[Federal Register Volume 61, Number 199 (Friday, October 11, 1996)]
[Rules and Regulations]
[Pages 53554-53556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26056]


      

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Part III





Nuclear Regulatory Commission





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10 CFR Parts 2 and 13



Adjustment of Civil Monetary Penalties for Inflation; Final Rule



Policy and Procedure for Enforcement Actions; Policy Statement; Notice

  Federal Register / Vol. 61, No. 199 / Friday, October 11, 1996 / 
Rules and Regulations  

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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 2 and 13

RIN 3150-AF37


Adjustment of Civil Monetary Penalties for Inflation

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its 
regulations to adjust the maximum Civil Monetary Penalties (CMPs) under 
statutes within the jurisdiction of the NRC. These changes are mandated 
by Congress in the Federal Civil Penalties Inflation Adjustment Act of 
1990, as amended by the Debt Collection Improvement Act of 1996.
    The Commission's Rules of Practice are amended by adding a 
provision that establishes the maximum CMP for a violation of the AEA 
or any regulations or order issued thereunder in the amount of 
$110,000. The provisions concerning program fraud civil penalties are 
amended by adjusting the maximum civil penalties under the Program 
Fraud Civil Remedies Act from $5,000 to $5,500 for each false claim or 
statement as determined in accordance with that statute. The final rule 
also corrects a typographical error.

DATES: The rule shall be effective on November 12, 1996.

FOR FURTHER INFORMATION CONTACT: Roger K. Davis, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
telephone: 301-415-1615; e-mail [email protected]., or Geoffrey D. Cant, 
Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, 
DC 20555-0001, telephone: 301-415-3283; e-mail [email protected].
SUPPLEMENTARY INFORMATION:

I. Introduction.
II. Background.
III. Discussion.
IV. Procedural Background.
V. Environmental Impact: Categorical Exclusion.
VI. Paperwork Reduction Act Statement.
VII. Regulatory Analysis.
VIII. Small Business Regulatory Enforcement Fairness Act.
IX. Backfit Analysis.

I. Introduction

    The Commission has amended its regulations in Part 2 and 13 in 
order to adjust maximum civil monetary penalties within its 
jurisdiction as required by the Federal Civil Penalties Inflation 
Adjustment Act of 1990, as amended by the Debt Collection Improvement 
Act of 1996 (the Act) (Pub. L. 104-134, 110 Stat. 1321-358, 373, 
codified at 28 U.S.C. 2461 note).

II. Background

    The Federal Civil Penalties Inflation Adjustment Act of 1990 
required that the President submit, within 6 months and every fifth 
year thereafter, a report to certain Congressional committees on the 
specific amounts of civil monetary penalties that were authorized under 
Federal law, the amount of the penalties if adjusted for inflation, and 
a description of modifications to Federal law that would be necessary 
to increase the penalties to meet the inflation adjustment. Aside from 
modification of the scope and timing of Presidential reports to 
Congress, the Debt Collection Improvement Act of 1996 amended that 
statute to require that the head of each agency adjust by regulation 
the CMPs within the jurisdiction of the agency for inflation, no later 
than 180 days after the date of enactment of the Act and at least once 
every four years thereafter. Thus, the first inflation adjustment is 
required by October 23, 1996, which is 180 days after enactment of the 
Act on April 26, 1996.
    The inflation adjustment is to be determined by increasing the 
maximum CMPs or the range of minimum and maximum civil monetary 
penalties, as applicable, for each CMP by the percentage that the 
Consumer Price Index (CPI) for the month of June of the calendar year 
preceding the adjustment exceeds the CPI for the month of June of the 
last calendar year in which the amount of such penalty was last set or 
adjusted pursuant to law. In the case of penalties greater than $1,000 
but less than or equal to $10,000, inflation adjustment increases are 
to be rounded to the nearest multiple of $1,000. Increases are to be 
rounded to the nearest multiple of $10,000 in the case of penalties 
greater than $10,000 but less than or equal to $100,000. However, the 
first adjustment of a CMP pursuant to the Debt Collection Improvement 
Act of 1996 may not exceed 10 percent of such penalty.

