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Rules and Regulations Federal Register

67925 

Vol. 78, No. 219 

Wednesday, November 13, 2013 

DEPARTMENT OF ENERGY 

10 CFR Part 770 

RIN 1901–AA82 

Transfer of Real Property at Defense 

Nuclear Facilities for Economic 

Development 

AGENCY: Department of Energy. 

ACTION: Final rule. 

SUMMARY: The Department of Energy 

(DOE) is adopting the interim final rule 

published on February 29, 2000, 65 FR 

10685, as final, with changes. The final 

rule establishes a process for 

transferring unneeded real property at 

DOE defense nuclear facilities, for the 

purpose of promoting economic 

development, and prescribes the process 

by which the Secretary of Energy (or 

delegate) can grant discretionary 

indemnification. 

DATES: Effective Date: This rule is 

effective on December 13, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Carmelo Melendez, Senior Real Property 

Officer, Office of Property Management, 

MA–65, 1000 Independence Avenue 

SW., Washington, DC 20585; 

Carmelo.Melendez@hq.doe.gov; 202– 

586–4502. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

The Department of Energy (DOE) 

published an interim final rule and 

opportunity for public comment on 

February 29, 2000, 65 FR 10685, and 

DOE received comments on the rule. 

After the issuance of the rule, there were 

two separate legislative amendments to 

the underlying statutory authority, and 

one of the legislative amendments 

required revising the regulation. Today 

DOE is adopting the interim final rule 

as final, with revisions to conform with 

the legislative amendment, and to 

provide clarification. 

Section 3158 of the National Defense 

Authorization Act for Fiscal Year 1998, 

Public Law 105–85, directed the 

Department to prescribe regulations for 

the transfer, by sale or lease, of real 

property at DOE defense nuclear 

facilities for the purpose of permitting 

the economic development of the 

property (amended and redesignated at 

50 U.S.C. 2811). 50 U.S.C. 2811(b) also 

provides that the Secretary of Energy 

may hold harmless and indemnify a 

person or entity against any claim to 

person or property that results from the 

release or threatened release of a 

hazardous substance or pollutant or 

contaminant resulting from DOE 

activities at the former defense nuclear 

facility on which the real property is 

located. 

This final rule has been approved by 

the Office of the Secretary of Energy. 

II. Comments on the Interim Final Rule 

DOE invited public comment on the 

interim final rule, and received written 

comments from several interested 

organizations as well as individuals 

interested in the transfer of DOE real 

property at defense nuclear facilities for 

economic development. Most of the 

comments expressed support for the 

rule. A number of issues raised in the 

comments were resolved by the passage 

of statutory amendments that clarified 

that indemnification will apply to future 

transferees; these revisions are reflected 

in the revised regulation. DOE has 

adopted the comment to clarify that 

‘‘local government’’ will be notified 

regarding any unneeded property. In 

appropriate circumstances, DOE will 

also notify Tribal nations regarding 

unneeded property. 

III. Discussion of Amendments 

In today’s final rule DOE is revising 

certain sections of the interim rule to 

reflect statutory amendments that were 

made after February 29, 2000. None of 

the regulatory changes in this notice of 

final rulemaking alter substantive rights 

or obligations under current law. 

Section 506 of the Consolidated 

Appropriations Resolution, 2003, Title 

V (Pub. L. 108–7) (February 20, 2003) 

amended section 3158, by clarifying that 

if indemnification is provided by DOE, 

such indemnification will also be 

provided to ‘‘any successor, assignee, 

transferee, lender or lessee’’ of the entity 

that initially acquires ownership or 

control. Accordingly, DOE added a new 

section 770.9(e) to clarify that any 

indemnification provided by DOE to an 

entity is transferable to a successor 

entity. Later legislation further clarified 

that the section 506 amendment was 

effective for any transfers as of, the date 

of the enactment of the National Defense 

Authorization Act for Fiscal Year 1998, 

which was November 18, 1997. (Section 

504 of the Energy and Water 

Development Appropriation Act, 2004, 

Title V (Pub. L. 108–137) (December 1, 

2003)). No regulatory amendment is 

necessary for the legislative change 

under the Energy and Water 

Development Appropriation Act, 2004 

DOE added the phrase ‘‘closed or 

downsized’’ before the term ‘‘defense 

nuclear facilities’’ in sections 770.1 and 

770.2 to clarify that this rule applies 

only to unneeded real property assets. 

