Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Rules and Regulations 11839 

has questioned how United States origin 

meat or poultry products that are 

exported to a foreign country for 

processing prior to re-importation back 

to the United States should be labeled 

under the final COOL regulations. To 

the extent that existing CBP or FSIS 

regulations allow for products that have 

been minimally processed in a foreign 

country to reenter the United States as 

‘‘Product of the U.S.,’’ nothing in the 

AMS final rule precludes this practice. 

It should be noted, however, that FSIS 

meat and poultry product inspection 

regulations require country of origin 

statements on the immediate containers 

of imported products (9 CFR 327.14 and 

381.205). Therefore, if a U.S. country of 

origin meat or poultry product is 

transported to be minimally processed 

(e.g., marinated) in Canada prior to reimportation back to the United States, 

the immediate containers of the finished 

product would have to be labeled with 

the statement, ‘‘product of Canada.’’ 

Notwithstanding this requirement, FSIS 

regulations allow such product to be 

repackaged for sale at retail. If such 

product is repackaged for sale at retail, 

the retailer could provide labeling 

indicating that the product is of U.S. 

origin if the product otherwise meets 

the criteria in 7 CFR 65.260. 

Executive Order 12988 

This final rule has been reviewed 

under the Executive Order 12988, Civil 

Justice Reform. Under this final rule: (1) 

All State and local laws and regulations 

that are inconsistent with this rule will 

be preempted; (2) no retroactive effect 

will be given to this rule; and (3) no 

retroactive proceedings will be required 

before parties may file suit in court 

challenging this rule. 

Executive Order 12866 and the 

Regulatory Flexibility Act 

This final rule has been reviewed 

under Executive Order 12866. The rule 

has been determined to be not 

significant for the purposes of Executive 

Order 12866 and, therefore, has not 

been reviewed by the Office of 

Management and Budget (OMB). All 

costs and benefits associated with this 

rule are accounted for in AMS’ final rule 

economic analysis. 

Effect on Small Entities 

AMS’ final rule includes a final 

regulatory flexibility analysis. AMS 

believes that its regulations will have a 

significant economic impact on a 

substantial number of small entities. 

FSIS’ conforming regulations will not 

have any additional impact on small 

entities. 

Paperwork Reduction Act 

AMS’ final rule includes an estimate 

of the annual recordkeeping burden 

associated with COOL requirements. 

FSIS’ final rule has been reviewed 

under the Paperwork Reduction Act and 

imposes no additional paperwork or 

recordkeeping requirements. 

Government Paperwork Elimination 

Act (GPEA) 

FSIS is committed to compliance with 

the GPEA, which requires Government 

agencies, in general, to provide the 

public the option of communicating 

electronically with the government to 

the maximum extent possible. The 

Agency will ensure that all forms used 

by the establishments are made 

available electronically. 

Additional Public Notification 

Public awareness of all segments of 

rulemaking and policy development is 

important. Consequently, in an effort to 

ensure that minorities, women, and 

persons with disabilities are aware of 

this final rule, FSIS will announce it 

online through the FSIS Web page 

located at http://www.fsis.usda.gov/ 

Regulations_&_Policies/ 

2009_Interim_&_Final_Rules_Index/ 

index.asp. FSIS will also make copies of 

this Federal Register publication 

available through the FSIS Constituent 

Update, which is used to provide 

information regarding FSIS policies, 

procedures, regulations, Federal 

Register notices, FSIS public meetings, 

and other types of information that 

could affect or would be of interest to 

constituents and stakeholders. The 

Update is communicated via Listserv, a 

free electronic mail subscription service 

for industry, trade groups, consumer 

interest groups, health professionals, 

and other individuals who have asked 

to be included. The Update is also 

available on the FSIS Web page. 

Through the Listserv and Web page, 

FSIS is able to provide information to a 

much broader and more diverse 

audience. In addition, FSIS offers an email subscription service which 

provides automatic and customized 

access to selected food safety news and 

information. This service is available at 

http://www.fsis.usda.gov/ 

news_and_events/email_subscription/. 

Options range from recalls to export 

information to regulations, directives 

and notices. Customers can add or 

delete subscriptions themselves, and 

have the option to password protect 

their accounts. 

