[Federal Register Volume 62, Number 169 (Tuesday, September 2, 1997)]
[Rules and Regulations]
[Pages 46181-46184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23212]


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DEPARTMENT OF ENERGY

10 CFR Parts 207, 218, 430, 490, 501, 601, 820, 1013, 1017, and 
1050

RIN 1901-AA76


Office of General Counsel; Inflation Adjustment of Civil Monetary 
Penalties

AGENCY: Office of General Counsel, Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (``DOE'') is issuing this final non-
discretionary rule to adjust DOE's civil monetary penalties (``CMPs'') 
for inflation as mandated by the Debt Collection Improvement Act of 
1996. This rule adjusts CMPs within the jurisdiction of the DOE to the 
maximum extent allowed by the Federal Civil Penalties Inflation 
Adjustment Act of 1990, as amended by the Debt Collection Improvement 
Act of 1996.

EFFECTIVE DATE: October 2, 1997.

FOR FURTHER INFORMATION CONTACT: Stephen Duarte, U.S. Department of 
Energy, Office of General Counsel, GC-74, 1000 Independence Avenue, SW, 
Washington, DC 20585, (202) 586-9507.

SUPPLEMENTARY INFORMATION:

I. Background

    In order to preserve the deterrent effect of civil penalties and 
foster compliance with the law, the Federal Civil Penalties Inflation 
Adjustment Act of 1990, 28 U.S.C. 2461 note, as amended by the Debt 
Collection Improvement Act of 1996 (Pub. L. 104-134) (``the Act''), 
requires Federal agencies to regularly adjust each CMP provided by law 
within the jurisdiction of the agency. The Act requires each agency to 
make an initial inflationary adjustment for all applicable civil 
penalties within 180 days of the enactment of the statute, and to make 
further adjustments at least once every four years.
    The Act provides that any increase in a CMP due to the calculated 
inflation adjustments shall apply only to violations that occur after 
the date the increase takes effect and states that the initial 
inflation adjustment may not exceed 10 percent of the existing penalty.

II. Method of Calculation

    Under the Act, the inflation adjustment for each applicable CMP is 
determined by increasing the maximum civil penalty amount per violation 
by the cost-of-living adjustment. The ``cost-of-living'' adjustment is 
defined as the amount by which 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 year in which the amount of such civil 
penalty was last set or adjusted pursuant to law. Any calculated 
increase under this adjustment is rounded to the nearest--
    (1) Multiple of $10 in the case of penalties less than or equal to 
$100;
    (2) Multiple of $100 in the case of penalties greater than $100 but 
less than or equal to $1,000;
    (3) Multiple of $1000 in the case of penalties greater than $1000 
but less than or equal to $10,000;
    (4) Multiple of $5000 in the case of penalties greater than $10,000 
but less than or equal to $100,000;
    (5) Multiple of $10,000 in the case of penalties greater than 
$100,000 but less than or equal to $200,000; and
    (6) Multiple of $25,000 in the case of penalties greater than 
$200,000.

28 U.S.C. 2461 note, sec. 5.
    For example, pursuant to section 13262 of Title 42 of the United 
States Code, the DOE may impose a civil penalty of up to $5,000 per 
violation against any person who violates certain sections of the 
Energy Policy Act of 1992 or any regulation issued under such sections. 
This civil penalty was set in 1992 and has not been adjusted. The CPI 
for June 1996 is 156.7 and 140.2 for June 1992. The inflation factor is 
156.7/140.2, or 1.117689. The maximum penalty amount after the increase 
would be $ 5588.45 and after rounding would be $ 6,000. After applying 
the 10 percent limit on an initial increase, however, the new maximum 
penalty amount per violation is $5,500. DOE made a similar calculation 
for each CMP adjusted in this rulemaking.

III. Explanation of Final Rule

    The following list summarizes the existing DOE regulations 
containing civil monetary penalties, and the penalties before and after 
adjustment.


