[Federal Register Volume 81, Number 127 (Friday, July 1, 2016)]
[Rules and Regulations]
[Pages 43019-43021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15399]
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2 and 13
[NRC-2016-0057]
RIN 3150-AJ72
Adjustment of Civil Penalties for Inflation
AGENCY: Nuclear Regulatory Commission.
ACTION: Interim final rule.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is amending its
regulations to adjust the maximum Civil Monetary Penalties (CMPs) it
can assess under statutes enforced by the agency. These changes are
mandated by the Federal Civil Penalties Inflation Adjustment Act of
1990 (FCPIAA), as amended by the Federal Civil Penalties Inflation
Adjustment Act Improvements Act of 2015 (2015 Improvements Act). 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 $140,000 to $280,469 per
violation, per day. Additionally, the NRC is amending provisions
concerning program fraud civil penalties by adjusting the maximum CMP
under the Program Fraud Civil Remedies Act from $7,000 to $10,781 for
each false claim or statement.
DATES: This interim final rule is effective on August 1, 2016.
ADDRESSES: Please refer to Docket ID NRC-2016-0057 when contacting the
NRC about the availability of information for this action. You may
obtain publicly-available information related to this action by any of
the following methods:
Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0057. Address
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; email: [email protected]. For technical questions, contact
the individual listed in the FOR FURTHER INFORMATION CONTACT section of
this document.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may obtain publicly-available documents online in the
ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``ADAMS Public Documents'' and
then select ``Begin Web-based ADAMS Search.'' For problems with ADAMS,
please contact the NRC's Public Document Room (PDR) reference staff at
1-800-397-4209, 301-415-4737, or by email to [email protected]. The
ADAMS accession number for each document referenced (if it is available
in ADAMS) is provided the first time that it is mentioned in the
SUPPLEMENTARY INFORMATION section.
NRC's PDR: You may examine and purchase copies of public
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555
Rockville Pike, Rockville, Maryland 20852.
FOR FURTHER INFORMATION CONTACT: Eric Michel, Office of the General
Counsel, telephone: 301-287-3704, email: [email protected], U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Discussion
III. Procedural Background
IV. Section-by-Section Analysis
V. Regulatory Flexibility Certification
VI. Regulatory Analysis
VII. Backfitting and Issue Finality
VIII. Plain Writing
IX. National Environmental Policy Act
X. Paperwork Reduction Act
XI. Congressional Review Act
I. Background
Congress passed the FCPIAA in 1990 to allow for regular adjustment
for inflation of CMPs, maintain the deterrent effect of civil monetary
penalties and promote compliance with the law, and improve the
collection of CMPs by the Federal government (Pub. L. 101-410, 104
Stat. 890; 28 U.S.C. 2461 note). As amended by the Debt Collection
Improvement Act of 1996, the FCPIAA required that the head of each
agency review, and if necessary adjust by regulation, the CMPs assessed
under statutes enforced by that agency at least once every 4 years, in
accordance with a statutory formula linked to the percentage change in
the Consumer Price Index (CPI) (Pub. L. 104-134, 110 Stat. 1321-373).
The NRC has amended the CMP amounts under statutes it enforces (the AEA
and Program Fraud Civil Remedies Act) four times, most recently in 2008
(September 23, 2008; 73 FR 54671). An adjustment was not performed in
2012 because the FCPIAA required agencies to round their CMP amounts to
the nearest multiple of $1,000 or $10,000, depending on the size of the
CMP amount, and the 2012 adjustments based on the statutory formula
were small enough that no adjustment resulted.
On November 2, 2015, the FCPIAA was amended by the 2015
Improvements Act (Sec. 701, Pub. L. 114-74, 129 Stat. 599). The 2015
Improvements Act requires that the head of each agency through an
interim final rulemaking make an initial ``catch-up'' adjustment of the
CMPs assessed under statutes enforced by that agency by July 1, 2016,
to be effective no later than August 1, 2016. This initial catch-up
adjustment is to be calculated according to the percentage change
between the CPI for the month of October 2015 and the CPI for the month
of October of the calendar year when the CMP amount was last
established by some means other than a FCPIAA adjustment. The increase
for the initial catch up adjustment may not exceed 150 percent of the
CMP amount as of the date of the enactment of the 2015 Improvements
Act. Following the initial catch-up adjustment, agencies must continue
to adjust their CMPs by January 15 of each year. This calculation is
based on the percentage change between the CPI for the preceding month
of October and the CPI for the month of October in the preceding year.
