities associated with 
Pacific Northwest Laboratory.
    (d) Nonprofit educational institutions. With respect to a violation 
occurring under a contract entered into before August 8, 2005, any 
educational institution that is considered nonprofit under the United 
States Internal Revenue Code shall receive automatic

[[Page 19766]]

remission of any civil penalty assessed under this part.
    (e) Limitation for not-for-profits. With respect to any violation 
occurring under a contract entered into on or after August 8, 2005, in 
the case of any not-for-profit contractor, subcontractor, or supplier, 
the total amount of civil penalties paid under this part may not exceed 
the total amount of fees paid by DOE to that entity within the U.S. 
Government fiscal year in which the violation occurs.
    (f) Not-for-profit. For purposes of this part, a ``not-for-profit'' 
contractor, subcontractor, or supplier is one for which no part of the 
net earnings of the contractor, subcontractor, or supplier inures to 
the benefit of any natural person or for-profit artificial person.

 [FR Doc. E8-7763 Filed 4-10-08; 8:45 am]
BILLING CODE 6450-01-P