This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

52389 

Vol. 78, No. 164 

Friday, August 23, 2013 

DEPARTMENT OF ENERGY 

10 CFR Parts 708 and 710 

RIN 1992–AA36 

Hearing Officer and Administrative 

Judge 

AGENCY: Office of Hearings and Appeals, 

Department of Energy (DOE). 

ACTION: Final rule; technical 

amendments. 

SUMMARY: DOE is amending its 

regulations which set forth the 

procedures for processing complaints by 

employees of DOE contractors alleging 

retaliation by the employers for 

disclosure of certain information, for 

participation in congressional 

proceedings, or for refusal to participate 

in dangerous activities, and which set 

forth the procedures for resolving 

questions concerning eligibility for DOE 

authorization to access classified matter 

or special nuclear material by replacing 

the term ‘‘Hearing Officer’’ with 

‘‘Administrative Judge.’’ 

DATES: This rule is effective on August 

23, 2013. 

FOR FURTHER INFORMATION CONTACT: Poli 

A. Marmolejos, Director, Office of 

Hearings and Appeals, HG–1, 1000 

Independence Avenue SW, Washington, 

DC 20585; Poli.Marmolejos@hq.doe.gov; 

202–287–1566. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

Regulations at 10 CFR part 708 set 

forth the procedures for processing 

complaints by employees of DOE 

contractors alleging retaliation by their 

employers for disclosure of information 

concerning danger to public or worker 

health or safety, substantial violations of 

law, or gross mismanagement; for 

participation in congressional 

proceedings; or for refusal to participate 

in dangerous activities. Various DOE 

personnel are assigned specific duties in 

this process. Currently, whenever the 

parties fail to resolve complaints 

informally and the complainant requests 

a hearing under § 708.21, a ‘‘hearing 

officer’’ presides over an evidentiary 

administrative hearing. 

Regulations at 10 CFR part 710 set 

forth the criteria and procedures for 

resolving questions concerning 

eligibility for DOE access authorization 

(or security clearance). Various DOE 

personnel are assigned specific duties in 

this process. Currently, a ‘‘hearing 

officer’’ presides over an evidentiary 

administrative review hearing when an 

applicant for, or holder of, access 

authorization requests such a hearing 

under § 710.21. 

Personnel in other agencies of the 

Federal Government who perform 

identical or similar duties, both in the 

specific contexts of adverse employment 

actions and security clearance and in 

other areas, are commonly referred to as 

‘‘Administrative Judges.’’ 

To accurately recognize the 

adjudicative duties performed by DOE 

hearing officers under parts 708 and 

710, and for greater consistency with the 

title employed by other Federal agencies 

for positions that carry the same or 

essentially identical duties and 

responsibilities, this final rule replaces 

all references to the term ‘‘Hearing 

Officer,’’ in both parts, with the term 

‘‘Administrative Judge.’’ 

The regulatory amendments in this 

final rule do not alter substantive rights 

or obligations under current law. 

II. Procedural Requirements 

A. Review Under Executive Orders 

12866 and 13563 

It has been determined that this 

nomenclature change is not ‘‘a 

significant regulatory action,’’ as 

defined in Executive Order 12866, 

‘‘Regulatory Planning and Review,’’ 58 

FR 51735 (October 4, 1993). 

Accordingly, this action is not subject to 

review under Executive Order 12866 by 

the Office of Information and Regulatory 

Affairs of the Office of Management and 

Budget (OMB). 

DOE has also reviewed this regulation 

pursuant to Executive Order 13563 (76 

FR 3281 (Jan. 21, 2011)). Executive 

Order 13563 is supplemental to, and 

explicitly reaffirms the principles, 

structures, and definitions governing, 

the regulatory review established in 

Executive Order 12866. To the extent 

permitted by law, agencies are required 

by Executive Order 13563 to: (1) 

Propose or adopt a regulation only upon 

a reasoned determination that its 

benefits justify its costs (recognizing 

that some benefits and costs are difficult 

to quantify); (2) tailor regulations to 

impose the least burden on society, 

consistent with obtaining regulatory 

objectives, taking into account, among 

other things, and to the extent 

practicable, the costs of cumulative 

regulations; (3) select, in choosing 

among alternative regulatory 

approaches, those approaches that 

maximize net benefits (including 

potential economic, environmental, 

public health and safety, and other 

advantages; distributive impacts; and 

equity); (4) to the extent feasible, specify 

performance objectives, rather than 

specifying the behavior or manner of 

compliance that regulated entities must 

adopt; and (5) identify and assess 

available alternatives to direct 

regulation, including providing 

economic incentives to encourage the 

desired behavior, such as user fees or 

marketable permits, or providing 

information upon which choices can be 

made by the public. 