All increases under the 2015 Improvements Act are to be rounded to the
nearest multiple of one dollar.
II. Discussion
Section 234 of the AEA limits civil penalties for violations of the
AEA to $100,000 per day, per violation (42 U.S.C. 2282). Congress
established the $100,000 amount in 1980 (Pub. L. 96-295, 94 Stat. 787).
As discussed in Section I, ``Background,'' of this
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document, the NRC has adjusted this amount (currently set at $140,000)
on four occasions since 1980, each time pursuant to the FCPIAA. For
purposes of calculating the initial catch-up adjustment under the 2015
Improvements Act, the relevant baseline year for AEA CMPs is 1980 (the
last time the CMP was established by some means other than a FCPIAA
adjustment). Using the formula in the 2015 Improvements Act, the
$100,000 amount established in 1980 will increase by 280.469 percent,
resulting in a new CMP figure of $280,469.\1\ The 2015 Improvements Act
caps the increase in penalty levels for the initial catch-up adjustment
at no more than 150 percent of the CMP level in effect as of November
2, 2015, which means the amount of increase for AEA CMPs cannot exceed
$210,000 (150 percent of the current $140,000 amount). A new CMP amount
of $280,469 is an increase of $140,469, which is within the limit
imposed by the 2015 Improvements Act. Therefore, the NRC is amending
Sec. 2.205 of title 10 of the Code of Federal Regulations (10 CFR) to
reflect a new maximum CMP under the AEA in the amount of $280,469 per
day, per violation.
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\1\ This figure is confirmed by guidance from the Office of
Management and Budget (OMB) concerning implementation of the 2015
Improvements Act. See OMB M-16-06, Implementation of the Federal
Civil Penalties Inflation Adjustment Act Improvements Act of 2015
(Feb. 24, 2016), available at https://www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m-16-06.pdf.
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Monetary penalties under the Program Fraud Civil Remedies Act were
established in 1986 at $5,000 per claim (Pub. L. 99-509, 100 Stat.
1938; 31 U.S.C. 3802). The NRC has adjusted this amount (currently set
at $7,000) multiple times pursuant to the FCPIAA since 1986. Using 1986
as the baseline year, the $5,000 amount will increase by 215.628
percent, resulting in a new CMP amount of $10,781. This is a $3,781
increase from the current $7,000 CMP amount, which is less than the
statutory cap of a $10,500 increase (150 percent of $7,000). Therefore,
the NRC is amending 10 CFR 13.3 to reflect a new maximum CMP amount of
$10,781 per claim.
As permitted by the 2015 Improvements Act, the NRC may apply these
increased CMP amounts to any penalties assessed by the agency after the
effective date of this interim final rule (August 1, 2016), regardless
of whether the associated violation occurred before or after this date
(Pub. L. 114-74, 129 Stat. 600; 28 U.S.C. 2461 note). Conforming
changes to the NRC Enforcement Policy (ADAMS Accession No. ML15029A148)
will be published in a forthcoming Federal Register notice before the
effective date of this interim final rule (August 1, 2016).
III. Procedural Background
This interim 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 interim final rule is unnecessary. Through the
FCPIAA and 2015 Improvements Act, Congress has provided a non-
discretionary statutory formula by which the NRC must adjust its CMPs
for inflation. Requesting public comment on these CMP adjustments,
which are required by statute, would not result in a different amount.
IV. Section-by-Section Analysis
Paragraph (j) in Sec. 2.205 is revised by replacing ``$140,000''
with ``$280,469''.
Paragraphs (a)(1)(iv) and (b)(1)(ii) in Sec. 13.3 are revised by
replacing ``$7,000'' with ``$10,781''.
V. Regulatory Flexibility Certification
Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the NRC
certifies that this interim final rule will not have a significant
economic impact on a substantial number of small entities.
