864 Federal Register / Vol. 89, No. 5 / Monday, January 8, 2024 / Rules and Regulations 

1Executive Order 14008, ‘‘Tackling the Climate 

Crisis at Home and Abroad,’’ January 27, 2021. 2North American Electric Reliability Corporation, 

2022 Summer Reliability Assessment at 4 (May 

2022), https://www.nerc.com/pa/RAPA/ra/ 

Reliability%20Assessments%20DL/NERC_SRA_

2022.pdf. 

DEPARTMENT OF ENERGY 

10 CFR Part 612 

RIN 1901–AB57 

Civil Nuclear Credit Program and 

Recapture of Credits 

AGENCY: Grid Deployment Office, 

Department of Energy. 

ACTION: Interim final rule and request 

for comment. 

SUMMARY: The Department of Energy 

(DOE or the Department) publishes this 

interim final rule to establish the 

procedure for the recapture of credits 

awarded under the Civil Nuclear Credit 

Program in accordance with the 

Infrastructure Investment and Jobs Act. 

DATES: This rule is effective on January 

8, 2024. Written comments must be 

received by February 7, 2024. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Theodore Taylor, Civil Nuclear Credit 

Program Manager, U.S. Department of 

Energy, Office of Nuclear Energy, 1000 

Independence Avenue SW, Washington, 

DC 20585, (240) 477–0458, CNC_

Program_Mailbox@hq.doe.gov. 

ADDRESSES: DOE encourages submission 

of comments electronically through the 

Federal eRulemaking Portal: 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Alternatively, interested persons may 

submit hard copy written comments 

(preferably an original and two copies), 

identified by RIN 1901–AB57, by postal 

mail to the Grid Deployment Office, 

Civil Nuclear Credit Program, Attention: 

Mr. Theodore Taylor, Department of 

Energy, 1000 Independence Avenue 

SW, Washington, DC 20585. Because 

postal mail may be subject to processing 

delay, it is recommended that comments 

be submitted electronically. All 

comments should be captioned with 

‘‘Civil Nuclear Credit Program and 

Recapture of Credits Interim Final Rule 

Comments.’’ Please include your name, 

organization affiliation, address, email 

address and telephone number in your 

comment. In general, comments 

received will be posted on 

www.regulations.gov without change, 

including any business or personal 

information provided. Comments 

received, including attachments and 

other supporting materials, will be part 

of the public record and subject to 

public disclosure. Do not enclose any 

information in your comment or 

supporting materials that you consider 

confidential or inappropriate for public 

disclosure. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Summary of the Interim Final Rule 

II. Authority and Background 

A. The Statute 

B. Recapture of Credits 

C. CNC Guidance 

III. Notice of Intent and Request for 

Information 

A. Request for Information 

B. Comments on Recapture and Annual 

Adjustment 

1. Scope of Recapture Regulation 

2. Inclusion in the CNC Program of an 

Annual Adjustment Mechanism 

3. Relationship of Annual Adjustment 

Mechanism and Recapture Regulation 

IV. Section by Section Analysis of the Interim 

Final Rule 

A. Purpose, Applicability, and Definitions 

B. Recapture 

C. Notice and Reconsideration of Recapture 

Determination 

D. Petition to the Department’s Office of 

Hearings and Appeals 

V. Interim Final Rulemaking 

VI. Procedural Requirements 

A. Review Under Executive Orders 12866, 

13563, and 14094 

B. Executive Order 13132 

C. Administrative Procedure Act 

D. National Environmental Policy Act of 

1969 

E. Paperwork Reduction Act of 1995 

F. Regulatory Flexibility Act 

G. Executive Order 12988 

H. Unfunded Mandates Reform Act of 1995 

I. Treasury and General Government 

Appropriations Act, 1999 

J. Treasury and General Government 

Appropriations Act, 2001 

K. Executive Order 13211 

L. Congressional Notification 

VII. Approval of the Office of the Secretary 

I. Summary of the Interim Final Rule 

Section 40323 of the Infrastructure 

Investment and Jobs Act (IIJA) (Pub. L. 