10 CFR 207.7....................  ..............................  $2,500.......................  2,750          
10 CFR 218.42...................  ..............................  5,000........................  5,500          
10 CFR 430.61...................  ..............................  100..........................  110            
10 CFR 490.604..................  ..............................  5,000........................  5,500          

[[Page 46182]]

                                                                                                                
10 CFR 501.181(c)...............  ..............................  25,000.......................  27,500         
                                  ..............................  3/mcf........................  3.3/mcf        
                                  ..............................  10/bbl.......................  11/bbl         
10 CFR 601.400 and App A........  minimum.......................  10,000.......................  11,000         
                                  maximum.......................  100,000......................  110,000        
10 CFR 1013.3...................  ..............................  5,000........................  5,500          
10 CFR 1017.18..................  ..............................  100,000......................  110,000        
10 CFR 1050.303.................  ..............................  5,000........................   5,500         
                                                                                                                

    In addition, Section 18 of the Price-Anderson Amendments Act of 
1988, 42 U.S.C. 2282a, authorizes DOE to impose civil monetary 
penalties of up to $100,000 on certain persons for violation of DOE 
nuclear safety requirements in any applicable rule, regulation or 
order. The maximum penalty amount was enacted in 1988 and has not been 
adjusted. Since section 18 is perfectly clear, the implementing 
regulations at 10 CFR part 820 do not include a section on the maximum 
penalty amount. However, the $100,000 limit is reflected in the DOE's 
General Statement of Enforcement Policy published as Appendix A to 10 
CFR 820. In this rule, DOE is adding a new subpart G to 10 CFR Part 820 
to set the maximum penalty as adjusted using the methodology described 
above.
    Finally, the National Defense Authorization Act for Fiscal Years 
1992 and 1993 authorizes civil penalties against any contractor of DOE 
who fails to provide for the training of individuals involved in 
hazardous substance response or emergency response at DOE nuclear 
weapons facilities or who fails to certify such training. 42 U.S.C. 
7274d Section 7274d(b)(2) establishes the maximum civil penalty as 
$5000 per day for each violation. DOE is developing a rule to implement 
42 U.S.C. 7274d and will adjust the penalty authorized by that statute 
when it promulgates that rule.

IV. Regulatory Review

A. Administrative Procedure Act

    In accordance with 5 U.S.C. 553(b), the Administrative Procedure 
Act, DOE generally publishes a rule in a proposed form and solicits 
public comment on it before issuing the rule in final. However, 5 
U.S.C. 553(b)(3)(B) provides an exception to the public comment 
requirement if the agency finds good cause to omit advance notice and 
public participation. Good cause is shown when public comment is 
``impracticable, unnecessary, or contrary to the public interest.''
    DOE finds that providing an opportunity for public comment prior to 
publication of this rule is not necessary because DOE is carrying out a 
ministerial, non-discretionary duty specified in an Act of Congress. 
This rule incorporates requirements specifically set forth in 28 U.S.C. 
2461 note requiring DOE to issue a regulation implementing inflation 
adjustments for all its civil penalty provisions. The formula for the 
amount of the penalty adjustment is prescribed by Congress. Prior 
notice and opportunity to comment are therefore unnecessary in this 
case because these changes are not subject to the exercise of 
discretion by DOE. These technical changes, required by law, do not 
substantively alter the existing regulatory framework nor in any way 
affect the terms under which DOE assesses civil penalties.

B. Review Under Executive Order 12866

    Today's action does not constitute a ``significant regulatory 
action'' as defined in section 3(f) of Executive Order 12866, 
``Regulatory Planning and Review'' (58 FR 51735), and has not been 
reviewed by the Office of Information and Regulatory Affairs of the 
Office of Management and Budget.

C. Review Under the Paperwork Reduction Act.

    No new information collection requirements subject to the Paperwork 
Reduction Act, 44 U.S.C. 501 et seq. are imposed by today's regulatory 
action.

D. Federalism

    The Department has analyzed this rulemaking in accordance with the 
principles and criteria contained in Executive Order 12612, and has 
determined that there are no federalism implications that would warrant 
the preparation of a Federalism Assessment.

