[Federal Register Volume 78, Number 219 (Wednesday, November 13, 2013)]
[Rules and Regulations]
[Pages 67925-67927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-27117]



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  Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / 
Rules and Regulations  

[[Page 67925]]



DEPARTMENT OF ENERGY

10 CFR Part 770

RIN 1901-AA82


Transfer of Real Property at Defense Nuclear Facilities for 
Economic Development

AGENCY: Department of Energy.

ACTION: Final rule.

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

SUMMARY: The Department of Energy (DOE) is adopting the interim final 
rule published on February 29, 2000, 65 FR 10685, as final, with 
changes. The final rule establishes a process for transferring unneeded 
real property at DOE defense nuclear facilities, for the purpose of 
promoting economic development, and prescribes the process by which the 
Secretary of Energy (or delegate) can grant discretionary 
indemnification.

DATES: Effective Date: This rule is effective on December 13, 2013.

FOR FURTHER INFORMATION CONTACT: Carmelo Melendez, Senior Real Property 
Officer, Office of Property Management, MA-65, 1000 Independence Avenue 
SW., Washington, DC 20585; [email protected]; 202-586-4502.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The Department of Energy (DOE) published an interim final rule and 
opportunity for public comment on February 29, 2000, 65 FR 10685, and 
DOE received comments on the rule. After the issuance of the rule, 
there were two separate legislative amendments to the underlying 
statutory authority, and one of the legislative amendments required 
revising the regulation. Today DOE is adopting the interim final rule 
as final, with revisions to conform with the legislative amendment, and 
to provide clarification.
    Section 3158 of the National Defense Authorization Act for Fiscal 
Year 1998, Public Law 105-85, directed the Department to prescribe 
regulations for the transfer, by sale or lease, of real property at DOE 
defense nuclear facilities for the purpose of permitting the economic 
development of the property (amended and redesignated at 50 U.S.C. 
2811). 50 U.S.C. 2811(b) also provides that the Secretary of Energy may 
hold harmless and indemnify a person or entity against any claim to 
person or property that results from the release or threatened release 
of a hazardous substance or pollutant or contaminant resulting from DOE 
activities at the former defense nuclear facility on which the real 
property is located.
    This final rule has been approved by the Office of the Secretary of 
Energy.

 II. Comments on the Interim Final Rule

    DOE invited public comment on the interim final rule, and received 
written comments from several interested organizations as well as 
individuals interested in the transfer of DOE real property at defense 
nuclear facilities for economic development. Most of the comments 
expressed support for the rule. A number of issues raised in the 
comments were resolved by the passage of statutory amendments that 
clarified that indemnification will apply to future transferees; these 
revisions are reflected in the revised regulation. DOE has adopted the 
comment to clarify that ``local government'' will be notified regarding 
any unneeded property. In appropriate circumstances, DOE will also 
notify Tribal nations regarding unneeded property.

III. Discussion of Amendments

    In today's final rule DOE is revising certain sections of the 
interim rule to reflect statutory amendments that were made after 
February 29, 2000. None of the regulatory changes in this notice of 
final rulemaking alter substantive rights or obligations under current 
law.
    Section 506 of the Consolidated Appropriations Resolution, 2003, 
Title V (Pub. L. 108-7) (February 20, 2003) amended section 3158, by 
clarifying that if indemnification is provided by DOE, such 
indemnification will also be provided to ``any successor, assignee, 
transferee, lender or lessee'' of the entity that initially acquires 
ownership or control. Accordingly, DOE added a new section 770.9(e) to 
clarify that any indemnification provided by DOE to an entity is 
transferable to a successor entity. Later legislation further clarified 
that the section 506 amendment was effective for any transfers as of, 
the date of the enactment of the National Defense Authorization Act for 
Fiscal Year 1998, which was November 18, 1997. (Section 504 of the 
Energy and Water Development Appropriation Act, 2004, Title V (Pub. L. 
108-137) (December 1, 2003)). No regulatory amendment is necessary for 
the legislative change under the Energy and Water Development 
Appropriation Act, 2004
    DOE added the phrase ``closed or downsized'' before the term 
``defense nuclear facilities'' in sections 770.1 and 770.2 to clarify 
that this rule applies only to unneeded real property assets. DOE added 
the phrase ``and for facilitating local reuse or redevelopment'' in 
section 770.2(b), to emphasize that the purpose of the transfers is to 
enable reuse or redevelopment of the transferred property.
    We revised the definitions in 770.4 to be consistent with 
terminology used in current DOE directives. We added language in 
section 770.5 to clarify that local governments will be advised 
regarding the availability of real property. In section 770.7 the 
revisions clarify the conditions regarding economic development and 
reuse of the DOE properties.