117–58), codified at 42 U.S.C. 18753, 

also known as the Bipartisan 

Infrastructure Law, directs the 

Department to establish the Civil 

Nuclear Credit Program (CNC Program) 

to prevent premature closures of nuclear 

power plants by providing financial 

support for existing nuclear reactors 

projected to cease operations due to 

economic factors. 

The IIJA also directs the Department 

to promulgate a regulation to provide for 

the recapture of credits awarded to a 

nuclear reactor if either (a) the nuclear 

reactor terminates operations during the 

4-year award period or (b) the nuclear 

reactor does not operate at an annual 

loss in the absence of an allocation of 

credits. The purpose of this interim final 

rule is to establish the procedure for the 

recapture of credits for the first 4-year 

award period, for which applications 

were due September 6, 2022. While the 

elements of the CNC Program are 

broadly described below, this interim 

final rule itself is limited to the narrow 

circumstance where a certified nuclear 

reactor has met the criteria for the 

recapture of credits. The rule provides 

a mechanism for the Department to 

enforce the obligation of the nuclear 

reactor to continue operation during the 

4-year award period and to relinquish 

its rights to credits if the nuclear reactor 

is not operating at a loss in the absence 

of the credits. To minimize the 

likelihood for the need to recapture 

credits under the rule, the Department 

has included in the CNC Program an 

audit and annual payment adjustment 

mechanism at the end of each award 

year during the 4-year award period to 

evaluate the financial results of 

operation for that year and to adjust 

payment of credits based on that 

evaluation. The recapture regulation 

ensures that a reactor cannot retain the 

value of credits if, despite the annual 

adjustment, the nuclear reactor would 

not have operated at an annual loss in 

the absence of an allocation of credits 

over the 4-year award period or if the 

nuclear reactor terminates operations 

despite its contractual obligation to 

operate for the entire 4-year award 

period. 

II. Authority and Background 

A. The Statute 

Section 40323 of the IIJA directs the 

Department to establish the CNC 

Program to provide financial support for 

existing nuclear reactors projected to 

cease operations due to economic 

factors in the form of credits to be 

awarded for a 4-year award period. The 

IIJA appropriates $6 billion for the CNC 

Program. The CNC Program will make 

meaningful progress towards a carbon 

pollution-free electricity sector by 2035, 

help ‘‘deliver an equitable, clean energy 

future, and put the United States on a 

path to achieve net-zero emissions, 

economy-wide, by no later than 2050 to 

the benefit of all Americans.’’ 1 In 

addition, the CNC Program—by 

preventing shutdown of the existing 

nuclear fleet—allows the bulk power 

system to retain firm, reliable capacity 

that is urgently needed in the face of 

extreme weather and drought.2

B. Recapture of Credits 

Section 40323(g)(2) of the IIJA 

requires that the Secretary, ‘‘by 

regulation, provide for the recapture of 

the allocation of any credit to a certified 


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3 IIJA section 40323(g)(2). 

4 IIJA section 40323(b). 

5Notice of Availability of Guidance for the First 

Award Period of the Civil Nuclear Credit Program, 

87 FR 24291 (April 25, 2022). The Guidance, 

including both the initial Guidance and the 

Amended Guidance, is posted at https://

www.energy.gov/ne/civil-nuclear-credit-program. 

Citations herein to specific pages of the Guidance 

refer to the Amended Guidance available at 

Microsoft Word—US DOE CNC Guidance-Revision 

1-June 2022 (energy.gov). 

6 87 FR 8570 (Feb. 15, 2022). 

7 Id. at 87 FR 8572. 8 Id. 

9 Id. 

10 Id. 

11 Id. at 87 FR 8572 and 8574. 

12All comments are available at 

www.regulations.gov. 

13NIRS at 6. 

14 Green Scissors Comments at 2. 

15Ur-Energy comments at 2. 

16Energy Harbor Comments at 19. 

17Energy Harbor Comments at 19. 