E. National Environmental Policy Act

    This rule amends Title 10 of the Code of Federal Regulations to 
adjust civil monetary penalties within the jurisdiction of the DOE. The 
regulations being amended have no current environmental effect and this 
rulemaking will not change that status quo. The Department has 
therefore determined that this rule is covered under the Categorical 
Exclusion found at paragraph A.5 of Appendix A to subpart D, 10 CFR 
part 1021, which applies to a rulemaking amending an existing 
regulation that does not change the environmental effect of the 
regulation being amended. Accordingly, neither an environmental 
assessment nor an environmental impact statement is required.

F. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 requires each 
agency to assess the effects of Federal regulatory action on State, 
local, and tribal governments and the private sector. Section 201 
excepts agencies from assessing effects on State, local or tribal 
governments or the private sector of rules that incorporate 
requirements specifically set forth in law. Since this rule 
incorporates requirements specifically set forth in 28 U.S.C. 2461 
note, the DOE is not required to assess its regulatory effects under 
Section 201. Unfunded Mandates Reform Act sections 202 and 205 do not 
apply to today's action because they apply only to rules for which a 
general notice of proposed rulemaking is published. Nevertheless, the 
Department has determined that today's regulatory action does not 
impose a Federal mandate on State, local, or tribal governments or on 
the public sector.

G. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., directs 
agencies to prepare a regulatory flexibility analysis whenever an 
agency is required to publish a general notice of proposed rulemaking 
for a rule. As discussed above, the Department has determined, that 
prior notice and opportunity for public comment is unnecessary and 
contrary to the public interest. In accordance with 5 U.S.C. 604(a), no 
regulatory flexibility analysis has been prepared for today's rule.

H. Small Business Regulatory Enforcement Fairness Act

    In accordance with section 801 of the Small Business Regulatory 
Enforcement Act of 1996, 5 U.S.C. 801, DOE will report to Congress the 
promulgation of this rule prior to its effective date. This rule is a 
not a ``major rule'' as defined by 5 U.S.C. 804(a).

List of Subjects

10 CFR Part 207

    Administrative practice and procedure, Energy, Penalties.

[[Page 46183]]

10 CFR Part 218

    Administrative practice and procedure, Penalties, Petroleum 
allocation.

10 CFR Part 430

    Administrative practice and procedure, Energy conservation.

10 CFR Part 490

    Administrative practice and procedure, Energy conservation, 
Penalties.

10 CFR Part 501

    Administrative practice and procedure, Electric power plants, 
Energy conservation, Natural gas, Petroleum.

10 CFR Part 601

    Government contracts, Grant programs, Loan programs, Penalties.

10 CFR Part 820

    Government contracts, DOE contracts, Nuclear safety, Civil penalty.

10 CFR Part 1013

    Administrative practice and procedure, Claims, Fraud, Penalties.

10 CFR Part 1017

    Administrative practice and procedure, National Defense, Nuclear 
Energy, Penalties.

10 CFR Part 1050

    Decorations, medals, awards, Government employees.

    Issued in Washington, D.C. on July 18, 1997.
Mary Anne Sullivan,
Acting General Counsel.

    For the reasons set forth in the preamble, 10 CFR chapters II, III, 
and X are amended to read as follows:

PART 207--COLLECTION OF INFORMATION

    1. The authority citation for part 207 is revised to read as 
follows:

    Authority: 15 U.S.C. 787 et seq.; 15 U.S.C. 791 et seq.; E.O. 
11790, 39 FR 23185; 28 U.S.C. 2461 note.

    2. Section 207.7 is amended by revising the first sentence of 
paragraph (c)(1) to read as follows:


Sec. 207.7  Sanctions.

* * * * *
    (c) Civil Penalties. (1) Any person who violates any provision of 
this subpart or any order issued pursuant thereto shall be subject to a 
civil penalty of not more than $2,750 for each violation. * * *
* * * * *

PART 218--STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION

    3. The authority citation for part 218 is revised to read as 
follows:

    Authority: 15 U.S.C. 751 et seq.; 15 U.S.C. 787 et seq.; 42 
U.S.C. 6201 et seq.; 42 U.S.C. 7101 et seq.; E.O. 11790, 39 FR 
23185; E.O. 12009, 42 FR 46267; 28 U.S.C. 2461 note.

    4. Section 218.42 is amended by revising paragraphs (b)(1) (b)(2) 
and (b)(3) to read as follows:


Sec. 218.42  Sanctions.

