[Federal Register Volume 68, Number 106 (Tuesday, June 3, 2003)]
[Rules and Regulations]
[Pages 32955-32958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13858]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 68, No. 106 / Tuesday, June 3, 2003 / Rules
and Regulations
[[Page 32955]]
DEPARTMENT OF ENERGY
10 CFR Part 765
RIN 1901-AA88
Reimbursement for Costs of Remedial Action at Active Uranium and
Thorium Processing Sites
AGENCY: Office of Environmental Management, Department of Energy.
ACTION: Final rule; Technical and administrative amendments.
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SUMMARY: The Department of Energy (DOE) adopts several technical and
administrative amendments to its procedural regulations governing the
reimbursement of remedial action costs at active uranium and thorium
processing sites. Since it was enacted in 1992, the original
legislation authorizing the program has been amended four times to
increase the amounts authorized for reimbursement and to make technical
changes. Today's regulatory amendments reflect the legislative
amendments and make other technical corrections that have been
identified since the original rule was issued. None of the amendments
raise substantive issues or represent changes in policy.
DATES: This rule will be effective July 3, 2003.
FOR FURTHER INFORMATION CONTACT: David E. Mathes, Office of
Environmental Management, EM-30, U.S. Department of Energy, Germantown,
Maryland 20874-1290. Telephone: (301) 903-7222. Internet:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Discussion
The Secretary of Energy has approved today's technical and
administrative regulatory amendments in order to conform 10 CFR part
765 to legislative amendments to Title X of the Energy Policy Act of
1992 (sections 1001-1004 of Pub. L. 102-486) and the need to make other
corrections to the original rule published on May 23, 1994 (59 FR
26714). Congress has amended the original legislation four times since
it was enacted on October 24, 1992. In 1996, Public Law 104-259 amended
Title X to increase the authorized reimbursement amounts for uranium
and thorium licensees from $270 million and $40 million to $350 million
and $65 million, respectively, for an aggregate authorized
reimbursement amount of $415 million; and to increase the maximum
amount that may be reimbursed to uranium licensees per dry short ton of
Federal-related byproduct material from $5.50 to $6.25. In 1998, Public
Law 105-388 further amended Title X to increase the authorized
reimbursement amount for the thorium licensee from $65 million to $140
million, for an aggregate authorized reimbursement amount to uranium
and thorium licensees of $490 million. In 2000, Public Law 106-317
amended Title X to change the date for determining the availability of
excess funds for reimbursement to uranium licensees from July 31, 2005,
to December 31, 2008; to change the date after which work must be
completed in accordance with an approved plan for subsequent remedial
action to be eligible for reimbursement from December 31, 2002, to
December 31, 2007; and to eliminate the requirement for the Department
to place certain reimbursement funds in escrow. In 2002, Public Law
107-222 amended Title X to increase the authorized reimbursement amount
for the thorium licensee from $140 million to $365 million, for an
aggregate authorized reimbursement amount to uranium and thorium
licensees of $715 million.
Part 765 is amended in several places to reflect these statutory
provisions. Other technical corrections to the original rule are
discussed in the following paragraphs.
Section 765.21(e) is revised to provide a licensee with an
additional opportunity to provide reasonable documentation, as
specified in Sec. 765.20, for claims or portions of claims that DOE
has denied during the claim year. The revised rule now gives a licensee
45 days after DOE issues a written decision to deny the claim, in which
to provide the documentation for DOE reconsideration of the claim. If a
licensee chooses not to submit the documentation, the licensee still
has the right to file a formal appeal to the DOE's claim denial in
accordance with Sec. 765.22. If a licensee chooses to submit the
documentation, DOE will consider whether the documentation results in
the DOE's reversal of its initial decision to deny the claim and will
inform the licensee of the DOE's subsequent decision. A licensee may
also appeal that decision in accordance with Sec. 765.22. By providing
this additional opportunity to a licensee, DOE believes that both DOE
and the licensee may save time and money by minimizing the number of
appeals.
Section 765.23 is amended to indicate the new address for obtaining
copies of the DOE status report on the reimbursement program.
Section 765.30(b) presents the procedure for submitting a plan for
subsequent remedial action. The original rule indicated that licensees
may submit this plan any time after January 1, 2000, but no later than
December 31, 2001. Because Congress changed the date after which work
must be completed in accordance with an approved plan for subsequent
remedial action to be eligible for reimbursement from December 31,
2002, to December 31, 2007, this final rule correspondingly changes the
dates for submitting a plan to DOE to any time after January 1, 2005,
but no later than December 31, 2006.