List of Subjects 

9 CFR Part 317 

Food labeling, Meat inspection. 

9 CFR Part 381 

Food labeling, Poultry and poultry 

products. 

■ For the reasons discussed in the 

preamble, FSIS adopts the interim rule 

published August 28, 2008 (73 FR 

50701) as final without change. 

Done in Washington, DC, on March 17, 

2009. 

Alfred V. Almanza, 

Administrator. 

[FR Doc. E9–6127 Filed 3–19–09; 8:45 am] 

BILLING CODE 3410–DM–P 

DEPARTMENT OF ENERGY 

10 CFR Part 820 

RIN 1990–AA30 

Procedural Rules for DOE Nuclear 

Activities 

AGENCY: Office of Health, Safety and 

Security, Department of Energy. 

ACTION: Final rule. 

SUMMARY: The Department of Energy 

(DOE) is today publishing a final rule to 

amend its Procedural Rules for DOE 

Nuclear Activities at Part 820 to be 

consistent with section 610 of the 

Energy Policy Act of 2005, Public Law 

109–58 (EPAct of 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 penalty 

assessments against certain DOE 

contractors, subcontractors and 

suppliers. Specifically, this final rule 

revises DOE regulations at section 

820.20 to be consistent with the changes 

under section 610 of the EPAct of 2005. 

DATES: Effective Date: This rulemaking 

is effective on April 20, 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: 

I. Background 

II. DOE’s Response to Comments 

III. Procedural Requirements 

A. Review Under Executive Order 12866 

11840 Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Rules and Regulations 

B. Review Under the Regulatory Flexibility 

Act 

C. Review Under the Paperwork Reduction 

Act 

D. Review Under the National 

Environmental Policy Act of 1969 

E. Review Under Executive Order 13132 

F. Review Under Executive Order 12988 

G. Review Under the Unfunded Mandates 

Reform Act of 1995 

H. Review Under the Treasury and General 

Government Appropriations Act, 1999 

I. Review Under the Treasury and General 

Government Appropriations Act, 2001 

J. Review Under Executive Order 13211 

K. Congressional Notification 

I. Background 

In 1988, Congress amended the 

Atomic Energy Act of 1954 (AEA) 

(codified at 42 U.S.C. 2011 et seq.) by 

adding section 234A. (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.) (commonly 

referred to as the Price-Anderson Act). 

The civil penalties govern 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 

established in section 820.20(d). 

On April 11, 2008, DOE published a 

notice of proposed rulemaking (NOPR) 

for the purpose of amending subpart B 

of Part 820 to incorporate the changes 

required by section 610 of the EPAct of 

2005, 73 FR 19761 (April 11, 2008). 

Section 610, entitled ‘‘Civil Penalties,’’ 

amended section 234A. of the AEA by: 

(1) Repealing the automatic remission 

of civil penalties for nonprofit 

educational institutions 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) Removing exemptions provided to 

seven institutions (including their 

subcontractors and suppliers) for 

activities at certain facilities by deleting 

existing subsection 234A.d. and 

replacing with 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 the EPAct of 

2005 included an effective date 

provision at subsection 234A.c. 

specifying that the amendments to 

section 234A. shall not apply to any 

violation of the AEA occurring under a 

contract entered into before the date of 

enactment of the EPAct of 2005, which 

was August 8, 2005. 

Accordingly, in the NOPR DOE 

proposed to amend section 820.20 by: 

(1) Limiting at paragraph (c) the 

exemption for seven institutions (and 

their subcontractors and suppliers) from 

civil penalties to violations occurring 

under contracts entered into before 

August 8, 2005; (2) limiting at paragraph 

(d) the automatic remission of civil 

penalties for nonprofit educational 

institutions to violations occurring 

under contracts entered into before 

August 8, 2005; (3) providing at new 

paragraph (e) that, for any violation 

occurring under a contract entered into 

on or after August 8, 2005, the total civil 

penalties paid 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) providing at 

new paragraph (f) the EPAct of 2005 

definition of a ‘‘not-for-profit.’’ In 

summary, for contracts entered into 

with 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 by DOE 

within the fiscal year in which the 

violation occurs. For contracts entered 

into with DOE prior to August 8, 2005, 

the existing 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 civil penalties for nonprofit 

educational institutions would remain 

unchanged. 