DOE added the phrase ‘‘and for 

facilitating local reuse or 

redevelopment’’ in section 770.2(b), to 

emphasize that the purpose of the 

transfers is to enable reuse or 

redevelopment of the transferred 

property. 

We revised the definitions in 770.4 to 

be consistent with terminology used in 

current DOE directives. We added 

language in section 770.5 to clarify that 

local governments will be advised 

regarding the availability of real 

property. In section 770.7 the revisions 

clarify the conditions regarding 

economic development and reuse of the 

DOE properties. 

IV. Procedural Requirements 

A. Review Under Executive Order 12866 

Today’s regulatory action has been 

determined not to be ‘‘a significant 

regulatory action’’ under Executive 

Order 12866, ‘‘Regulatory Planning and 

Review,’’ 58 FR 51735 (October 4, 1993). 

Accordingly, this action was not subject 

to review under that Executive Order by 

the Office of Information and Regulatory 

Affairs of the Office of Management and 

Budget (OMB). 

B. Review Under the Regulatory 

Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires preparation 

of an initial regulatory flexibility 

analysis for any rule that by law must 

be proposed for public comment, unless 

the agency certifies that the rule, if 

promulgated, will not have a significant 

economic impact on a substantial 


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67926 Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations 

number of small entities. As required by 

Executive Order 13272, ‘‘Proper 

Consideration of Small Entities in 

Agency Rulemaking,’’ 67 FR 53461 

(August 16, 2002), DOE published 

procedures and policies to ensure that 

the potential impacts of its draft rules 

on small entities are properly 

considered during the rulemaking 

process (68 FR 7990, February 19, 2003), 

and has made them available on the 

Office of General Counsel’s Web site: 

http://www.gc.doe.gov. 

Today’s final rule concerning the sale 

or lease of real property at defense 

nuclear facilities is not subject to the 

Regulatory Flexibility Act because 

neither the Administrative Procedure 

Act (5 U.S.C. 553(a)(2)), nor any other 

law requires DOE to propose the rule for 

public comment. Consequently, this 

rulemaking is exempt from the 

requirements of the Regulatory 

Flexibility Act. 

C. Review Under the Paperwork 

Reduction Act 

This final rule does not impose a 

collection of information requirement 

subject to the Paperwork Reduction Act 

(44 U.S.C. 3501 et seq.). 

D. Review Under the National 

Environmental Policy Act 

DOE has concluded that promulgation 

of this rule falls into a class of actions 

that would not individually or 

cumulatively have a significant impact 

on the human environment, as 

determined by DOE’s regulations 

implementing the National 

Environmental Policy Act of 1969. 42 

U.S.C. 4321 et seq. This interim final 

rule establishes procedures for real 

property transfers for economic 

development. Because the rule is 

procedural, it is covered by the 

Categorical Exclusion in paragraph A6 

of Appendix A to Subpart D, 10 CFR 

part 1021. Accordingly, neither an 

environmental assessment nor an 

environmental impact statement is 

required. Individual proposals for the 

transfer of property are subject to 

appropriate NEPA review. 10 CFR 

770.3(b). 

E. Review Under Executive Order 13132 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255 (August 4, 1999) imposes 

certain requirements on agencies 

formulating and implementing policies 

or regulations that preempt State law or 

that have federalism implications. 

Agencies are required to examine the 

constitutional and statutory authority 

supporting any action that would limit 

the policymaking discretion of the 

States and carefully assess the necessity 

for such actions. The Executive Order 

also requires agencies to have an 

accountable process to ensure 

meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications. On March 14, 2000, DOE 

published a statement of policy 

describing the intergovernmental 

consultation process it will follow in the 

development of such regulations (65 FR 

13735). DOE has examined today’s rule 

and has determined that it does not 

preempt State law and does not have a 

substantial direct effect on the States, on 

the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. No further action 

is required by Executive Order 13132. 

F. Review Under Executive Order 12988 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform’’ (61 FR 4729, February 7, 1996), 

imposes on Federal agencies the general 

duty to adhere to the following 

requirements: (1) Eliminate drafting 

errors and ambiguity; (2) write 

regulations to minimize litigation; and 

(3) provide a clear legal standard for 

affected conduct rather than a general 

standard and promote simplification 

and burden reduction. Section 3(b) of 

Executive Order 12988 specifically 

requires that Executive agencies make 

every reasonable effort to ensure that the 

regulation: (1) Clearly specifies the 

preemptive effect, if any; (2) clearly 

specifies any effect on existing Federal 

law or regulation; (3) provides a clear 

legal standard for affected conduct 

while promoting simplification and 

burden reduction; (4) specifies the 

retroactive effect, if any; (5) adequately 

defines key terms; and (6) addresses 

other important issues affecting clarity 

and general draftsmanship under any 

guidelines issued by the Attorney 

General. Section 3(c) of Executive Order 

12988 requires Executive agencies to 

review regulations in light of applicable 

standards in section 3(a) and section 

3(b) to determine whether they are met 

or it is unreasonable to meet one or 

more of them. DOE has completed the 

required review and determined that, to 

the extent permitted by law; this final 

rule meets the relevant standards of 

Executive Order 12988. 

