[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Rules and Regulations]
[Pages 54671-54673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22172]
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2 and 13
RIN 3150-AI45
[NRC-2008-0412]
Adjustment of Civil 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) it
can assess under statutes within the jurisdiction of the NRC. These
changes were mandated by Congress in the Federal Civil Penalties
Inflation Adjustment Act of 1990, as amended by the Debt Collection
Improvement Act of 1996. The NRC is amending its regulations to adjust
the maximum CMP for a violation of the Atomic Energy Act of 1954, as
amended, (AEA) or any regulation or order issued under the AEA from
$130,000 to $140,000 per violation per day. Further, the provisions
concerning program fraud civil penalties are being amended by adjusting
the maximum CMP under the Program Fraud Civil Remedies Act from $6,000
to $7,000 for each false claim or statement.
DATES: This rule is effective on October 23, 2008.
ADDRESSES: You can access publicly available documents related to this
document using the following methods:
Federal e-Rulemaking Portal: Go to http://www.regulations.gov and
search for documents filed under Docket ID [NRC-2008-0412]. Address
questions about NRC dockets to Carol Gallagher 301-415-5905; e-mail
[email protected].
NRC's Public Document Room (PDR): The public may examine and have
copied for a fee publicly available documents at the NRC's PDR, Public
File Area O F21, One White Flint North, 11555 Rockville Pike,
Rockville, Maryland.
NRC's Agencywide Documents Access and Management System (ADAMS):
Publicly available documents created or received at the NRC are
available electronically at the NRC's electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain
entry into ADAMS, which provides text and image files of NRC's public
documents. If you do not have access to ADAMS or if there are problems
in accessing the documents located in ADAMS, contact the NRC's PDR
reference staff at 1-899-397-4209, 301-415-4737, or by e-mail to
[email protected].
FOR FURTHER INFORMATION CONTACT: Maxwell C. Smith, Office of the
General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, telephone 301-415-1246, e-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion
III. Procedural Background
IV. Voluntary Consensus Standard
V. Environmental Impact: Categorical Exclusion
VI. Paperwork Reduction Act Statement
VII. Regulatory Analysis
VIII. Regulatory Flexibility Certification
IX. Backfit Analysis
X. Congressional Review Act
I. Background
The Federal Civil Penalties Inflation Adjustment Act of 1990, as
amended, requires that the head of each agency adjust by regulations
the CMPs within the jurisdiction of the agency for inflation at least
once every four years. The NRC's last adjustment to the CMPs within its
jurisdiction became effective on November 26, 2004. (October 26, 2004;
69 FR 62393).
The inflation adjustment is to be determined by increasing the
maximum CMPs 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 in the last calendar year in which the
amount of the penalty was last adjusted. Applying this formula results
in a 9.8 percent increase to the maximum CMPs for violations of the
AEA. During the 2004 inflation adjustment, the CMPs for violations of
the Program Fraud Civil Remedies Act remained unchanged. Therefore, for
this update the percentage change to CMPs for violations of the Program
Fraud Civil Remedies Act is the change in the CPI from June 2000 (the
date it was last adjusted for inflation) until June 2007, which is a
difference of 21 percent. 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 $100,000 but less than or equal to $200,000.
II. Discussion
Section 234 of the AEA limits civil penalties for violations of the
Atomic Energy Act to $100,000 per day per violation. In 1996, under the
Debt Collection Improvement Act (DCIA), the NRC adjusted this figure to
$110,000. The DCIA also amended the Federal Civil Penalties Inflation
Adjustment Act of 1990 to require that the head of each agency adjust
the CMPs within the jurisdiction of the agency for inflation at least
once every four years. Therefore, in 2000 the NRC adjusted the maximum
CMPs to $120,000, and in 2004 the NRC adjusted the maximum CMPs to
$130,000. The NRC is required to adjust the CMPS within its
jurisdiction again this year. After this mandatory adjustment for
inflation, the adjusted maximum CMP for a violation of the AEA or any
regulation or order issued under the AEA will be $140,000 per day per
violation (rounding the amount of the inflation adjustment increase,
9.8 percent, to the nearest multiple of $10,000). Thus, the NRC is
amending Sec. 2.205 to reflect a new maximum CMP under the AEA in the
amount of $140,000 per day per violation. The amended maximum CMP
applies only to violations that occur after the effective date of this
final rule.
Monetary penalties under the Program Fraud Civil Remedies Act, 31
U.S.C. 3801 and 3802, and the NRC's implementing regulations, Sec.
13.3(a)(1) and (b)(1) are currently limited to $6,000. In 2004, when
the NRC last adjusted CMPs for inflation, these penalties did not meet
the statutory criteria to be changed because the inflation increase was
not large enough. The NRC must adjust CMPs for the change in inflation
since the last time the CMPs were adjusted. For the Program Fraud Civil
Remedies Act CMPs, this means the change in the CPI since 2000; that
difference is 21 percent. When this change is applied to Sec.
13.3(a)(1) and (b)(1) (and rounding to the nearest multiple of $1,000)
the new penalty amount will be $7,000. Thus, the NRC is amending Sec.
13.3(a)(1) and (b)(1) by increasing the maximum civil penalty for each
false statement or claim under the Program Fraud Civil Remedies Act
from $6,000 to $7,000. The amended CMP applies only to violations that
occur after the effective date of this final rule.
The Commission has no discretion to set alternative levels of
adjusted civil penalties because the amount of inflation adjustment
must be calculated by a formula established by statute.