In section II of the NOPR, DOE 

provided a detailed discussion of the 

proposed modifications to section 

820.20. Specifically, DOE addressed the 

following topics to explain the 

operation of its proposed rule: (1) When 

a contract is ‘‘entered into’’ for purposes 

of section 820.20; (2) what 

subcontractors and suppliers are 

entitled to the exemption from civil 

penalties; (3) how DOE would 

determine the ‘‘1-year period’’ to 

calculate the limitation on civil 

penalties for not-for-profit entities; (4) 

how DOE would determine the ‘‘total 

amount of fees paid’’ to calculate the 

limitation on civil penalties for not-forprofit entities; (5) the repeal of the 

automatic remission of civil penalties 

for nonprofit educational institutions; 

and (6) how a ‘‘not-for-profit’’ contractor 

under section 610 of the EPAct of 2005 

is not considered the same as a 

nonprofit educational institution. 

II. DOE’s Response to Comments 

The following discussion describes 

the major issues raised in the three 

comments received on the proposed 

rule. The three commenters, private 

entities that currently operate DOE 

National Laboratories under 

Management and Operating (M&O) 

contracts, expressed concern with 

respect to the ‘‘entered into’’ date of a 

contract which determines when the 

amendments of section 610 of the EPAct 

of 2005 are applicable. After reviewing 

these comments, DOE has concluded 

that the rule should be finalized as 

proposed and without change. DOE’s 

response to these comments is fully 

explained below. 

As noted, DOE received comments 

regarding its interpretation of when a 

contract is ‘‘entered into’’ for purposes 

of section 610 of the EPAct of 2005. The 

interpretation of this phrase is 

significant in order to determine 

whether: (1) A contractor remains 

exempt from the payment of civil 

penalties; (2) a contractor remains 

entitled to receive an automatic 

remission of a civil penalty; or (3) a 

contractor is covered by the civil 

penalty cap provisions of section 610. 

The commenters offered various 

rationales for their respective positions 

on the ‘‘entered into’’ date. Two 

commenters wrote that when DOE 

extends a contract through an exercise 

Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Rules and Regulations 11841 

of its option to extend the term of a 

contract, it includes updated regulation 

clauses which contractually obligate the 

contractor to new standards and 

therefore effectively creates a ‘‘new’’ 

contract with a new ‘‘entered into’’ date. 

One commenter stated that for not-forprofit contractors that do not receive the 

automatic remission, the effective date 

of section 610 should be interpreted as 

the date when such not-for-profit 

contractors would be covered by the cap 

on civil penalties. Another commenter 

stated that it is not legally acceptable to 

define the term ‘‘entered into’’ as 

supporting a different legal result 

because one contract is extended with a 

pre-existing clause (option to extend the 

term of the contract) versus an extension 

exercised for the Government’s 

convenience (noncompetitive 

extension). This commenter further 

believed that DOE’s position was 

inconsistent with a prior Department 

position expressed in a January 3, 2008, 

letter, attached to its comments, which 

discussed a waiver of civil penalties for 

Price-Anderson Act violations 

(discussed further below). 

DOE generally disagrees with the 

commenters about whether there is a 

difference between a noncompetitive 

extension of an M&O contract and the 

exercise of an option to extend a 

contract. The exercise of an option to 

extend the term of the contract is a 

different action than the noncompetitive 

extension of a contract. In the first 

instance, the exercise of an option is 

based on the options clause contained 

in the original contract that sets out 

specific terms for the Government to 

exercise its option. Thus, as stated in 

the NOPR, if DOE exercises its option, 

the contract retains the same ‘‘entered 

into’’ date as the initially competed 

contract for the purpose of section 

820.20. 73 FR 19762. In the second 

instance, an extension of a contract 

pursuant to the applicable provisions of 

the FAR and DEAR addressing the 

extension of M&O contracts is not part 

of the original contract but is, in 

procurement terms, a new contract 

action. Consequently, the ‘‘entered into’’ 

date for a contract where DOE exercises 

an option is the date of the original 

contract, whereas the ‘‘entered into’’ 

date of a contract extended by DOE 

under applicable FAR and DEAR 

provisions is the date of the extension. 