18Energy Harbor Comments at 19–20. 

nuclear reactor that during [the 4-year 

award period]—(A) terminates 

operations; or (B) does not operate at an 

annual loss in the absence of an 

allocation of credits to the certified 

nuclear reactor.’’ 3 This interim final 

rule establishes the procedure for the 

recapture of credits in accordance with 

that requirement. This interim final rule 

relates only to the recapture provision. 

No other provision of the CNC Program 

is subject to implementation by 

regulation. 

C. CNC Guidance 

The IIJA directed the Secretary to 

establish the CNC Program.4 In order to 

meet this direction, the Department on 

April 19, 2022, issued Guidance for the 

Civil Nuclear Credit Program and issued 

Amended Guidance on June 30, 2022 

(the initial Guidance as revised by the 

Amended Guidance, including each of 

the attachments thereto, is referred to 

herein as the Guidance).5 The Guidance 

describes the timelines, deliverables, 

and other requirements for owners or 

operators of nuclear reactors that are 

projected to cease operations due to 

economic factors to submit certification 

applications to become certified nuclear 

reactors, and instructions on 

formulating and submitting sealed bids 

to receive credit allocations. The 

Guidance is applicable to the first in a 

series of annual award cycles that the 

Department will conduct to implement 

the CNC Program. The deadline for the 

first award period certification 

applications and bid submissions was 

September 6, 2022. The Department 

intends to issue updated Guidance for 

each subsequent award period. The 

Department may enter into a binding 

agreement establishing the terms of the 

award and payment of credits with each 

owner or operator whose application is 

certified and whose bid is accepted by 

the Department (referred to herein as the 

Award Agreement). 

III. Notice of Intent and Request for 

Information 

A. Request for Information 

On February 15, 2022, the Department 

published a Notice of Intent and 

Request for Information Regarding 

Establishment of a Civil Nuclear Credit 

Program (RFI).6 The RFI explained 

DOE’s proposed structure of the CNC 

Program and included a description of 

the subjects and the issues relevant to 

the recapture requirement. The RFI 

described the requirement in the IIJA 

that DOE provide for recapture of 

allocated credits if the nuclear reactor 

terminated operations or if it did ‘‘not 

operate at an annual loss in the absence 

of an allocation of credits.’’ 7 As the 

Department explained, it proposed to 

include an annual settlement 

mechanism through which the value of 

a reactor’s credit allocation would be 

adjusted if actual economic performance 

varies from projections underlying the 

credits awarded.8 The Department 

anticipated that an annual adjustment 

mechanism would reduce the need for 

recapture by ensuring that the annual 

payout of credits would track the actual 

operating loss of the nuclear reactor, 

subject to a cap on annual value of 

credits established at the time of 

award.9 The Department recognized that 

the recapture of credits would 

nevertheless be required ‘‘[i]f an 

adjustment to allocated credits 

[pursuant to the annual adjustment 

process] is not possible despite material 

changes in economic performance, or if 

the reactor terminates operations.’’ 10

The RFI requested interested persons 

to provide feedback on the elements of 

the CNC Program, including recapture, 

and propounded specific questions on 

the conduct of periodic audits and the 

annual resetting of the value of credits 

to be paid out based on actual 

revenues.11 More than 120 responses 

were received representing a broad array 

of interests and viewpoints, including 

from individuals, Federal elected 

officials, State public utility 

commissions and other State officials, 

trade associations, owners and operators 

of nuclear generators, uranium 

suppliers, and a number of public 

interest groups. 

B. Comments on Recapture and Annual 

Adjustment 

Discussed underneath are comments 

received in response to the RFI related 

to the recapture of credits that is the 

subject of this interim final rule.12

Although Congress directed the 

Department to adopt a regulation only 

with respect to the recapture provision, 

the Department is also addressing 

comments on the annual adjustment 

mechanism and certain other terms 

identified in the RFI to the extent those 

provisions may be relevant to operation 

of the recapture mechanism. 