* * * * *
    (b) Penalties. (1) Any person who violates any provision of part 
218 of this chapter or any order issued pursuant thereto shall be 
subject to a civil penalty of not more than $5,500 for each violation.
    (2) Any person who willfully violates any provision of this part 
218 or any order issued pursuant thereto shall be subject to a fine of 
not more than $10,000 for each violation.
    (3) Any person who knowingly and willfully violates any provision 
of this part 218 or any order issued pursuant thereto with respect to 
the sale, offer of sale, or distribution in commerce of oil in commerce 
after having been subject to a sanction under paragraph (b)(1) or (2) 
of this section for a prior violation of the provisions of this part 
218 or any order issued pursuant thereto with respect to the sale, 
offer of sale, or distribution in commerce of oil shall be subject to a 
fine of not more than $50,000 or imprisonment for not more than six 
months, or both, for each violation.
* * * * *

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

    5. The authority citation for part 430 is revised to read as 
follows:

    Authority: 42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.

    6. Section 430.61 is amended by revising the first sentence of 
paragraph (b) to read as follows:


Sec. 430.61  Prohibited acts.

* * * * *
    (b) In accordance with section 333 of the Act, any person who 
knowingly violates any provision of paragraph (a) of this section may 
be subject to assessment of a civil penalty of no more than $110 for 
each violation. * * *

PART 490--ALTERNATIVE FUEL TRANSPORTATION PROGRAM

    7. The authority citation for part 490 is revised to read as 
follows:

    Authority: 42 U.S.C. 7191, 13211, 13235, 13251, 13257, 13258, 
13260-3; 28 U.S.C. 2461 note.

    8. Section 490.604 is amended by revising paragraph (a) to read as 
follows:


Sec. 490.604  Penalties and Fines.

    (a) Civil Penalties. Whoever violates Sec. 490.603 of this part 
shall be subject to a civil penalty of not more than $5,500 for each 
violation.
* * * * *

PART 501--ADMINISTRATIVE PROCEDURES AND SANCTIONS

    9. The authority citation for part 501 is revised to read as 
follows:

    Authority: 42 U.S.C. 7101 et seq.; 42 U.S.C. 8301 et seq.; 42 
U.S.C. 8701 et seq.; E.O. 12009, 42 FR 46267; 28 U.S.C. 2461 note.

    10. Section 501.181 is amended by revising paragraph (c)(1) to read 
as follows:


Sec. 501.181  Sanctions.

* * * * *
    (c) Civil Penalties. (1) Any person who violates any provisions of 
the Act (other than section 402) or any rule or order thereunder will 
be subject to the following civil penalty, which may not exceed $27,500 
for each violation: Any person who operates a powerplant or major fuel 
burning installation under an exemption, during any 12-calendar-month 
period, in excess of that authorized in such exemption will be assessed 
a civil penalty of up to $3.30 for each MCF of natural gas or up to $11 
for each barrel of oil used in excess of that authorized in the 
exemption.
* * * * *

PART 601--NEW RESTRICTIONS ON LOBBYING

    11. The authority citation for part 601 is revised to read as 
follows:

    Authority: 31 U.S.C. 1352; 42 U.S.C. 7254 and 7256; 31 U.S.C. 
6301-6308; 28 U.S.C. 2461 note.

    12. Section 601.400 is amended by revising paragraphs (a), (b) and 
(e) to read as follows:


Sec. 601.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than $11,000 and not more than 
$110,000 for each such expenditure.
    (b) Any person who fails to file or amend the disclosure form (see 
appendix B) to be filed or amended if required herein, shall be subject 
to a civil penalty of not less than $11,000

[[Page 46184]]

and not more than $110,000 for each such failure.
* * * * *
    (e) First offenders under paragraphs (a) or (b) of this section 
shall be subject to a civil penalty of $11,000, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $11,000 and $110,000, 
as determined by the agency head or his or her designee.
* * * * *
    13. Appendix A to part 601-Certification Regarding Lobbying, is 
amended as follows:
    a. In the section titled ``Certification for Contracts, Grants, 
Loans, and Cooperative Agreements'', paragraph (3), the last sentence 
of the second undesignated paragraph is revised; and
    b. In the section titled ``Statement for Loan Guarantees and Loan 
Insurance'', the last sentence in the third undesignated paragraph is 
revised to read as follows:

Appendix A to Part 601--Certification Regarding Lobbying

Certification for Contracts, Grants, Loans, and Cooperative 
Agreements

* * * * *
    (3) * * * Any person who fails to file the required 
certification shall be subject to a civil penalty of not less than 
$11,000 and not more than $110,000 for each such failure.