DOE emphasizes as well that 

Executive Order 13563 requires agencies 

to use the best available techniques to 

quantify anticipated present and future 

benefits and costs as accurately as 

possible. In its guidance, the Office of 

Information and Regulatory Affairs has 

emphasized that such techniques may 

include identifying changing future 

compliance costs that might result from 

technological innovation or anticipated 

behavioral changes. DOE believes that 

today’s rule is consistent with the 

principles of Executive Order 13563. 

B. Administrative Procedure Act 

The regulatory amendments in this 

notice of final rulemaking reflect a 

nomenclature change that relates solely 

to internal agency organization, 

management, and personnel. As such, 

pursuant to 5 U.S.C. 553(a)(2), this rule 

is not subject to the rulemaking 

requirements of the Administrative 

Procedure Act, including the 

requirements to provide prior notice 

and an opportunity for public comment 

and a 30-day delay in effective date. 


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52390 Federal Register / Vol. 78, No. 164 / Friday, August 23, 2013 / Rules and Regulations 

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. As this rule of 

agency organization, management, and 

personnel is not subject to the 

requirement to provide prior notice and 

an opportunity for public comment 

under 5 U.S.C. 553 or any other law, 

this rule is not subject to the analytical 

requirements of the Regulatory 

Flexibility Act. 

D. 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.). 

E. Review Under the National 

Environmental Policy Act 

DOE has concluded that promulgation 

of this rule will 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.). Specifically, this 

rule amends existing regulations 

without changing the environmental 

effect of the regulations being amended, 

and, therefore, is covered under the 

Categorical Exclusion in paragraph A5 

of Appendix A to subpart D, 10 CFR 

part 1021. Accordingly, neither an 

environmental assessment nor an 

environmental impact statement is 

required. 

F. 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 determined that this 

final rule 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. 

G. 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. 

H. 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. 

I. 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 

final rule will 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. 

J. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

The Treasury and General 

Government Appropriations Act, 2001 

(44 U.S.C. 3501, et seq.) requires that 

agencies review 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 this final rule under the OMB 

and DOE guidelines and has concluded 

that it is consistent with those 

guidelines. 

K. 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) of the 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 

should the proposal be implemented, 

and of reasonable alternatives to the 

action and their expected benefits on 

energy supply, distribution, and use. 

This final rule is not a significant energy 

action. Accordingly, DOE has not 

prepared a Statement of Energy Effects. 


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Federal Register / Vol. 78, No. 164 / Friday, August 23, 2013 / Rules and Regulations 52391 

1 78 FR 23162 (April 18, 2013). 

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. The 

report will state that it has been 

determined that the rule is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

M. Approval by the Office of the 

Secretary of Energy 

The Office of the Secretary of Energy 

has approved the issuance of this final 

rule. 

List of Subjects 

10 CFR Part 708 

Administrative practice and 

procedure, Government contracts, 

Whistleblowing. 

10 CFR Part 710 

Administrative practice and 

procedure, Classified information, 

Government contracts, Government 

employees, Nuclear materials. 

Issued in Washington, DC, on August 19, 

2013. 

Poli A. Marmolejos, 

Director, Office of Hearings and Appeals. 

For the reasons stated in the 

preamble, DOE amends parts 708 and 

710 of chapter III, title 10, Code of 

Federal Regulations, as set forth below: 

PART 708—DOE CONTRACTOR 

EMPLOYEE PROTECTION PROGRAM 

■ 1. The authority citation for part 708 

continues to read as follows: 

Authority: 42 U.S.C. 2201(b), 2201(c), 

2201(l), and 2201(p); 42 U.S.C. 5814 and 

5815; 42 U.S.C. 7251, 7254, 7255, and 7256; 

and 5 U.S.C. Appendix 3. 

§§ 708.2, 708.24, 708.25, 708.26, 708.27, 

708.28, 708.30, 708.31, and 708.32 

[Amended] 

■ 2. Sections 708.2 (definition); 

708.24(b); 708.25; 708.26; 708.27; 

708.28(b); 708.30; 708.31; and 708.32(a) 

and (c) are amended by removing the 

words ‘‘Hearing Officer’’ and adding in 

their place the words ‘‘Administrative 

Judge’’. 

PART 710—CRITERIA AND 

PROCEDURES FOR DETERMINING 

ELIGIBILTY FOR ACCESS TO 

CLASSIFIED MATTER OR SPECIAL 

NUCLEAR MATERIAL 

■ 3. The authority citation for part 710 

continues to read as follows: 

Authority: 42 U.S.C. 2165, 2201, 5815, 

7101, et seq., 7383h–l; 50 U.S.C. 2401 et seq.; 

E.O. 10450, 3 CFR 1949–1953 comp., p. 936, 

as amended; E.O. 10865, 3 CFR 1959–1963 

comp., p. 398, as amended, 3 CFR Chap. IV; 

E.O. 13526, 3 CFR 2010 Comp., pp. 298–327 

(or successor orders); E.O. 12968, 3 CFR 1995 

Comp., p. 391. 