A contract extended by an option to 

extend the term of the contract is treated 

differently from a contract that has been 

noncompetitively extended under the 

applicable provisions of the FAR and 

DEAR. A contract extended under the 

FAR and DEAR must be justified as by 

an exception to competition. (See DEAR 

section 917.602 which states that a 

‘‘management and operating contract 

may be awarded or extended at the 

completion of its term without 

providing for full and open competition 

only when award or extension is 

justified under one of the statutory 

authorities identified in 48 CFR section 

6.302 and only when authorized by the 

Secretary.’’) The justification for other 

than full and open competition is 

prepared and approved before extending 

the contract, thereby further establishing 

the effect of the extension as creating a 

new contract with a new ‘‘entered into’’ 

date. When an option to extend the term 

of a contract is exercised under an M&O 

contract under DEAR section 970.17, the 

contract is unilaterally extended by DOE 

and no justification for other than full 

and open competition is required. 

Therefore, no new contract is entered 

into. 

The fact that DOE may use the 

opportunity to update contract terms 

and conditions when it exercises an 

option to extend the term of an M&O 

contract is not dispositive on this issue. 

As previously explained, the key factor 

in determining whether the extension of 

an M&O contract constitutes a new 

award or contract is whether DOE is 

required to prepare a justification for 

other than full and open competition. 

One commenter stated that DOE’s 

proposed definition of ‘‘entered into’’ 

was inconsistent with the Department’s 

position in a January 3, 2008, letter, 

attached to its comments, which 

discussed the waiver of civil penalties 

for nuclear safety violations. In that 

letter, DOE indicated that civil penalties 

were waived because the violations 

occurred under a contract that was 

entered into in August 2003, prior to the 

enactment of the EPAct of 2005. DOE 

does not believe that the proposed 

definition of the ‘‘entered into’’ date is 

inconsistent with the Department’s 

position in that letter. The commenter, 

furthermore, is one of the seven exempt 

contractors under section 820.20(c). 

This commenter’s contract was 

extended before the effective date of the 

EPAct of 2005 and the civil penalties 

were issued for violations that occurred 

during the term subsequent to that 

extension. Therefore, DOE’s position 

that the contractor was exempt from 

civil penalty assessment is entirely 

consistent with the Department’s 

proposed definition of when a contract 

is ‘‘entered into’’ under section 610. 

Lastly, one commenter addressed the 

situation where a not-for-profit 

contractor may be under a contract 

entered into prior to August 8, 2005, but 

does not qualify for an exemption or the 

automatic remission of civil penalties, 

and would not be entitled to the civil 

penalty cap. This commenter stated that 

DOE’s proposed interpretation of the 

‘‘entered into’’ date is contrary to the 

intent of Congress in passing section 

610 of the EPAct of 2005 with regard to 

limiting civil penalties, and that the 

‘‘effective date of the Act should be the 

date when the penalties of not-forprofits are capped at their annual fee.’’ 

The commenter argued that there is no 

indication that Congress intended for 

such a gap where a not-for-profit 

contractor could pay civil penalties 

greater than the amount of its fee in any 

given year. 

DOE’s interpretation of the ‘‘entered 

into’’ date is consistent with the 

language and intent of Congress in 

enacting section 610. It is clear that 

Congress intended for a certain type of 

contractor to be eligible for the cap on 

civil penalties, as Congress expressly 

defined the term ‘‘not-for-profit’’ 

contractor, subcontractor or supplier. It 

is also clear that Congress intended for 

the system establishing a cap on civil 

penalties to apply only to violations 

occurring under contracts entered into 

after the effective date of section 610 

(August 8, 2005), and that for violations 

associated with contracts entered into 

before that date, the existing system of 

either exemption or automatic remission 

of penalties would continue to apply to 

those contractors previously granted 

such benefits. Under either system, a 

qualifying contractor would not be 

required to pay civil penalties that 

exceed any annual fee paid by DOE. 