Section 765.30(d) outlines the process for resubmitting a revised
plan for subsequent remedial action if the original plan is rejected by
DOE. The original rule indicated that a licensee may continue to submit
revised plans for subsequent remedial action until DOE approves a plan,
or September 30, 2002, whichever occurs first. This final rule changes
the September 30, 2002, deadline to September 30, 2007, to correspond
with the new statutory deadline for making reimbursements in accordance
with a subsequent plan for remedial action.
Section 765.30(e) presents the procedures for determining the
maximum amounts for which licensees may be eligible for reimbursement
for work performed as described in their plans for subsequent remedial
action submitted to and approved by DOE. The original rule indicated
that a licensee is
[[Page 32956]]
eligible for the lesser of two amounts: (1) The total cost of remedial
action multiplied by the Federal reimbursement ratio; or (2) $5.50, as
adjusted for inflation, multiplied by the number of Federal-related dry
short tons of byproduct material. As drafted, the original rule could
have been construed to apply the per dry short ton limit to both
uranium and thorium licensees. Since Title X (42 U.S.C. Sec.
2296a(b)(2)(A)) limits the applicability of the per dry short ton limit
to uranium licensees, this final rule amends Sec. 765.30(e)(2) to
clarify that the per dry short ton limit only applies to uranium
licensees.
In accordance with Sec. 765.30(b), because licensees' plans for
subsequent remedial action are now due no later than December 31, 2006,
this final rule amends Sec. 765.30(e)(2) to clarify that the potential
additional reimbursement for which a licensee may be entitled will be
adjusted after the approval of claims for work performed through
December 31, 2007, to account for the actual approved costs of work
performed through 2007.
As originally prescribed, Sec. 765.31(a) outlined the procedures
for designating specific amounts on deposit in the Uranium Enrichment
Decontamination and Decommissioning Fund established at the United
States Department of the Treasury for reimbursement of costs incurred
in accordance with an approved plan for subsequent remedial action. The
purpose of this paragraph was to implement the original requirement of
Sec. 1001(b)(1)(B)(ii) of Pub. L. 102-486 that funds be placed in
escrow not later than December 31, 2002, in accordance with an approved
plan for subsequent remedial action. Because Pub. L. 106-317 amended
the original legislation by striking the requirement to place funds in
escrow, this final rule removes this paragraph and renumbers the
subsequent paragraphs in this section.
II. 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 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
Executive 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. With regard to the review
required by section 3(a), 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.
C. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. There is no
legal requirement to propose today's rule for public comment, and
therefore, the Regulatory Flexibility Act does not apply to this
rulemaking proceeding.
D. Review Under the Paperwork Reduction Act
No new collection of information or recordkeeping requirements is
imposed by this final rule. Accordingly, no clearance by OMB is
required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
E. Review Under Executive Order 13132
Executive Order 13132 (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. 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 the National Environmental Policy Act
Pursuant to the Council on Environmental Quality Regulations (40
CFR parts 1500--1508), DOE has established guidelines for compliance
with the provisions of the National Environmental Policy Act (NEPA) of
1969 (42 U.S.C. 4321 et seq.). This rule makes technical corrections to
procedures for the reimbursement of eligible remedial action costs
incurred by licensees at active uranium and thorium processing sites.
Implementation of this rule will not affect the legally required
cleanup of the sites or result in any other environmental impacts. The
Department has therefore determined that this rule is covered under the
Categorical Exclusion found at paragraph A6 of Appendix A to subpart D,
10 CFR part 1021, which applies to the establishment of procedural
rulemakings such as procedures for the review and approval of
applications for grants and cooperative agreements. Accordingly,
neither an environmental assessment nor an environmental impact
statement is required.
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 Federal
regulations on States, 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. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress
promulgation of the rule prior to its effective date. The report will
state that it has been
[[Page 32957]]
determined that the rule is not a ``major rule'' as defined by 5 U.S.C.
804(3).
List of Subjects in 10 CFR Part 765
Radioactive materials, Reclamation, Reporting and record keeping
requirements, Uranium.
Issued in Washington, DC, on May 23, 2003.
Jessie Hill Roberson,
Assistant Secretary for Environmental Management.
0
For the reasons set forth in the preamble, part 765 of chapter III of
title 10 of the Code of Federal Regulations is amended as set forth
below.
PART 765--REIMBURSEMENT FOR COSTS OF REMEDIAL ACTION AT ACTIVE
URANIUM AND THORIUM PROCESSING SITES
0
1. The authority citation for part 765 is revised to read as follows:
Authority: 42 U.S.C. 2296a et seq.
0
2. In the table below, for each section indicated in the left column
remove the language indicated in the middle column and add in its place
the language indicated in the right column.