G. Review Under the Unfunded 

Mandates Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4) 

requires each Federal agency to assess 

the effects of a Federal regulatory action 

on State, local, and tribal governments, 

and the private sector. DOE has 

determined that today’s regulatory 

action does not impose a Federal 

mandate on State, local or tribal 

governments or on the private sector. 

H. Review Under the Treasury and 

General Government Appropriations 

Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. This 

rule would not have any impact on the 

autonomy or integrity of the family as 

an institution. Accordingly, DOE has 

concluded that it is not necessary to 

prepare a Family Policymaking 

Assessment. 

I. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

The Treasury and General 

Government Appropriations Act, 2001 

(44 U.S.C. 3516, note) provides for 

agencies to review most disseminations 

of information to the public under 

guidelines established by each agency 

pursuant to general guideline issued by 

OMB. OMB’s guidelines were published 

at 67 FR 8452 (February 22, 2002), and 

DOE’s guidelines were published at 67 

FR 62446 (October 7, 2002). DOE has 

reviewed today’s notice under the OMB 

and DOE guidelines and has concluded 

that it is consistent with applicable 

policies in those guidelines. 

J. Review Under Executive Order 13211 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ 66 FR 28355 (May 

22, 2001) requires Federal agencies to 

prepare and submit to the Office of 

Information and Regulatory Affairs 

(OIRA), Office of Management and 

Budget, a Statement of Energy Effects for 

any proposed significant energy action. 

A ‘‘significant energy action’’ is defined 

as any action by an agency that 

promulgated or is expected to lead to 

promulgation of a final rule, and that: 

(1) Is a significant regulatory action 

under Executive Order 12866, or any 

successor order; and (2) is likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy, or 

(3) is designated by the Administrator of 

OIRA as a significant energy action. For 

any proposed significant energy action, 

the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use 


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Federal Register / Vol. 78, No. 219 / Wednesday, November 13, 2013 / Rules and Regulations 67927 

should the proposal be implemented, 

and of reasonable alternatives to the 

action and their expected benefits on 

energy supply, distribution, and use. 

Today’s regulatory action is not a 

significant energy action. Accordingly, 

DOE has not prepared a Statement of 

Energy Effects. 

K. Applicability of Executive Order 

13175 

Executive Order 13175, ‘‘Consultation 

and Coordination with Indian Tribal 

Governments’’ (65 FR 67249, Nov. 9, 

2000) and implementing guidance from 

the Office of Management and Budget 

(M–10–33, July 30, 2010) require 

consultation with tribal officials in the 

development of regulations in two 

particular circumstances. Specifically, 

consultation is required if a regulation 

imposes unfunded mandates on tribes 

or preempts tribal law. In such cases, 

when an agency submits a draft final 

regulation to OMB for review under 

Executive Order 12866, the agency must 

include a ‘‘tribal summary impact 

statement’’ in a ‘‘separately identified 

portion of the preamble to the 

regulation’’. The OMB guidance further 

details the contents of the tribal 

summary impact statement. DOE has 

determined that this regulation neither 

imposes an unfunded mandate on tribes 

nor preempts tribal law. Therefore, 

tribal consultation was not conducted 

prior to issuance of the rule. 

L. Congressional Notification 

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

submit to Congress a report regarding 

the issuance of today’s final rule prior 

to the effective date set forth at the 

outset of this notice. The report will 

state that it has been determined that 

the rule is not a ‘‘major rule’’ as defined 

by 5 U.S.C. 801(2). 

List of Subjects in 10 CFR Part 770 

Federal buildings and facilities. 

Issued in Washington, DC on November 1, 

2013. 

Ingrid Kolb, 

Director, Office of Management. 

