Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Notices 52793 

[FR Doc. E9–24538 Filed 10–13–09; 8:45 am] 

BILLING CODE 6820–KF–C 

DEPARTMENT OF ENERGY 

Adjusted Indemnification Amount 

AGENCY: Department of Energy. 

ACTION: Notice of adjusted 

indemnification amount. 

SUMMARY: The Department of Energy 

(DOE) is announcing the adjusted 

amount of indemnification provided 

under subsection 170d. of the Atomic 

Energy Act of 1954 (AEA), 42 U.S.C. 

2210d., commonly known as the PriceAnderson Act, consistent with section 

607 of the Energy Policy Act of 2005, 

Public Law 109–58 (EPAct 2005). 

Section 607 (‘‘Inflation Adjustment’’) of 

EPAct 2005 amended subsection 170t. 

of the AEA by requiring the adjustment 

of the indemnification amount not less 

than once during each 5-year period 

following July 1, 2003, in accordance 

with the aggregate percentage change in 

the Consumer Price Index (CPI) since 

that date. This notice announces 

$11.961 billion as the inflation-adjusted 

amount based on the aggregate 

percentage change in the CPI during the 

initial 5-year period. 

DATES: This action is effective October 

14, 2009. 

FOR FURTHER INFORMATION CONTACT: John 

S. Boulden III, Acting Director (HS–40), 

Office of Enforcement, Office of Health, 

Safety and Security, U.S. Department of 

Energy, 19901 Germantown Road, 

Germantown, Maryland 20874, (301) 

903–2178; or Sophia Angelini, Attorney 

Advisor (GC–52), Office of the General 

Counsel, U.S. Department of Energy, 

1000 Independence Ave., SW., 

Washington, DC 20585, (202) 586–6975. 

SUPPLEMENTARY INFORMATION: 

The Price-Anderson Act, section 170 

of the AEA (42 U.S.C. 2210), establishes 

a system of financial protection for 

persons who may be liable for and 

persons who may be injured by a 

‘‘nuclear incident,’’ as defined at section 

11q. of the AEA (42 U.S.C. 2014q.). The 

Price-Anderson Act is administered by 

DOE with respect to the nuclear 

activities of DOE contractors acting on 

its behalf. Subsection 170d. provides 

that the Secretary of Energy shall enter 

into agreements of indemnification with 

any person who may conduct activities 

under a contract with DOE that involve 

the risk of public liability and that are 

not subject to the financial protection 

requirements of the Nuclear Regulatory 

Commission. DOE’s Price-Anderson Act 

indemnification contract provisions are 

codified in the Department of Energy 

Acquisition Regulation (DEAR), which 

sets forth a standard nuclear 

indemnification clause, the Nuclear 

Hazard Indemnity Agreement at 48 CFR 

952.250–70, that is incorporated into all 

DOE contracts and subcontracts 

involving source, special nuclear, or byproduct material. 

The Price-Anderson Amendments Act 

of 2005 (PAAA 2005), enacted as part of 

EPAct 2005, sections 601 through 610, 

altered the indemnity provisions in 

several ways. Specifically, the PAAA 

2005 altered the amount of the 

indemnification by: (1) Specifying $10 

billion as the amount of the 

indemnification for nuclear incidents 

within the United States resulting from 

contractual activities on behalf of DOE 

(section 604); (2) directing the 

adjustment of this indemnification 

amount not less than once during each 

five-year period in accordance with the 

aggregate percentage change in the CPI 

(section 607); and (3) increasing the 

indemnification amount for nuclear 

incidents outside the United States from 

$100 million to $500 million (section 

605). 

With regard to the inflation 

adjustment for indemnification, the 

AEA subsection 170t. was amended by 

adding a new provision requiring the 

adjustment of ‘‘the amount of 

indemnification provided under an 

agreement of indemnification under 

subsection d. not less than once during 

each 5-year period following July 1, 

2003, in accordance with the aggregate 

percentage change in the Consumer 

Price Index since—(A) that date, in the 

case of the first adjustment under this 

paragraph; or (B) the previous 

adjustment under this paragraph.’’ 