IV. 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 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

[[Page 67926]]

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 to 
ensure that the potential impacts of its draft rules on small entities 
are properly considered during the rulemaking process (68 FR 7990, 
February 19, 2003), and has made them available on the Office of 
General Counsel's Web site: http://www.gc.doe.gov.
    Today's final rule concerning the sale or lease of real property at 
defense nuclear facilities is not subject to the Regulatory Flexibility 
Act because neither the Administrative Procedure Act (5 U.S.C. 
553(a)(2)), nor any other law requires DOE to propose the rule for 
public comment. Consequently, this rulemaking is exempt from the 
requirements of the Regulatory Flexibility Act.

C. Review Under the Paperwork Reduction Act

    This final rule does not impose a collection of information 
requirement subject to the Paperwork Reduction Act (44 U.S.C. 3501 et 
seq.).

D. Review Under the National Environmental Policy Act

    DOE has concluded that promulgation of this rule falls into a class 
of actions that would not individually or cumulatively have a 
significant impact on the human environment, as determined by DOE's 
regulations implementing the National Environmental Policy Act of 1969. 
42 U.S.C. 4321 et seq. This interim final rule establishes procedures 
for real property transfers for economic development. Because the rule 
is procedural, it is covered by the Categorical Exclusion in paragraph 
A6 of Appendix A to Subpart D, 10 CFR part 1021. Accordingly, neither 
an environmental assessment nor an environmental impact statement is 
required. Individual proposals for the transfer of property are subject 
to appropriate NEPA review. 10 CFR 770.3(b).

E. Review Under 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. The Executive Order also requires agencies 
to have an accountable process to ensure meaningful and timely input by 
State and local officials in the development of regulatory policies 
that have federalism implications. On March 14, 2000, DOE published a 
statement of policy describing the intergovernmental consultation 
process it will follow in the development of such regulations (65 FR 
13735). 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 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 
Federal 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. 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.

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 a Federal 
regulatory action on State, 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. Review Under the 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 rule that may affect family well-being. 
This rule would not have any impact on the autonomy or integrity of the 
family as an institution. Accordingly, DOE has concluded that it is not 
necessary to prepare a Family Policymaking Assessment.

I. Review Under the 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 guideline 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. Review Under 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), Office of 
Management and Budget, 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

[[Page 67927]]

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 is not a significant energy action. 
Accordingly, DOE has not prepared a Statement of Energy Effects.

K. Applicability of Executive Order 13175

    Executive Order 13175, ``Consultation and Coordination with Indian 
Tribal Governments'' (65 FR 67249, Nov. 9, 2000) and implementing 
guidance from the Office of Management and Budget (M-10-33, July 30, 
2010) require consultation with tribal officials in the development of 
regulations in two particular circumstances. Specifically, consultation 
is required if a regulation imposes unfunded mandates on tribes or 
preempts tribal law. In such cases, when an agency submits a draft 
final regulation to OMB for review under Executive Order 12866, the 
agency must include a ``tribal summary impact statement'' in a 
``separately identified portion of the preamble to the regulation''. 
The OMB guidance further details the contents of the tribal summary 
impact statement. DOE has determined that this regulation neither 
imposes an unfunded mandate on tribes nor preempts tribal law. 
Therefore, tribal consultation was not conducted prior to issuance of 
the rule.