For the reason set forth in the 

preamble, the interim rule which was 

published at 65 FR 10685 on February 

29, 2000 is adopted as a final rule with 

the following changes: 

PART 770—TRANSFER OF REAL 

PROPERTY AT DEFENSE NUCLEAR 

FACILITIES FOR ECONOMIC 

DEVELOPMENT 

■ 1. The authority citation for part 770 

is revised to read as follows: 

Authority: 50 U.S.C. 2811. 

§ 770.1 [Amended] 

■ 2. Section 770.1(a) is amended by 

adding ‘‘closed or downsized’’ after 

‘‘real property at’’. 

■ 3. Section 770.2 is amended by: 

■ a. Adding, in paragraph (a), ‘‘closed or 

downsized’’ after ‘‘sale or lease at’’; and 

■ b. Revising paragraph (b) to read as 

follows: 

§ 770.2 What real property does this part 

cover? 

* * * * * 

(b) DOE may transfer, by lease only, 

improvements at defense nuclear 

facilities on land withdrawn from the 

public domain, that are unneeded, 

temporarily underutilized, or 

underutilized, for the purpose of 

permitting economic development and 

for facilitating local reuse or 

redevelopment. 

■ 4. Section 770.4 is amended by: 

■ a. Adding in the definition of 

‘‘Community Reuse Organization or 

CRO’’, the words ‘‘that is recognized by 

DOE and’’ after ‘‘non-governmental 

organization’’, and removing ‘‘and that 

has the authority to enter into and fufill 

the obligations of a DOE financial 

assistance agreement.’’ 

■ b. Adding in the definition of 

‘‘Economic Development,’’ the words 

‘‘or which furthers reuse or 

redevelopment,’’ after ‘‘surrounding 

region(s)’’; 

■ c. Removing the definition of ‘‘Excess 

Real Property;’’ 

■ d. Adding, in the definition of 

‘‘Underutilized Real Property or 

Temporarily Underutilized Real 

Property’’ after the first sentence, 

‘‘Underutilized property is available by 

lease only.’’ 

■ e. Adding in alphabetical order the 

definition of ‘‘Unneeded Real Property’’ 

to read as follows: 

§ 770.4 What definitions are used in this 

part? 

* * * * * 

Unneeded Real Property means any 

property under DOE control that the 

Field Office, cognizant program, or the 

Secretary of Energy have determined, 

according to applicable procedures, to 

be no longer needed for the purposes of 

conducting DOE business. 

§ 770.5 [Amended] 

■ 5. Section 770.5(a) is amended by 

adding in the first sentence ‘‘, local 

government,’’ and ‘‘Tribal nations,’’ 

after ‘‘Community Reuse 

Organizations’’. 

■ 6. Section 770.7 is amended by: 

■ a. Revising paragraphs (a)(1)(ii) and 

(iii); 

■ b. Removing in paragraph (b) ‘‘Within 

90 days after receipt of a’’ and adding 

‘‘After review of the’’ in its place. 

■ c. Removing paragraph (d). 

The revisions read as follows: 

§ 770.7 What procedures are to be used to 

transfer real property at defense nuclear 

facilities for economic development? 

(a) * * * 

(1) * * * 

(ii) The intended use and duration of 

use of the real property, including 

potential users and an indication that 

these users are interested in 

participating in the economic 

development of the property; 

(iii) A description of the economic 

development that would be furthered by 

the transfer (e.g., jobs to be created or 

retained, improvements to be made) or 

what reuse or reutilization would be 

accomplished by means of a description 

of the business to be created (direct and 

indirect economic benefits that will 

result due to the proposed transfer); 

* * * * * 

■ 7. Section 770.9 is amended by adding 

paragraph (e) to read as follows: 

§ 770.9 What conditions apply to DOE 

indemnification of claims against a person 

or entity based on the release or threatened 

release of a hazardous substance or 

pollutant or contaminant attributable to 

DOE? 

* * * * * 

(e) Any indemnification provided will 

apply to any successor, assignee, 

transferee, lender or lessee of the 

original entity that acquires ownership 

or control. 

[FR Doc. 2013–27117 Filed 11–12–13; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF COMMERCE 

Bureau of the Census 

15 CFR Part 30 

[Docket Number 100318153–3914–03] 

RIN 0607–AA50 

Foreign Trade Regulations (FTR): 

Mandatory Automated Export System 

Filing for All Shipments Requiring 

Shipper’s Export Declaration 

Information: Substantive Changes and 

Corrections 

AGENCY: Bureau of the Census, 

Commerce Department. 

ACTION: Final rule; delay of effective 

date and announcement of OMB 

approval of new information collection 

requirements. 


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