Under the AEA subsection 170t.(3), the 

term ‘‘Consumer Price Index’’ is defined 

to mean the CPI for all urban consumers 

published by the Secretary of Labor. The 

CPI in July 2003 was 183.9. In July 2008, 

the CPI was 219.964. This represents an 

increase of approximately 19.61%. 

Application of this increase to the initial 

$10 billion DOE indemnification 

amount results in an inflation-adjusted 

indemnification amount of $11.961 

billion. 

The inflation adjustment under AEA 

subsection 170t. applies only to a 

nuclear incident within the United 

States. Accordingly, the indemnification 

amount for a nuclear incident outside 

the United States continues to be $500 

million. 

The next inflation adjustment will be 

based on the incremental change in the 

CPI between July 1, 2008 and the date 

of the adjustment, which will be no later 

than July 1, 2013. 

This notice of indemnification 

inflation adjustment is a ‘‘rule’’ as 

defined in the Administrative Procedure 

Act (APA) (5 U.S.C. 551(4)). However, 

the APA (5 USC 553(b)(B)) does not 

require an agency to use the public 

notice and comment process ‘‘when the 

agency for good cause finds (and 

incorporates the finding and a brief 

statement of reasons therefore in the 

rules issued) that notice and public 

procedure thereon are impracticable, 

unnecessary, or contrary to the public 

interest.’’ In this instance, DOE has 

concluded that solicitation of public 

comment is unnecessary. Congress has 

required DOE to adjust the amount of 

indemnification provided under an 

agreement of indemnification under 

section 170d. to reflect inflation in the 

initial and each subsequent 5-year 

period following July 1, 2003, and 

provided no discretion regarding the 

substance of the adjustment process. 

DOE is required only to perform a 

ministerial computation to determine 

the relevant inflation adjustment. On 

the same basis, DOE finds good cause, 

pursuant to 5 USC 553(d)(3) to waive 

the requirement for a 30-day delay in 

the effective date for this rule. As such, 

this rule is effective October 14, 2009. 

DOE has determined that this notice 

of indemnification inflation adjustment 

is the type of action that does not 

individually or cumulatively have a 

significant impact on the human 

environment as set forth in DOE’s 

regulations implementing the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.). Specifically, the 

rule is covered under the categorical 

exclusion in paragraph A6 of Appendix 

A to subpart D, 10 CFR part 1021, which 

applies to rulemakings that are strictly 

procedural. Accordingly, neither an 

environmental assessment nor an 

environmental impact statement is 

required. 

Dated: Issued in Washington, DC, on 

September 22, 2009. 

Steven Chu, 

Secretary of Energy. 

[FR Doc. E9–24718 Filed 10–13–09; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF ENERGY 

Guidance on Energy-Efficiency 

Enforcement Regulations 

AGENCY: Office of the General Counsel, 

Department of Energy. 

ACTION: Notice. 

SUMMARY: This notice sets forth the 

Department of Energy’s (DOE’s) 

interpretation of its energy efficiency 

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52794 Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Notices 

enforcement regulations. These 

regulations provide for manufacturer 

submission of compliance statements 

and certification reports to DOE, 

maintenance of compliance records by 

manufacturers, and the availability of 

enforcement actions for improper 

certification or upon a determination of 

noncompliance. DOE also announces its 

intent to randomly select and review 

manufacturer compliance with these 

requirements and initiate enforcement 

actions as appropriate. 

DATES: This guidance is effective 

October 14, 2009. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Stephanie Weiner, Office of the General 

Counsel, U.S. Department of Energy, 

Forrestal Building, Room 6A–245, 1000 

Independence Ave., SW., Washington, 

DC 20585; Telephone (202) 586–9648. 

SUPPLEMENTARY INFORMATION: The 

Energy Policy and Conservation Act of 

1975, as amended, (EPCA or the ‘‘Act’’) 

authorizes the Department of Energy 

(DOE or the ‘‘Department’’) to enforce 

compliance with the energy 

conservation standards established for 

certain consumer products and 

commercial equipment. 42 U.S.C. 6299– 

6305 (consumer products), 6316 

(commercial and industrial equipment). 