§§ 710.5, 710.21, 710.22, 710.25, 710.26, 

710.27, 710.28, 710.29, 710.30, 710.32, 

710.34, and 710.35 [Amended] 

■ 4. Sections 710.5(a); 710.21(b)(3)(ii) 

and (6) through (8); 710.22(a)(1) through 

(3); 710.25 section heading and (b) 

through (f); 710.26(a) through (k), (l) 

introductory text, (l)(2)(ii), and (p); 

710.27; 710.28 section heading, (a)(1) 

and (4), (b) introductory text, (b)(3), and 

(c) introductory text; 710.29(i); 

710.30(b)(1) and (2); 710.32(a) and (b) 

introductory text; 710.34; and 710.35 are 

amended by removing the words 

‘‘Hearing Officer’’ and adding, in their 

place, the words ‘‘Administrative 

Judge’’. 

[FR Doc. 2013–20597 Filed 8–22–13; 8:45 am] 

BILLING CODE 6450–01–P 

FEDERAL RESERVE SYSTEM 

12 CFR Part 246 

[Regulation TT; Docket No. R–1457] 

RIN 7100–AD–95 

Supervision and Regulation 

Assessments for Bank Holding 

Companies and Savings and Loan 

Holding Companies With Total 

Consolidated Assets of $50 Billion or 

More and Nonbank Financial 

Companies Supervised by the Federal 

Reserve 

AGENCY: Board of Governors of the 

Federal Reserve System. 

ACTION: Final rule. 

SUMMARY: The Board of Governors of the 

Federal Reserve System (Board) is 

adopting a final rule to implement 

section 318 of the Dodd-Frank Wall 

Street Reform and Consumer Protection 

Act (Dodd-Frank Act). Section 318 

directs the Board to collect assessments, 

fees, or other charges equal to the total 

expenses the Board estimates are 

necessary or appropriate to carry out the 

supervisory and regulatory 

responsibilities of the Board for bank 

holding companies and savings and 

loan holding companies with total 

consolidated assets of $50 billion or 

more and nonbank financial companies 

designated for Board supervision by the 

Financial Stability Oversight Council. 

DATES: Effective date: The final rule is 

effective October 25, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Mark Greiner, Senior Supervisory 

Financial Analyst (202–452–5290), 

Nancy Perkins, Assistant Director (202– 

973–5006), or William Spaniel, Senior 

Associate Director (202–452–3469), 

Division of Banking Supervision and 

Regulation; Laurie Schaffer, Associate 

General Counsel (202–452–2272), or 

Michelle Moss Kidd, Attorney (202– 

736–5554), Legal Division; Board of 

Governors of the Federal Reserve 

System, 20th and C Streets NW., 

Washington, DC 20551. Users of 

Telecommunication Device for the Deaf 

(TTD) only, contact (202) 263–4869. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction 

II. Description of the Final Rule 

A. Key Definitions 

1. Assessed Companies 

2. Total Assessable Assets 

3. Assessment Periods 

4. Assessment Basis 

B. Apportioning the Assessment Basis to 

Assessed Companies 

1. Apportionment Based on Size 

2. Assessment Formula 

C. Collection Procedures 

1. Notice of Assessment and Appeal 

Procedure 

2. Collection of Assessments 

D. Revisions to the FR Y–7Q 

III. Administrative Law Matters 

A. Solicitation of Comments and Use of 

Plain Language 

B. Paperwork Reduction Act Analysis 

C. Regulatory Flexibility Act Analysis 

I. Introduction 

On April 18, 2013, the Board 

published in the Federal Register a 

notice of proposed rulemaking (the NPR 

or the proposal) seeking public 

comment on the Board’s proposal to 

implement section 318 of the DoddFrank Act.1 Section 318 directs the 

Board to collect assessments, fees, or 

other charges (assessments) from bank 

holding companies (BHCs) and savings 

and loan holding companies (SLHCs) 

with $50 billion or more in total 

consolidated assets, and from nonbank 

financial companies designated by the 

Financial Stability Oversight Council 

(Council) pursuant to section 113 of the 

Dodd-Frank Act for supervision by the 

Board (Board-supervised nonbank 

financial companies), (collectively, 

assessed companies), equal to the 

expenses the Board estimates are 

necessary or appropriate to carry out its 

supervision and regulation of those 

companies. The proposed rule outlined 

the Board’s assessment program, 

including how the Board would: (a) 

Determine which companies are 

assessed companies for each calendaryear assessment period, (b) estimate the 

total expenses that are necessary or 

appropriate to carry out the supervisory 

and regulatory responsibilities to be 


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