III. Discussion

    Section 234 of the Atomic Energy Act (AEA), as amended in 1980, has 
limited civil penalties for violations of the Atomic Energy Act to 
$100,000 per day per violation. As adjusted for inflation, the penalty 
amount would be $180,000 (after rounding the amount of the inflation 
adjustment increase to the nearest multiple of $10,000). Because the 
Debt Collection Improvement Act of 1996 limits the amount of the first 
required increase to 10% of the maximum penalty amount, however, the 
NRC must limit its inflation adjustment increase to $10,000, i.e., 10 
percent of $100,000. Thus, the NRC has by regulation, by addition of a 
subsection (j) to 10 CFR 2.205, established a new maximum CMP under the 
Atomic Energy Act in the amount of $110,000. This new maximum CMP 
applies only to violations which occur after the effective date of this 
regulation.
    Monetary penalties under the Program Fraud Civil Remedies Act, 31 
U.S.C. 3801, 3802, and the NRC's implementing regulations, 10 CFR 
13.3(a)(1) and (b)(1), had been limited to $5,000 per violation. As 
adjusted fully for inflation, the penalty amount would be $7,000. 
Because of the 10 percent limit on the increase in the penalty for the 
first adjustment under the Debt Collection Improvement Act of 1996, the 
amount of the first required increase is limited to $500. Thus, NRC has 
amended 10 CFR 13.3(a)(1) and (b)(1) by increasing the maximum CMP for 
each false statement or claim under the Program Fraud Civil Remedies 
Act from $5,000 to $5,500. This new maximum CMP applies only to 
violations which occur after the effective date of this regulation.
    The Commission has no discretion to set alternative levels of 
adjusted civil penalties since the amount of the inflation adjustment 
must be calculated in accordance with the statutory formula. Conforming 
changes to the NRC Enforcement Policy (NUREG-1600), published in the 
Federal Register on June 30, 1995 (60 FR 34381), will be made and 
published in a notice accompanying this rule.
    The final rule also corrects a typographical error in 10 CFR 
13.3(a)(1)(iv). The word ``as'' is substituted for the word ``was'' and 
the clause, as revised, now conforms to the exact words of 31 U.S.C. 
3802(a)(1)(D), as the NRC originally intended.

IV. Procedural Background

    This final rule has been issued without prior public notice or 
opportunity for public comment. The Administrative Procedure Act (5 
U.S.C. 553(b)(B)) does not require that process ``when the agency for 
good cause finds (and incorporates the finding and a brief statement of 
reasons therefor in the rules issued) that notice and public procedure 
thereon are impracticable, unnecessary, or contrary to the public 
interest.'' In this instance, the NRC finds, for good cause, that 
solicitation of public comment on this final rule is unnecessary and 
impractical. Congress has required that the agency issue the

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amendments contained in the rule, and provided no discretion to the 
agency regarding the substance of the amendments. All that is required 
of the NRC for determination of the amount of the inflation adjustment 
are ministerial computations.

V. Environmental Impact: Categorical Exclusion

    The NRC has determined that this final rule is the type of action 
described as a categorical exclusion in 10 CFR 51.22(c)(1) and 
51.22(c)(2). Therefore, neither an environmental impact statement nor 
an environmental assessment has been prepared for this regulation. This 
action merely adjusts monetary civil penalties for inflation as 
required by statute and involves no policy determinations.

VI. Paperwork Reduction Act Statement

    This final rule does not contain a new or amended information 
collection requirement subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

VII. Regulatory Analysis

    This final rule adjusts for inflation the maximum civil penalties 
under the Atomic Energy Act of 1954, as amended, and under the Program 
Fraud Civil Remedies Act of 1986. The adjustments and the formula for 
determining the amount of the adjustment are mandated by Congress in 
the Federal Civil Penalties Inflation Adjustment Act of 1990, as 
amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-
134, 110 Stat. 1321-358, 373, codified at 28 U.S.C. 2461 note). 
Congress passed that legislation on the basis of its findings that the 
power to impose monetary civil penalties is important to deterring 
violations of Federal law and furthering the policy goals of Federal 
laws and regulations. Congress has also found that inflation has 
diminished the impact of these penalties and their effect. Thus, 
principal purposes of this legislation are to provide for adjustment of 
civil monetary penalties for inflation, maintain their deterrent effect 
and promote compliance with the law. Thus, these are anticipated 
impacts of implementation of the mandatory provisions of the 
legislation. Direct monetary impacts will fall only upon licensees or 
other persons subjected to NRC enforcement action or those licensees or 
persons subjected to liability pursuant to the provisions of the 
Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801-3812) and the 
NRC's implementing regulations (10 CFR Part 13).

VIII. Small Business Regulatory Enforcement Fairness Act

    In accordance with the Small Business Regulatory Enforcement 
Fairness Act of 1996, the NRC has determined that this action is not a 
major rule and has verified this determination with the Office of 
Information and Regulatory Affairs of OMB.