In the NOPR, DOE noted that the 

definition of a not-for-profit contractor 

is not the same as the definition of a 

nonprofit educational institution. 73 FR 

19763. While this change in definition 

may create a situation where some 

contractors previously entitled to the 

automatic remission of civil penalties 

are now ineligible for a cap on civil 

penalties and, conversely, there may be 

some contractors that are eligible as notfor-profit contractors under the new law 

but are ineligible for the cap on civil 

penalties because they remain under a 

contract entered into prior to August 8, 

2005, DOE is required to establish these 

regulations in accordance with the 

Congressional language of section 610. 

Therefore, contracts entered into by notfor-profit contractors before the effective 

date of section 610 are not entitled to 

the cap on civil penalties established in 

section 610. 

Other than the above issues, there 

were no additional objections or adverse 

comments raised. For the reasons stated 

above, DOE’s final rule on section 

820.20, implementing section 610 of the 

11842 Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Rules and Regulations 

EPAct of 2005, is the same as set forth 

in the NOPR. 

III. 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 notice of final 

rulemaking was not subject to review by 

the Office of Information and Regulatory 

Affairs of the Office of Management and 

Budget (OMB) under Executive Order 

12866. 

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 

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 the General Counsel’s Web 

site: http://www.gc.doe.gov. DOE has 

reviewed today’s final rule under the 

provisions of the Regulatory Flexibility 

Act and the procedures and policies 

published on February 19, 2003. 

Today’s final rule amends DOE’s 

Procedural Rules for DOE Nuclear 

Activities to incorporate statutory 

changes made under the EPAct of 2005. 

The amendments to section 820.20 are 

changes required to conform DOE’s 

regulations to the new statutory 

provisions. The changes affect the seven 

institutions listed in AEA section 

234A.d., prior to the amendments under 

section 610 of the EPAct of 2005, 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. Based on 

the foregoing, DOE certifies that today’s 

final 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. Review Under the Paperwork 

Reduction Act 

No new information or recordkeeping 

requirements are imposed by this 

rulemaking. Accordingly, no OMB 

clearance is required under the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.). 

D. Review Under the National 

Environmental Policy Act of 1969 

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.). Specifically, this 

rule amends an existing regulation 

without changing the environmental 

effect of the regulation being amended, 

and, therefore, is covered under the 

Categorical Exclusion in paragraph A5 

to subpart D, 10 CFR part 1021. 

Accordingly, neither an environmental 

assessment nor an environmental 

impact statement is required. 

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 establish 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 final 

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 a Federal agency to perform a 

written 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, in the aggregate, or to the 

private sector, of $100 million or more 

in any one year (adjusted annually for 

inflation). 2 U.S.C. 1532(a) and (b). 

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, 

Federal Register / Vol. 74, No. 53 / Friday, March 20, 2009 / Rules and Regulations 11843 

local, and tribal governments. 2. U.S.C. 

1534. 

This final rule will not impose a 

Federal mandate on State, local and 

tribal governments or on the private 

sector. Accordingly, no assessment or 

analysis is required under the Unfunded 

Mandates Reform Act of 1995. 

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 

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. 

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 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 of 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 

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. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

report to Congress on the promulgation 

of this rule prior to its effective date. 

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. 

List of Subjects in 10 CFR Part 820 

Administrative practice and 

procedure, Government contracts, 

Penalties, Radiation protection. 

Issued in Washington, DC. 

Glenn S. Podonsky, 

Chief Health, Safety and Security Officer, 

Office of Health, Safety and Security. 

■ For the reasons stated in the preamble, 

DOE hereby amends Chapter III of title 

10 of the Code of Federal Regulations to 

read as follows: 

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: 

§ 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 

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 notfor-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. E9–6134 Filed 3–19–09; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 1 

[TD 9438] 

RIN 1545–BI50 

Guidance Regarding Foreign Base 

Company Sales Income; Correction 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Correction to final and 

temporary regulations. 

SUMMARY: This document contains 

corrections to final and temporary 

regulations that were published in the 

Federal Register on Monday, December 

29, 2008 (73 FR 79334) relating to 

foreign base company sales income. 

DATES: The corrections are effective July 

1, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Ethan Atticks, (202) 622–3840 (not a 

toll-free number).