To ensure that all covered products 

distributed in the United States comply 

with DOE’s energy conservation 

standards, the Department has 

promulgated enforcement regulations, 

which include specific certification and 

compliance requirements. See 10 CFR 

part 430, subpart F; 10 CFR part 431, 

subparts B, K, U, and V. 

The Department issues this guidance 

to make clear that under existing DOE 

regulations, a manufacturer’s failure to 

properly certify a covered product and 

retain records in accordance with DOE 

regulations may be subject to 

enforcement action, including the 

assessment of civil penalties. In 

addition, DOE announces its intent to 

exercise this enforcement authority 

more rigorously, beginning this fall, 

with a program to randomly select and 

review manufacturers’ compliance with 

these certification requirements. 

The Department’s rules require 

manufacturers of covered consumer 

products to ‘‘certify by means of a 

compliance statement and a certification 

report that each basic model(s) meets 

the applicable energy conservation 

standard,’’ before distributing it in 

commerce within the United States. 10 

CFR 430.62. Appendix A to Subpart F 

of Part 430 sets forth templates for these 

filings. For each basic model, the 

certification report must include certain 

identifying information, including the 

product type, product class, 

manufacturer’s name and model 

number, as well as a product-specific 

energy efficiency levels. Id. Section 

430.62(a)(4). The accompanying 

compliance report must certify that ‘‘the 

basic model(s) complies with the 

applicable energy conservation 

standard’’ and that ‘‘[a]ll required 

testing has been conducted in 

conformance’’ with applicable DOE test 

procedures. Id. Section 430.62(a)(3)(i)– 

(ii). Importantly, the manufacturer must 

also certify that all reported certification 

information is ‘‘true, accurate, and 

complete,’’ and that he or she is ‘‘aware 

of the penalties associated with 

violations of the Act, the regulations 

thereunder, and 18 U.S.C. 1001 which 

prohibits knowingly making false 

statements to the Federal Government.’’ 

Id. Section 430.62(a)(3)(iii)–(iv). 

In connection with these filings, the 

Department’s rules also require 

manufacturers to ‘‘establish, maintain, 

and retain the records of the underlying 

test data for all certification testing.’’ 10 

CFR 430.62(d). Further, the records 

must be ‘‘organized and indexed in a 

fashion which makes them readily 

accessible for review by DOE’’ and 

‘‘shall include the supporting test data 

associated with tests performed on any 

test units to satisfy’’ the certification 

and compliance requirements. Id. 

Under EPCA, the Secretary may take 

enforcement action for violations of 

these certification requirements. As 

relevant here, EPCA makes it unlawful 

‘‘for any manufacturer to fail to permit 

access to, or copying of, records 

required to be supplied under this part, 

or fail to make reports or provide other 

information required to be supplied 

under [the Act].’’ 42 U.S.C. 6302(a)(3). 

Implementing that provision, the 

Department’s rules prohibit both the 

‘‘[f]ailure to permit access to, or copying 

of records required to be supplied under 

the Act and this rule’’ and the ‘‘failure 

to make reports or provide information 

required to be supplied under this Act 

and this rule.’’ 10 CFR 430.61(a)(1). The 

Secretary may bring an injunctive action 

for the failure to properly certify 

covered products, 42 U.S.C. 6304, or 

may assess penalties for knowing 

violations of the certification reporting 

requirements, id. Section 6303(a). DOE’s 

rules establish that, for consumer 

products: 

If a basic model is not properly certified in 

accordance with the requirements of this 

subpart, the Secretary may seek, among other 

remedies, injunctive action to prohibit 

distribution in commerce of such basic 

model. 

10 CFR 430.71(b). 

To eliminate uncertainty among 

manufacturers subject to these 

requirements, the Department hereby 

provides its interpretation of the scope 

of these rules. Specifically, the 

Department clarifies that a failure to 

certify covered products in accordance 

with the DOE’s rules is an independent 

violation of EPCA and DOE’s 

implementing regulations that may be 

subject to enforcement action. The 

Department reads 42 U.S.C. 6302(a)(3) 

and 10 CFR 430.61(a)(1) to require not 

only that manufacturers make reports 

and provide the information required by 

the certification regulations, but also 

that such submissions be both accurate 

and provided in accordance with those 

regulations. A failure to do so is a 

prohibited act under EPCA and DOE 

rules and subject to enforcement action. 