VI. Regulatory Analysis
This interim final rule adjusts for inflation the maximum CMPs the
NRC may assess under the AEA and under the Program Fraud Civil Remedies
Act of 1986. The formula for determining the amount of the adjustment
is mandated by Congress in the FCPIAA, as amended by the 2015
Improvements Act (28 U.S.C. 2461 note). Congress passed this
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. Therefore,
these are the anticipated impacts of this rulemaking. Direct monetary
impacts fall only upon licensees or other persons subjected to NRC
enforcement for violations of the AEA and regulations and orders issued
under the AEA (10 CFR 2.205), 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).
VII. Backfit and Issue Finality
The NRC has not prepared a backfit analysis for this rulemaking.
This interim final rule does not involve any provision that would
impose a backfit, nor is it inconsistent with any issue finality
provision, as those terms are defined in 10 CFR chapter I. As mandated
by Congress, this interim final rule increases CMP amounts for
violations of already-existing NRC regulations and requirements. This
interim final rule does not modify any licensee system, structures,
components, designs, approvals, or procedures required for the design,
construction, or operation of any facility.
VIII. Plain Writing
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal
agencies to write documents in a clear, concise, and well-organized
manner. The NRC has written this document to be consistent with the
Plain Writing Act as well as the Presidential Memorandum, ``Plain
Language in Government Writing,'' published June 10, 1998 (63 FR
31883).
IX. National Environmental Policy Act
The NRC has determined that this interim 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 interim final rule.
X. Paperwork Reduction Statement
This interim final rule does not contain a collection of
information as defined in the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) and, therefore, is not subject to the requirements
of the Paperwork Reduction Act of 1995.
XI. Congressional Review Act
This interim final rule is a rule as defined in the Congressional
Review Act (5 U.S.C. 801-808). However, the Office of Management and
Budget has
[[Page 43021]]
not found it to be a major rule as defined in the Congressional Review
Act.
List of Subjects
10 CFR Part 2
Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Confidential business information;
Freedom of information, Environmental protection, Hazardous waste,
Nuclear energy, Nuclear materials, Nuclear power plants and reactors,
Penalties, Reporting and recordkeeping requirements, Sex
discrimination, Source material, Special nuclear material, Waste
treatment and disposal.
10 CFR Part 13
Administrative practice and procedure, Claims, Fraud, Organization
and function (Government agencies), Penalties.
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; 28 U.S.C. 2461 note; and 5 U.S.C. 552 and 553,
the NRC is adopting the following amendments to 10 CFR parts 2 and 13.
PART 2--AGENCY RULES OF PRACTICE AND PROCEDURE
0
1. The authority citation for part 2 is revised to read as follows:
Authority: Atomic Energy Act of 1954, secs. 29, 53, 62, 63, 81,
102, 103, 104, 105, 161, 181, 182, 183, 184, 186, 189, 191, 234 (42
U.S.C. 2039, 2073, 2092, 2093, 2111, 2132, 2133, 2134, 2135, 2201,
2231, 2232, 2233, 2234, 2236, 2239, 2241, 2282); Energy
Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 5841, 5846);
Nuclear Waste Policy Act of 1982, secs. 114(f), 134, 135, 141 (42
U.S.C. 10134(f), 10154, 10155, 10161); Administrative Procedure Act
(5 U.S.C. 552, 553, 554, 557, 558); National Environmental Policy
Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 3504 note.
Section 2.205(j) also issued under 28 U.S.C. 2461 note.
0
2. Amend Sec. 2.205 by revising 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 the imposition of
a civil penalty in an amount equal to the amount set forth in Section
234, may not exceed $280,469 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 is revised to read as follows:
Authority: 31 U.S.C. 3801 through 3812; 44 U.S.C. 3504 note.
Section 13.3 also issued under 28 U.S.C. 2461 note.
Section 13.13 also issued under 31 U.S.C. 3730.
0
4. Amend Sec. 13.3 by revising paragraphs (a)(1)(iv) and (b)(1)(ii) 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 $10,781 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 $10,781 for
each such statement.
* * * * *
Dated in Rockville, Maryland, this 20 day of June, 2016.
For the Nuclear Regulatory Commission.
Victor M. McCree,
Executive Director for Operations.
[FR Doc. 2016-15399 Filed 6-30-16; 8:45 am]
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