1. Scope of Recapture in Regulation 

(a) Comments Received 

The Department received a number of 

comments on the recapture provision in 

response to the RFI. Some parties 

suggested that the scope of the recapture 

provision should be expanded to 

mandate recapture for circumstances in 

addition to nuclear reactor termination 

of operations and failure to operate at an 

annual loss in the absence of an 

allocation of credits. Nuclear 

Information and Resource Service 

(NIRS) recommended that the 

Department ‘‘include a provision to 

recapture credits if the Nuclear 

Regulatory Commission (NRC), at a later 

date, finds violations or safety 

performance problems that would have 

caused the reactor’’ to fail to meet the 

certification criteria related to safety.13

The Green Scissors coalition made a 

similar recommendation, suggesting that 

the Department ‘‘review any violations 

and safety performance findings issued 

by the Nuclear Regulatory Commission 

. . . , and determine if the award 

should be discontinued and if any 

amounts must be recaptured.’’ 14 UrEnergy USA Inc. (Ur-Energy) opposed 

the use of recapture (as well as any 

annual adjustment) because the 

‘‘[f]ailure to make a fixed 4-year 

commitment will introduce risk to the 

utilities and undermine the 

Department’s intentions.’’ 15 Energy 

Harbor Corp. (Energy Harbor) 

recommended that the Department 

clarify that recapture for termination of 

operations only apply if that 

termination occurs during the 4-year 

allocation period.16 Energy Harbor also 

stated that recapture should not occur as 

a result of change in operating results 

from the projections used in the nuclear 

reactor’s application for credits.17

However, Energy Harbor continued, if 

recapture is used for circumstances 

other than closure, the Department 

should include ‘‘an appeals process for 

certified nuclear reactors to challenge 

the recapture of their credits.’’ 18

Constellation Energy Corporation 

(Constellation) stated that ‘‘[t]he 

recapture process must be known before 


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19Constellation Comments at 6. 

20 Generation Atomic Comments at 4. 

21 Generation Atomic Comments at 5. 

22Energy Harbor Comments at 9. 

23Energy Harbor Comments at 10. 

24Monitoring Analytics Comments at 15. 

25Monitoring Analytics Comments at 14–15. 

26Constellation Comments at 6. 

27EPSA Comments at 13. 

28NRG Energy Comments at 4. 

29UCS Comments at 10. 

30UCS Comments at 10. 

31CATF Comments at 13. 

32EPSA Comments at 13. 

33Epoch Energy Comments at 5. 

34Epoch Energy Comments at 5. 

35 Dominion Comments at 4–5. 

credits are allocated in order for nuclear 

owners to be able to properly evaluate 

whether or not to accept the credits.’’ 19

(b) The Department’s Response 

The statute expressly requires 

recapture both for termination of 

operations and for failure to operate at 

an annual loss in the absence of an 

allocation of credits. The recapture 

regulation satisfies this requirement. 

The Department has not included an 

additional recapture trigger for 

violations or safety findings under the 

nuclear reactor’s NRC license. While 

adherence by nuclear reactors to the 

highest safety standards is critically 

important, the NRC possesses adequate 

tools to enforce its safety requirements 

and address violations. If the nuclear 

reactor is subsequently required to 

expend incremental funds to remedy a 

safety condition or pay a fine, it will not 

be entitled to reflect those additional 

costs in the calculation of credits 

because each nuclear reactor’s credit 

amount is capped at the value of credits 

awarded in the auction. The Department 

has included in the recapture regulation 

a notice provision and a process to 

request reconsideration of a recapture 

determination. The recapture regulation 

also allows an owner or operator of a 

nuclear reactor that is aggrieved by a 

decision on reconsideration to petition 

the Department’s Office of Hearings and 

Appeals for review of that decision. 