IX. Backfit Analysis

    The NRC has determined that these amendments do not involve any 
provisions which would impose backfits as defined in 10 CFR 
50.109(a)(1); therefore, a backfit analysis need not be prepared.

List of Subjects

10 CFR Part 2

    Administrative practice and procedure, Antitrust, Byproduct 
material, Classified information, Environmental protection, Nuclear 
materials, Nuclear power plants and reactors, Penalties, Sex 
discrimination, Source material, Special nuclear material, Waste 
treatment and disposal.

10 CFR Part 13

    Claims, Fraud, Organization and function (government agencies), 
Penalties.

    For the reasons set out above and under the authority of the Atomic 
Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, 
as amended, the Federal Civil Penalties Adjustment Act of 1990, as 
amended, and 5 U.S.C. 552 and 553, the NRC is adopting the following 
amendments to 10 CFR Parts 2 and 13.

PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND 
ISSUANCE OF ORDERS

    1. The authority citation for Part 2 is revised to read as follows:

    Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 
5841); 5 U.S.C. 552.
    Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 
105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 
U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub. 
L. 97-425, 96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec. 102, 
Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 
88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 
2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 
936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 
2135, 2233, 2239). Section 2.105 also issued under Pub. L. 97-415, 
96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued 
under secs. 161 b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 83 
Stat. 444, as amended (42 U.S.C. 2201 (b), (i), (o), 2236, 2282); 
sec. 206, 88 Stat. 1246 (42 U.S.C. 5846). Section 2.205(j) also 
issued under Pub. L. 101-410, 104 Stat. 890, as amended by section 
31001(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note). 
Sections 2.600-2.606 also issued under sec. 102, Pub. L. 91-190, 83 
Stat. 853, as amended (42 U.S.C. 4332). Sections 2.700a, 2.719 also 
issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 also 
issued under 5 U.S.C. 557. Section 2.764 also issued under secs. 
135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 
10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as 
amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 
also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 
U.S.C. 553 and sec. 29, Pub. L. 85-256, 71 Stat. 579, as amended (42 
U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42 
U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 
10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42 
U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L. 91-560, 
84 Stat. 1473 (42 U.S.C. 2135). Appendix B also issued under sec. 
10, Pub. L. 99-240, 99 Stat. 1842 (42 U.S.C. 2021b et seq.).

    2. Section 2.205 is amended by adding paragraph (j) to read as 
follows:


Sec. 2.205  Civil penalties.

* * * * *
    (j) Amount. A civil monetary penalty imposed under Section 234 of 
the Atomic Energy Act of 1954, as amended, or any other statute within 
the jurisdiction of the Commission that provides for imposition of a 
civil penalty in an amount equal to the amount set forth in Section 
234, may not exceed $110,000 for each violation. If any violation is a 
continuing one, each day of such violation shall constitute a separate 
violation for the purpose of computing the applicable civil penalty.

PART 13--PROGRAM FRAUD CIVIL REMEDIES

    3. The authority citation for Part 13 is revised to read as 
follows:

    Authority: Public Law 99-509, secs. 6101-6104, 100 Stat. 1874 
(31 U.S.C. 3801-3812). Sections 13.13 (a) and (b) also issued under 
section Pub. L. 101-410, 104 Stat. 890, as amended by section 
31001(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note).

    4. In Sec. 13.3, paragraphs (a)(1) and (b)(1) are revised to read 
as follows:


Sec. 13.3  Basis for civil penalties and assessments.

    (a) Claims.

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    (1) Any person who makes a claim that the person knows or has 
reason to know--
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written statement which 
asserts a material fact which is false, fictitious, or fraudulent;
    (iii) Includes or is supported by any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed, shall be subject, in addition 
to any other remedy that may be prescribed by law, to a civil penalty 
of not more than $5,500 for each such claim.
* * * * *
    (b) Statements.
    (1) Any person who makes a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement has a duty to include in such 
statement; and
    (ii) Contains or is accompanied by an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement, shall be subject, in addition to any other remedy that may 
be prescribed law, to a civil penalty of not more than $5,500 for each 
such statement.
* * * * *
    Dated at Rockville, Maryland, this 1st day of October, 1996.

    For the Nuclear Regulatory Commission.
James M. Taylor,
Executive Director for Operations.
[FR Doc. 96-26056 Filed 10-10-96; 8:45 am]
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