[[Page 54672]]
Conforming changes to the NRC Enforcement Policy (NUREG-1600) will be
made as part of the overall revisions to the Enforcement Policy
currently taking place. (January 25, 2007; 72 FR 3429).
III. Procedural Background
This final rule has been issued without prior public notice or
opportunity for public comments. The Administrative Procedure Act (5
U.S.C. 553(b)(B)) does not require an agency to use the public notice
and comment process ``when the agency for good cause finds (and
incorporates the finding and a brief statement of reasons therefore 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 the NRC to adjust the CMPs within NRC
jurisdiction for inflation at least once every four years, and provided
no discretion regarding the substance of the amendments. The NRC is
required only to perform ministerial computations to determine the
inflation adjustment to the CMPs.
IV. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995,
Public Law 104-113, requires that Federal agencies use technical
standards that are developed or adopted by voluntary consensus
standards bodies unless using such a standard is inconsistent with
applicable law or is otherwise impractical. There are no consensus
standards that apply to the inflation adjustment requirements in this
final rule. Thus, the provisions of the Act do not apply to this
rulemaking.
V. Environmental Impact: Categorical Exclusion
The Commission has determined that this final rule is the type of
action described as a categorical exclusion in 10 CFR 51.22(c)(1) and
(2). Therefore, neither an environmental impact statement nor an
environmental assessment has been prepared for this final rule.
VI. Paperwork Reduction Act Statement
This final rule does not contain new or amended information
collection requirements subject to the requirements of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
requirement unless the requesting document displays a currently valid
OMB control number.
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 (Pub. L.
101-410, 104 Stat. 890), as amended by the Debt Collection Improvement
Act of 1996, as amended (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. The principal purposes of this legislation
are to provide for adjustment of civil monetary penalties for
inflation, maintain the deterrent effect of civil monetary penalties,
and promote compliance with the law. Thus, these are anticipated
impacts of implementation of the mandatory provisions of the
legislation. Direct monetary impacts fall only upon licensees or other
persons subjected to NRC enforcement or those licensees or persons
subjected to liability under 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. Regulatory Flexibility Certification
As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission certifies that this final rule would not have a
significant economic impact upon a substantial number of small
entities.
IX. Backfit Analysis
The NRC has determined that these amendments do not involve any
provision which would impose a backfit under the backfit rule,
Sec. Sec. 50.109, 70.76, 72.62, 76.76; therefore, a backfit analysis
need not be prepared.
X. Congressional Review Act
In accordance with the Congressional Review Act, 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.
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.
0
For the reasons set out in the preamble and under the authority of the
Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of
1974, 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
0
1. The authority citation for part 2 continues to read as follows:
Authority: Secs.161, 181, 68 Stat. 948, 953, as amended (42
U.S.C. 2201, 2231); sec. 191, as amended, Public Law 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; sec. 1704, 112 Stat. 2750 (44 U.S.C.
3504 note).
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104,
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), Public Law
97-425, 96 Stat. 2213, as amended (42 U.S.C. 10143(f)); sec. 102,
Public Law 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, 183i, 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 Public Law 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 Public Law 101-
410, 104 Stat. 90, as amended by section 3100(s), Public Law 104-
134, 110 Stat. 1321-373 (28 U.S.C. 2461 note). Subpart C also issued
under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Sections 2.600-2.606
also issued under sec. 102, Public Law 91-190, 83 Stat. 853, as
amended (42 U.S.C. 4332). Section
[[Page 54673]]
2.301 also issued under 5 U.S.C. 554. Sections 2.343, 2.346, 2.712
also issued under 5 U.S.C. 557. Section 2.340 also issued under
secs. 135, 141, Public Law 97-425, 96 Stat. 2232, 2241 (42 U.S.C.
10155, 10161). Section 2.390 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, Public Law 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, Public Law 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). Subpart M also issued under sec. 184 (42 U.S.C. 2234) and
sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also issued
under sec. 6, Public Law 91-550, 84 Stat. 1473 (42 U.S.C. 2135).
0
2. In Sec. 2.205, paragraph (j) is revised 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 the imposition of
a civil penalty in an amount equal to the amount set forth in Section
234, may not exceed $140,000 for each violation. If any violation is a
continuing one, each day of such violation shall constitute a separate
violation for the purposes of computing the applicable civil penalty.
PART 13--PROGRAM FRAUD CIVIL REMEDIES
0
3. The authority citation for part 13 continues to read as follows:
Authority: Public Law 99-509, sec. 6101-6104, 100 Stat. 1874 (31
U.S.C. 3801-3812); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).
Sections 13.13(a) and (b) also issued under section Public Law 101-
410, 104 Stat. 890, as amended by section 31001(s), Public Law 104-
134, 110 Stat. 1321-373 (28 U.S.C. 2461 note).
0
4. In Sec. 13.3, paragraphs (a)(1)(iv) and (b)(1)(ii) are revised to
read as follows:
Sec. 13.3 Basis for civil penalties and assessments.
(a) * * *
(1) * * *
(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 $7,000 for each such claim.
* * * * *
(b) * * *
(1) * * *
(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 by law, to a civil penalty of not more than $7,000 for
each such statement.
* * * * *
Dated at Rockville, Maryland, this 4th day of September 2008.
For the Nuclear Regulatory Commission.
Bruce S. Mallett,
Acting Executive Director for Operations.
[FR Doc. E8-22172 Filed 9-22-08; 8:45 am]
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