2. Inclusion in the CNC Program of an 

Annual Adjustment Mechanism 

(a) Comments Received 

In response to the RFI, the 

Department received numerous 

comments on the use of an annual 

adjustment mechanism. Generation 

Atomic stated that the use of an annual 

adjustment mechanism is not 

appropriate because it is not included in 

the text of the IIJA, ‘‘or even hinted at,’’ 

and the only measure for adjustment of 

credit that has been authorized by 

Congress is the recapture mechanism at 

the end of the 4-year award period.20

This commenter identified the 

adjustment mechanisms as being 

‘‘several orders of magnitude much 

more complicated than Congress 

intended’’ and that as a result ‘‘cash 

flows will become far less predictable’’ 

and impair the ability of nuclear reactor 

to plan effectively for upgrades.21

Energy Harbor did not support the use 

of an annual adjustment but instead 

recommended a recapture mechanism 

that uses a three-year rolling average of 

the forward prices from the closest 

trading hub adjusted on an annual basis 

to determine if recapture is necessary.22

Energy Harbor also noted that each 

specific nuclear reactor may have ‘‘a 

specific contractual agreement which 

would make the standardized market 

price assumption inaccurate,’’ in which 

case the nuclear reactor ‘‘should be able 

to request an exception from the 

standardized market price.’’ 23

Monitoring Analytics, Inc. 

(Monitoring Analytics) supported use of 

an annual adjustment of the credit 

amount but argued that the adjustment 

should be calculated annually in 

advance, rather than after the 

conclusion of the award year. It 

recommended that a strike price based 

on known forward prices should be 

defined annually for the following year 

and that strike price would set the 

nuclear reactor’s credit level for the 

following year.24 Monitoring Analytics 

reasoned that an indexing mechanism 

like this ‘‘would reduce the need for 

after the fact recapture provisions.’’ 25

Other commenters supported the use 

of an annual adjustment conducted at 

the conclusion of an award year as 

proposed in the RFI. For example, 

Constellation observed that ‘‘[t]he DOE 

proposal of a credit price adjustment 

based on relevant market price indices 

is a simple and transparent mechanism 

which ensures fair after-the-fact 

treatment of both suppliers and 

taxpayers.’’ 26 The Electric Power 

Supply Association (EPSA) stated that 

an annual adjustment mechanism 

should be employed and that if the 

nuclear reactor ‘‘does not operate at an 

annual loss in the absence of a CNC 

credit, those funds must be recaptured 

by DOE.’’ 27 NRG Energy, Inc. (NRG 

Energy) recommended that the 

Department perform an annual 

calculation based on the reactor’s actual 

revenue, costs, and losses, ‘‘in 

comparison to and in substantially the 

same form as the base projection’’ on 

which the award was based to measure 

actual loss and pay out credits.28 The 

Union of Concerned Scientists (UCS) 

supported an annual adjustment 

mechanism, pointing out that an 

adjustment or indexing mechanism can 

‘‘account for the inherent uncertainties 

and rapidly changing market conditions 

that are often difficult to accurately 

project,’’ as well as ‘‘ensure that 

taxpayer dollars are spent wisely and 

achieve important economic and 

emission reduction benefits.’’ 29

However, UCS noted that potential 

disadvantages of an annual adjustment 

or indexing mechanism are that it may 

complicate program administration and 

deter nuclear reactor participation.30

The Clean Air Task Force (CATF) 

explained that ‘‘a true-up mechanisms 

based on transparent and verifiable 

indicators of revenues actually realized 

(i.e., MWh produced and RTO 

settlements), relative to the avoided cost 

threshold for retirement, could result in 

no more risk for the reactor and more 

credits available for the CNC 

program.’’ 31

Comments diverged over whether the 

Department should adjust awarded 

credits based on an index established by 

the Department or an index selected by 

the nuclear reactor, or some other factor. 