A contrary reading would substantially 

undermine the purpose of the 

certification and compliance 

requirements in the first place—to 

ensure that all covered products 

distributed in commerce comply with 

applicable energy-efficiency standards 

and have been tested as prescribed by 

the rules. 

Under a plain reading of section 

430.71(b), moreover, improperly 

certifying a covered product is itself a 

violation subject to enforcement action. 

The Department need not test an 

improperly certified product or 

otherwise determine its noncompliance 

with the applicable standard before 

seeking an injunction or assessing civil 

penalties. Separate from these 

certification requirements, the 

Department’s rules also establish both 

the process for testing covered 

consumer products’ compliance, 10 CFR 

430.70, and the Department’s authority 

to take enforcement actions in the event 

that DOE determines that a covered 

product does not comply with an 

applicable standard, id. Sections 

430.71(a), 430.73. But those regulations 

do not restrict the Department from 

seeking injunctive relief or civil 

penalties for prohibited acts that are not 

dependent upon testing or a 

determination of noncompliance. See, 

e.g., id. Section 430.61(b) (allowing DOE 

to seek penalties for acts other than 

standards violations). Thus, the 

Department has the authority to initiate 

enforcement action for improper 

certification, separate from any 

determination of whether a covered 

product does or does not comply with 

the applicable energy-conservation 

standard. 

EPCA’s enforcement provisions 

likewise apply to covered commercial 

and industrial equipment. See 42 U.S.C. 

6316 (providing that the enforcement 

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Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Notices 52795 

1Additionally, the Department is developing a 

final rule to adopt similar certification and 

compliance regulations for the remaining types of 

covered commercial and industrial equipment 

covered by statute. See 64 FR 69598 (December 13, 

1999); 71 FR 25104 (April 28, 2006); 71 FR 42193 

(July 25, 2006); 71 FR 71341–42 (December 8, 2006). 

provisions for consumer products apply 

‘‘to the same extent and in the same 

manner’’ for covered commercial and 

industrial equipment). As with 

consumer products, the Department has 

promulgated certification and 

compliance regulations for certain 

equipment, including motors and 

transformers. See 10 CFR part 431, 

subparts B, K, U, and V; See, e.g., 10 

CFR 431.385(b) (‘‘If a basic model [of 

electric motor] is not properly certified 

in accordance with the requirements of 

this subpart, the Secretary may seek, 

among other remedies, injunctive action 

to prohibit distribution in commerce of 

such basic model.’’) 1 The Department 

interprets its certification regulations 

governing covered commercial and 

industrial equipment in the same way as 

its regulations governing consumer 

products. For the reasons set forth 

above, the failure to certify a covered 

piece of commercial or industrial 

equipment in accordance with DOE 

rules may be subject to enforcement 

action, including the imposition of civil 

penalties. 

Today, the Department also 

announces its intent to exercise its 

enforcement authority more rigorously 

in the future. In order for DOE’s 

efficiency standards to effectively 

promote the development and 

distribution of energy efficient products 

that will save energy and reduce costs 

for millions of Americans, DOE must 

ensure that these standards are 

aggressively and consistently enforced. 

Proper certification is a necessary 

prerequisite to achieving these goals. 

This fall, therefore, DOE will begin this 

effort by initiating a compliance review 

of certification reports for consumer 

products and commercial equipment 

covered by DOE regulations. Pursuant to 

its existing enforcement authority, the 

Department intends to randomly select 

previously filed certification reports for 

review, to request certification records 

from manufacturers as needed, and to 

hold manufacturers accountable for any 

failure to certify covered products in 

accordance with DOE rules. 

This guidance represents the 

Department’s interpretation of existing 

regulations and announcement of the 

agency’s general policy with respect to 

exercising its existing enforcement 

authority. It is not intended to create or 

remove any rights or duties, nor is it 

intended to affect any other aspect of 

EPCA or DOE regulations. 