Statement for Loan Guarantees and Loan Insurance

* * * * *
    * * * Any person who fails to file the required statement shall 
be subject to a civil penalty of not less than $11,000 and not more 
than $110,000 for each such failure.

PART 820--PROCEDURAL RULES FOR DOE NUCLEAR ACTIVITIES

    14. The authority citation for part 820 is revised to read as 
follows:

    Authority: 42 U.S.C. 2201, 2282(a), 7191; 28 U.S.C. 2461 note.

    15. A new subpart G is added to part 820 to read as follows:

Subpart G--Civil Penalties

820.80  Basis and purpose.
820.81  Amount of penalty.

Subpart G--Civil Penalties


Sec. 820.80  Basis and purpose.

    This subpart implements the Federal Civil Penalties Inflation 
Adjustment Act of 1990 (the Act) (Pub. L. 101-410), as amended by the 
Debt Collection Improvement Act of 1996 (Pub. L. 104-134, section 
31001). 28 U.S.C. 2461 note. As amended, the Act requires each agency 
head to adjust by regulation each civil monetary penalty provided by 
law within the jurisdiction of the Federal agency by the inflation 
adjustment specified in 28 U.S.C. 2461 note. This subpart increases the 
civil penalty amount specified in 42 U.S.C. 2282a.


Sec. 820.81  Amount of penalty.

    Any person subject to a penalty under 42 U.S.C. 2282a shall be 
subject to a civil penalty in an amount not to exceed $110,000 for each 
such violation. If any violation under 42 U.S.C. 2282a is a continuing 
one, each day of such violation shall constitute a separate violation 
for the purpose of computing the applicable civil penalty.

PART 1013--PROGRAM FRAUD CIVIL REMEDIES AND PROCEDURES

    16. The authority citation for part 1013 is revised to read as 
follows:

    Authority: 31 U.S.C. 3801-3812; 28 U.S.C. 2461 note.

    17. Section 1013.3 is amended by revising paragraphs (a)(1)(iv) and 
(b)(1)(ii) to read as follows:


Sec. 1013.3  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 $5,500 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 $5,500 for 
each such statement.
* * * * *

PART 1017--IDENTIFICATION AND PROTECTION OF UNCLASSIFIED CONTROLLED 
NUCLEAR INFORMATION

    18. The authority citation for part 1017 is revised to read as 
follows:

    Authority: 42 U.S.C. 2168; 28 U.S.C. 2461 note.

    19. Section 1017.18 is amended by revising the last sentence of the 
introductory text to paragraph (a) to read as follows:


Sec. 1017.18  Violations.

    (a) Civil Penalty. * * * The Assistant Secretary for Defense 
Programs may recommend to the Secretary imposition of this civil 
penalty, which shall not exceed $110,000 for each violation.
* * * * *

PART 1050--FOREIGN GIFTS AND DECORATIONS

    20. The authority citation for part 1050 is revised to read as 
follows:

    Authority: The Constitution of the United States, Article I, 
Section 9; 5 U.S.C. 7342; 22 U.S.C. 2694; 42 U.S.C. 7254 and 7262; 
28 U.S.C. 2461 note.

    21. Section 1050.303 is amended by revising the last sentence in 
paragraph (d) to read as follows:


Sec. 1050.303  Enforcement.

* * * * *
    (d) * * * The court in which such action is brought may assess a 
civil penalty against such employee in any amount not to exceed the 
retail value of the gift improperly solicited or received plus $5,500.

[FR Doc. 97-23212 Filed 8-29-97; 8:45 am]
BILLING CODE 6450-01-P