L. Congressional Notification

    As required by 5 U.S.C. 801, DOE will submit to Congress a report 
regarding the issuance of today's final rule prior to the effective 
date set forth at the outset of this notice. The report will state that 
it has been determined that the rule is not a ``major rule'' as defined 
by 5 U.S.C. 801(2).

List of Subjects in 10 CFR Part 770

    Federal buildings and facilities.

    Issued in Washington, DC on November 1, 2013.
Ingrid Kolb,
Director, Office of Management.

    For the reason set forth in the preamble, the interim rule which 
was published at 65 FR 10685 on February 29, 2000 is adopted as a final 
rule with the following changes:

PART 770--TRANSFER OF REAL PROPERTY AT DEFENSE NUCLEAR FACILITIES 
FOR ECONOMIC DEVELOPMENT

0
1. The authority citation for part 770 is revised to read as follows:

    Authority:  50 U.S.C. 2811.


Sec.  770.1  [Amended]

0
2. Section 770.1(a) is amended by adding ``closed or downsized'' after 
``real property at''.

0
3. Section 770.2 is amended by:
0
a. Adding, in paragraph (a), ``closed or downsized'' after ``sale or 
lease at''; and
0
b. Revising paragraph (b) to read as follows:


Sec.  770.2  What real property does this part cover?

* * * * *
    (b) DOE may transfer, by lease only, improvements at defense 
nuclear facilities on land withdrawn from the public domain, that are 
unneeded, temporarily underutilized, or underutilized, for the purpose 
of permitting economic development and for facilitating local reuse or 
redevelopment.

0
4. Section 770.4 is amended by:
0
a. Adding in the definition of ``Community Reuse Organization or CRO'', 
the words ``that is recognized by DOE and'' after ``non-governmental 
organization'', and removing ``and that has the authority to enter into 
and fufill the obligations of a DOE financial assistance agreement.''
0
b. Adding in the definition of ``Economic Development,'' the words ``or 
which furthers reuse or redevelopment,'' after ``surrounding 
region(s)'';
0
c. Removing the definition of ``Excess Real Property;''
0
d. Adding, in the definition of ``Underutilized Real Property or 
Temporarily Underutilized Real Property'' after the first sentence, 
``Underutilized property is available by lease only.''
0
e. Adding in alphabetical order the definition of ``Unneeded Real 
Property'' to read as follows:


Sec.  770.4  What definitions are used in this part?

* * * * *
    Unneeded 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 
for the purposes of conducting DOE business.


Sec.  770.5  [Amended]

0
5. Section 770.5(a) is amended by adding in the first sentence ``, 
local government,'' and ``Tribal nations,'' after ``Community Reuse 
Organizations''.

0
6. Section 770.7 is amended by:
0
a. Revising paragraphs (a)(1)(ii) and (iii);
0
b. Removing in paragraph (b) ``Within 90 days after receipt of a'' and 
adding ``After review of the'' in its place.
0
c. Removing paragraph (d).
    The revisions read as follows:


Sec.  770.7  What procedures are to be used to transfer real property 
at defense nuclear facilities for economic development?

    (a) * * *
    (1) * * *
    (ii) The intended use and duration of use of the real property, 
including potential users and an indication that these users are 
interested in participating in the economic development of the 
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) or what reuse or reutilization would be 
accomplished by means of a description of the business to be created 
(direct and indirect economic benefits that will result due to the 
proposed transfer);
* * * * *

0
7. Section 770.9 is amended by adding paragraph (e) to read as follows:


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?

* * * * *
    (e) Any indemnification provided will apply to any successor, 
assignee, transferee, lender or lessee of the original entity that 
acquires ownership or control.

[FR Doc. 2013-27117 Filed 11-12-13; 8:45 am]
BILLING CODE 6450-01-P