2017-01959. Procedural Rules for DOE Nuclear Activities

AGENCY:

Office of Enterprise Assessments, Office of Enforcement, Office of Nuclear Safety Enforcement, Department of Energy.

ACTION:

Final rule; stay of regulations.

SUMMARY:

This document stays DOE regulations for the assessment of civil penalties against certain contractors and subcontractors for violations of the prohibition against an employee who reports violations of law, mismanagement, waste, abuse or dangerous/unsafe workplace conditions, among other protected activities, concerning nuclear safety.

DATES:

Effective January 31, 2017, 10 CFR 820.2 (the definition for “DOE Nuclear Safety Requirements”), 820.14, 820.20(a) and (b), and appendix A to part 820, section XIII, are stayed until March 21, 2017.

FOR FURTHER INFORMATION CONTACT:

Steven Simonson, U.S. Department of Energy, Office of Enterprise Assessments/Germantown Building, 1000 Independence Ave. SW., Washington, DC 20585-1290. Phone: [phone]. Email: [e-mail].

K.C. Michaels, U.S. Department of Energy, Office of the General Counsel, 1000 Independence Ave. SW., Washington, DC 20585-0121. Phone: [phone]. Email: [e-mail].

SUPPLEMENTARY INFORMATION:

On January 20, 2017, the Assistant to the President and Chief of Staff (“Chief of Staff”) issued a memorandum, published in the Federal Register on January 24, 2017 (82 FR 8346), outlining the President's plan for managing the Federal regulatory process at the outset of the new Administration. In implementation of one of the measures directed by that memorandum, the United States Department of Energy (“DOE”) hereby temporarily stays regulations in its final rule amending its procedural rules for DOE nuclear activities published in the Federal Register on December 27, 2016. See 81 FR 94910. In the December 27 rule, DOE clarified that the Department may assess civil penalties against certain contractors and subcontractors for violations of the prohibition against retaliating against an employee who reports violations of law, mismanagement, waste, abuse, or dangerous/unsafe workplace conditions, among other protected activities, concerning nuclear safety (referred to as “whistleblowers”). Specifically, DOE clarified the definition of “DOE Nuclear Safety Requirements” and clarified that the prohibition against whistleblower retaliation is a DOE Nuclear Safety Requirement to the extent that it concerns nuclear safety. Consistent with the memorandum, DOE is temporarily staying regulations in the final rule by an additional 60 days starting from January 20, 2017. The temporary 60-day stay is necessary to give DOE officials the opportunity for further review and consideration of new regulations, consistent with the Chief of Staff's memorandum of January 20, 2017.

To the extent that 5 U.S.C. 553 applies to this action, it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. 553(b)(A). Alternatively, DOE's implementation of this action without opportunity for public comment, effective immediately upon publication in the Federal Register, is based on the good cause exceptions in 5 U.S.C. 553(b)(B) and 553(d)(3). Pursuant to 5 U.S.C. 553(b)(B), DOE has determined that good cause exists to forego the requirement to provide prior notice and an opportunity for public comment thereon for this rule as such procedures would be impracticable, unnecessary and contrary to the public interest. DOE is temporarily staying this regulation pursuant to the previously-noted memorandum of the Chief of Staff and is exercising no discretion in implementing this specific provision of the memorandum.

As a result, seeking public comment on this stay is unnecessary and contrary to the public interest. It is also impracticable given that the memorandum was issued on January 20, 2017 and the previous effective date of the rule at issue was January 26, 2017. For these same reasons, DOE finds good cause to waive the 30-day delay in effective date provided for in 5 U.S.C. 553(d).

Issued in Washington, DC, on January 24, 2017.

John T. Lucas,

Acting General Counsel.