Authority: 42 U.S.C. 6299–6305; 6316. 

Approval of the Office of the Secretary 

The Secretary of Energy has approved 

publication of this notice. 

Issued in Washington, DC, on October 7, 

2009. 

Scott Harris, 

General Counsel. 

[FR Doc. E9–24666 Filed 10–13–09; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF ENERGY 

Guidance on Ex Parte 

Communications 

AGENCY: Office of the General Counsel, 

Department of Energy (DOE). 

ACTION: Notice of guidance on ex parte 

communications. 

SUMMARY: The Department of Energy 

sets forth guidance on ex parte 

communications during informal 

rulemaking proceedings. The guidance 

is intended to encourage the public to 

provide DOE with all information 

necessary to develop rules that advance 

the public interest, while ensuring that 

rulemaking proceedings are not subject 

to improper influence from off-therecord communications. As President 

Obama stated in a January 21, 2009 

memorandum, ‘‘Executive departments 

and agencies should offer Americans 

increased opportunities to participate in 

policymaking and to provide their 

Government with the benefits of their 

collective expertise and information.’’ 

(74 FR 4685) DOE intends this guidance 

to provide both increased public 

participation in the rulemaking process 

and additional transparency during that 

process. 

DATES: This guidance on ex parte 

communications is effective on October 

14, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Daniel Cohen, Assistant General 

Counsel for Legislation and Regulatory 

Law, Office of the General Counsel, 

Department of Energy, 1000 

Independence Avenue, SW., 

Washington, DC 20585–0121, e-mail: 

expartecommunications@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: The 

following guidance, provided in the 

form of answers to ‘‘Frequently Asked 

Questions’’, is intended to encourage 

stakeholders to meet with, and provide 

information and advice to, DOE officials 

during the rulemaking process by 

setting forth simple and clear 

procedures governing meetings, or 

telephone or electronic contact, with 

DOE officials to discuss a pending 

rulemaking action. Informal stakeholder 

communications other than written 

comments on the proposed rule or 

presentations at a public hearing that 

occur during the public comment period 

are generally lawful under section 501 

of the Department of Energy 

Organization Act and the 

Administrative Procedure Act (5 U.S.C. 

553). Informal communications, 

however, must be disclosed properly to 

ensure fairness for all stakeholders, the 

integrity of the rulemaking process, and 

the adequacy of the record in support of 

the final rule. 

Frequently Asked Questions on Ex 

Parte Communications With DOE 

Employees 

(1) What is the purpose of DOE’s Ex 

Parte Guidance? 

The ex parte guidance governs the 

manner in which interested parties may 

communicate with DOE during its 

informal rulemaking proceedings, 

termed ‘‘permit-but disclose’’ 

proceedings for purposes of this 

guidance. It is designed to encourage 

additional public participation in the 

rulemaking process, while ensuring that 

all such participation is open and 

transparent. 

(2) What types of proceedings are 

considered ‘‘permit-but-disclose’’ 

proceedings? 

Permit-but-disclose proceedings are 

comprised of: (i) Proceedings in 

response to petitions for rulemaking; (ii) 

informal rulemaking proceedings upon 

release of an advanced notice of 

proposed rulemaking, a notice of public 

meeting or, if neither of those 

documents are utilized, the notice of 

proposed rulemaking; (iii) proceedings 

involving an interim final rule. 

(3) Does the ex parte guidance apply 

to me? 

The ex parte guidance applies to 

anyone who engages in the kind of 

communications covered by the 

guidance. 

(4) What types of communications are 

covered by the ex parte guidance? 

The guidance governs ex parte 

presentations to DOE decision makers 

during its ‘‘permit-but-disclose’’ 

proceedings. 

(5) What is an ex parte presentation? 

An ex parte presentation is a 

communication directed to the merits or 

outcome of a proceeding that, if written 

(including e-mail), is not provided to all 

interested parties or, if oral, is made 

without advance notice to all interested 

parties and without opportunity for 

such parties to be present. 

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