----------------------------------------------------------------------------------------------------------------
Section Remove Add
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765.2(c)........................... ``December 31, 2002''...... ``December 31, 2007''
765.2(e)........................... ``$5.50''.................. ``$6.25''
765.2(f)........................... ``$270 million''........... ``$350 million''
765.2(g)........................... ``$40 million''............ ``$365 million''
765.2(i)........................... ``$310 million''........... ``$715 million''
765.11(b).......................... ``December 31, 2002''...... ``December 31, 2007''
765.11(c)(1)....................... ``$5.50''.................. ``$6.25''
765.11(c)(2)....................... ``$270 million''........... ``$350 million''
765.11(c)(3)....................... ``$40 million''............ ``$365 million''
765.12(a).......................... a. ``$5.50''............... a. ``$6.25''
b. ``$270 million''........ b. ``$350 million''
c. ``$40 million''......... c. ``$365 million''
d. ``$310 million''........ d. ``$715 million''
765.12(c).......................... ``$5.50''.................. ``$6.25''
765.23............................. ``Uranium Mill Tailings ``National Nuclear Security Administration
Remedial Action Project Service Center, Office of Technical Services,
Office, 2155 Louisiana Environmental Programs Department, P.O. Box
NE., Suite 10000, 5400, Albuquerque, NM 87185-5400''
Albuquerque, NM 87110''.
765.30(b).......................... a. ``December 31, 2002''... a. ``December 31, 2007''
b. ``January 1, 2000''..... b. ``January 1, 2005''
c. ``December 31, 2001''... c. ``December 31, 2006''
765.30(b)(2)....................... ``December 31, 2002''...... ``December 31, 2007''
765.30(d).......................... a. ``September 30, 2002''.. a. ``September 30, 2007''
b. ``December 31, 2002''... b. ``December 31, 2007''
765.32(a).......................... ``July 31, 2005''.......... ``December 31, 2008''
765.32(c).......................... ``$5.50''.................. ``$6.25''
----------------------------------------------------------------------------------------------------------------
0
3. In Sec. 765.3, the definitions are amended by revising the
introductory text and paragraph (2) of Maximum reimbursement amount or
maximum reimbursement ceiling and Plan for subsequent remedial action
to read as follows:
Sec. 765.3 Definitions.
* * * * *
Maximum reimbursement amount or maximum reimbursement ceiling means
the smaller of the following two quantities:
* * * * *
(2) $6.25, as adjusted for inflation, multiplied by the number of
Federal-related dry short tons of byproduct material.
* * * * *
Plan for subsequent remedial action means a plan approved by the
Department which includes an estimated total cost and schedule for
remedial action, and all applicable requirements of remedial action
established by NRC or an Agreement State to be performed after December
31, 2007, at an active uranium or thorium processing site.
* * * * *
0
4. In Sec. 765.21, paragraph (e) is revised to read as follows:
Sec. 765.21 Procedures for processing reimbursement claims.
* * * * *
(e) A written decision regarding the Department's determination to
approve, approve in part, or deny a claim will be provided to the
licensee within 10 days of completion of the claim review. Within 45
days after the Department's issuance of a written decision to deny the
claim due to inadequate documentation, the licensee may request the
Department to reconsider its decision if the licensee provides
reasonable documentation in accordance with Sec. 765.20. If a licensee
chooses not to submit the documentation, the licensee has the right to
file a formal appeal to a claim denial in accordance with Sec. 765.22.
If a licensee chooses to submit the documentation, the Department will
consider whether the documentation results in the Department's reversal
of the initial decision to deny the claim and will inform the licensee
of the Department's subsequent decision. The licensee may appeal that
decision in accordance with Sec. 765.22.
* * * * *
0
5. In Sec. 765.30, paragraph (e)(2) is revised to read as follows:
Sec. 765.30 Reimbursement of costs incurred in accordance with a plan
for subsequent remedial action.
* * * * *
(e) * * *
(1) * * *
(2) For the uranium site licensees only, $6.25, as adjusted for
inflation, multiplied by the number of Federal-related dry short tons
of byproduct material. For all licensees, the
[[Page 32958]]
Department shall subtract from the maximum reimbursement amount any
reimbursement already approved to be paid to the licensee. The
resulting sum shall be the potential additional reimbursement to which
the licensee may be entitled. This resulting sum will be adjusted after
the approval of claims for work performed through December 31, 2007, to
reflect the actual approved costs of work performed through that date.
Sec. 765.31 [Amended]
0
6. Section 765.31 is amended by removing paragraph (a) and
redesignating paragraphs (b) through (d) as paragraphs (a) through (c).
[FR Doc. 03-13858 Filed 6-2-03; 8:45 am]
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