[Federal Register Volume 74, Number 53 (Friday, March 20, 2009)]
[Rules and Regulations]
[Pages 11839-11843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6134]


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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.

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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

[[Page 11840]]

    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-for-
profit 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

[[Page 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-for-profit 
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-for-profits 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 not-for-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 not-for-
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

[[Page 11842]]

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,

[[Page 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.

0
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

0
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.


0
2. Section 820.20 is amended by revising paragraphs (c) and (d) and by 
adding new paragraphs (e) and (f) to read as follows:


Sec.  820.20  Purpose and scope.

* * * * *
    (c) Exemptions. With respect to a violation occurring under a 
contract entered into before August 8, 2005, the following contractors, 
and subcontractors and suppliers to that prime contract only, are 
exempt from the assessment of civil penalties under this subpart with 
respect to the activities specified below:
    (1) The University of Chicago for activities associated with 
Argonne National Laboratory;
    (2) The University of California for activities associated with Los 
Alamos National Laboratory, Lawrence Livermore National Laboratory, and 
Lawrence Berkeley National Laboratory;
    (3) American Telephone and Telegraph Company and its subsidiaries 
for activities associated with Sandia National Laboratories;
    (4) University Research Association, Inc. for activities associated 
with FERMI National Laboratory;
    (5) Princeton University for activities associated with Princeton 
Plasma Physics Laboratory;
    (6) The Associated Universities, Inc. for activities associated 
with the Brookhaven National Laboratory; and
    (7) Battelle Memorial Institute for activities associated with 
Pacific Northwest Laboratory.
    (d) Nonprofit educational institutions. With respect to a violation 
occurring under a contract entered into before August 8, 2005, any 
educational institution that is considered nonprofit under the United 
States Internal Revenue Code shall receive automatic remission of any 
civil penalty assessed under this part.
    (e) Limitation for not-for-profits. With respect to any violation 
occurring under a contract entered into on or after August 8, 2005, in 
the case of any not-for-profit contractor, subcontractor, or supplier, 
the total amount of civil penalties paid under this part may not exceed 
the total amount of fees paid by DOE to that entity within the U.S. 
Government fiscal year in which the violation occurs.
    (f) Not-for-profit. For purposes of this part, a ``not-for-profit'' 
contractor, subcontractor, or supplier is one for which no part of the 
net earnings of the contractor, subcontractor, or supplier inures to 
the benefit of any natural person or for-profit artificial person.

[FR Doc. E9-6134 Filed 3-19-09; 8:45 am]
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