[Federal Register Volume 81, Number 141 (Friday, July 22, 2016)]
[Rules and Regulations]
[Pages 47689-47690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16476]


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NUCLEAR REGULATORY COMMISSION

10 CFR Chapter I

[NRC-2016-0134]


NRC Enforcement Policy

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy revision; issuance.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing a 
revision to its Enforcement Policy (Enforcement Policy or Policy) to 
reflect the new maximum civil penalty amount the agency can assess for 
a violation of the Atomic Energy Act of 1954, as amended (AEA), or any 
regulation or order issued under the AEA. By interim final rule, the 
NRC changed this amount from $140,000 to $280,469 per violation per 
day, as mandated by the Federal Civil Penalties Inflation Adjustment 
Act Improvements Act of 2015 (the 2015 Improvements Act). This action 
revises the Enforcement Policy so that dollar amounts in the policy 
correspond to the agency's revised civil penalty amount, and also 
provides guidance regarding instances where the NRC may exercise 
discretion in mitigating the amount of a civil penalty.

DATES: This revision to the Enforcement Policy is effective on August 
1, 2016. The Commission will apply the revised Enforcement Policy to 
any penalties assessed on and after the effective date; the penalty is 
not based on the date that the violation occurs.

ADDRESSES: Please refer to Docket ID NRC-2016-0134 when contacting the 
NRC about the availability of information regarding this action. You 
may obtain publicly-available information related to this document 
using any of the following methods:
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0134. 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

[[Page 47690]]

ADAMS Public Documents collection 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 in this document 
(if that document is available in ADAMS) is provided the first time 
that a document is referenced. The revised Enforcement Policy is 
available in ADAMS under Accession No. ML16197A561, and on the NRC's 
public Web site at http://www.nrc.gov/about-nrc/regulatory/enforcement/enforce-pol.html.
     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: Russell Arrighi, Office of 
Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001, telephone: 301-415-0205, email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On November 2, 2015, the President signed into law the 2015 
Improvements Act, which amended the Federal Civil Penalties Inflation 
Adjustment Act of 1990 (FCPIAA) and required all agencies to adjust for 
inflation their levels of civil monetary penalties via rulemaking by 
July 1, 2016, to be effective no later than August 1, 2016. In an 
interim final rule published in the Rules and Regulations section of 
the Federal Register (81 FR 43019; July 1, 2016), the NRC is amending 
its regulations to implement the 2015 Improvements Act by adjusting the 
amount in Sec.  2.205(j) of title 10 of the Code of Federal Regulations 
(10 CFR), according to a statutory formula based on the Consumer Price 
Index (CPI), from $140,000 to $280,469. This amount represents the new 
maximum civil penalty that the NRC may impose for a violation of the 
AEA, or any regulation or order issued under the AEA, per violation per 
day. Starting in January 2017, the 2015 Improvements Act also requires 
that the NRC make annual inflation adjustments to the maximum civil 
penalty amount in 10 CFR 2.205, rounded to the nearest multiple of $1.
    To incorporate the updated maximum civil penalty amount specified 
in its regulations, the NRC is issuing a revision to its Enforcement 
Policy (ADAMS Accession No. ML16197A561). Specifically, the NRC is 
updating Table A in Section 8.0, ``Table of Base Civil Penalties,'' 
which currently lists $140,000 as the maximum civil penalty amount the 
agency may assess for the most significant severity level of violation. 
To promote regulatory certainty and save NRC staff resources by 
lessening the chances that the Enforcement Policy will have to be 
revised on an annual basis alongside 10 CFR 2.205 resulting from minor 
increases in inflation (less than one half percent), the maximum civil 
penalty amount in the revised Table A will be calculated by rounding 
the maximum civil penalty amount in 10 CFR 2.205 down to the nearest 
multiple of $10,000 (assuming the amount in 10 CFR 2.205 is not already 
a multiple of $10,000). Therefore, the new maximum civil penalty in 
Table A is now $280,000, rounded down from $280,469. The 2015 
Improvements Act does not limit the Commission's authority to exercise 
discretion and assess civil penalty levels below the statutory maximum, 
and the gains to be realized from a more stable table of base civil 
penalties outweighs any arguable loss of deterrent effect from rounding 
this maximum figure down, at most, $9,999 in a given year. Additionally 
(and as stated in the Preface to the Enforcement Policy), this is a 
statement of policy, not regulation, and the Commission still reserves 
the right to deviate from the Enforcement Policy where particular 
circumstances warrant and assess the full statutory maximum.
    The revised Table A in Section 8.0 of the Enforcement Policy also 
now includes a note explaining how the table's maximum civil penalty 
amount is generated as a result of rounding down from the number in 10 
CFR 2.205. The note also explains that other amounts listed in the 
table have been adjusted to maintain the same proportional relationship 
between penalties. The revised table also now includes a footnote 
explaining that the maximum civil penalty is adjusted on an annual 
basis to put the regulated community on notice that the NRC may 
periodically update the amount in 10 CFR 2.205 pursuant to the 2015 
Improvements Act, which would necessitate a change to the amounts in 
Table A in Section 8.0 of the Enforcement Policy. In the event of such 
an update, the NRC may assess civil penalties consistent with the 
updated amount in 10 CFR 2.205 even if it has not yet performed an 
update to Table A (though the NRC will strive to provide timely updates 
of the Enforcement Policy when necessitated by updates to 10 CFR 
2.205). Additionally, as stated in Section 6 of the FCPIAA (28 U.S.C. 
2461 note), when the NRC increases civil penalty amounts through 
rulemaking pursuant to the 2015 Improvements Act, it will apply those 
increased amounts when assessing any penalty after the effective date 
of that rulemaking, regardless of whether the underlying violation 
occurred before that effective date.
    The NRC is not adjusting the civil penalty amounts in Table A for 
the ``loss, abandonment, or improper transfer of disposal of regulated 
material, regardless of the use or type of licensee,'' other than to 
note that these values will be periodically reviewed and updated, since 
these civil penalty amounts are determined by the estimated or actual 
cost of authorized disposal.
    Lastly, because the agency's authority to issue civil penalties for 
violations of the AEA has more than doubled as a result of the 2015 
Improvements Act, the NRC is also including new language in Section 3.6 
of the Enforcement Policy, ``Use of Discretion in Determining the 
Amount of a Civil Penalty,'' to confirm that, notwithstanding the 
outcome of the normal civil penalty process, the agency may take into 
account mitigating factors based on the merits of an individual case, 
including the ability of various classes of licensees to pay. It is not 
the NRC's intention that the economic impact of a civil penalty be so 
severe that it adversely affects a licensee's ability to safely conduct 
licensed activities or puts a licensee out of business. Section 3.6 now 
allows NRC staff to consider enforcement discretion for cases where 
there is a concern that imposition of a base civil penalty would be 
overly punitive rather than a deterrent for the individual or licensee.

II. Congressional Review Act

    This policy statement is a rule as defined in the Congressional 
Review Act (5 U.S.C. 801-808). However, the Office of Management and 
Budget has not found it to be a major rule as defined in the 
Congressional Review Act.

    Dated at Rockville, Maryland, this 6th day of July, 2016.

    For the Nuclear Regulatory Commission.
Andrew L. Bates,
Acting, Secretary of the Commission.
[FR Doc. 2016-16476 Filed 7-21-16; 8:45 a.m.]
 BILLING CODE 7590-01-P