As noted in the preceding paragraph, 

NRG Energy recommended that the 

annual adjustment be based on actual 

revenue and other results of operation of 

the nuclear reactor. EPSA opposed the 

use of an index, arguing that the IIJA 

requires that nuclear reactors awarded 

credits must ‘‘demonstrate on an annual 

basis that they did or did not operate at 

an annual loss in the absence of CNC 

credits.’’ 32 Epoch Energy Advisory 

Services, LLC (Epoch Energy) observed 

that the Department ‘‘should avoid the 

credit from creating windfalls for 

reactors should market prices turn out 

to be high.’’ 33 To avoid this outcome, 

Epoch Energy proposed a true-up 

mechanism based on actual market 

prices.34 Dominion Energy Nuclear 

Connecticut, Inc. (Dominion) stated that 

the Department should not use an 

indexing mechanism, because an index 

‘‘does not accurately reflect the actual 

revenues earned by a unit’’ through 

forward contracts and other hedging 

measures.35

The Nuclear Energy Institute (NEI) 

supported the use of an index at the 

option of a reactor but observed that 

‘‘[t]here can be a significant disconnect 

between a real-time or day-ahead 

locational marginal pricing and the 

actual sales at a plant . . . . If DOE 

were to require the award to adjust in 

reaction to short-term market prices, 

there is a risk that the expectations 

formed from those prices may not 

actually be reflected in the realized 


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36NEI Comments at 13. 37PSEG Comments at 14, 24–25. 38PSEG Comments at 15. 39UCS Comments at 5. 40UCS Comments at 10. 

41CATF Comments at 13. 

42EPSA Comments at 13. 

43 Guidance at 35. 

44 Id. at 34–35. 

45NEI Comments at 7. 46NEI Comments at 7. 47UA Comments at 6. 

48NEI Comments at 12. 

49NEI Comments at 12. 

50PSEG Comments at 21–22; Constellation 

Comments at 5. 

51Constellation Comments at 6. 

52UCS Comments at 10. UCS framed this 

outcome based on the use of an index in performing 

the annual adjustment calculation. 

53NRG Energy Comments at 4. 

54PSEG Comments at 15. 

revenue at the reactor.’’ 36 PSEG Nuclear 

LLC (PSEG) supported the use of an 

annual adjustment based on an indexing 

mechanism, but emphasized that each 

nuclear reactor should be allowed to 

select its own index mechanism that 

reflects its geographic and market 

location and that accounts for the 

nuclear reactor’s forward sales and 

hedges.37 PSEG stated that if an 

adjustment mechanism is used, the 

Department should not place a ceiling 

on an upwards adjustment.38

UCS supported the use of an annual 

adjustment, settlement and index 

mechanism, depending on design,39 and 

supported ‘‘a ceiling on the adjusted 

credit value to ensure that DOE does not 

owe more money than is available each 

year.’’ 40 CATF stated that the 

adjustment to the credits must not 

exceed the level of the nuclear reactor’s 

bid, which bid itself is limited by the 

IIJA to not exceed the projected 

operating loss.41 EPSA stated that if 

economic conditions change materially 

during the 4-year award period such 

that the nuclear reactor’s losses exceed 

the credits awarded, the nuclear reactor 

should be required to submit a revised 

bid for CNC credits in a re-certification 

process, rather than have its credits 

increased as part of the annual 

adjustment.42

(b) The Department’s Response 

As explained in the Guidance, an 

owner or operator of a nuclear reactor 

that is awarded credits must file an 

annual report to receive payment of 

credits and the Department will audit 

the reported information.43 The value of 

credits paid to an owner or operator 

each year will be adjusted based on the 

annual adjustment analysis conducted 

as part of the annual review.44 The IIJA 

does not specify the intervals at which 

credits will be paid to the owner or 

operator or the conditions that the 

Department may establish to determine 

the amount to be paid but does direct 

the Secretary to periodically audit the 

certified nuclear reactor during the 

award period. The Department believes 

that an annual payment process is 

sufficient to provide timely payment to 

nuclear reactors for credits awarded. 

Furthermore, adjusting the payment 

based on an annual audit following the 

conclusion of the award year ensures 

that the payment is properly 

determined. The annual calculation will 

compare actual revenues in certain 

identified categories to forecasted 

revenues for those categories and actual 

costs in certain identified categories to 

forecasted costs for those categories as 

used to determine the value of credits 

that were awarded. The Department 

concluded that using actual data in 

these categories (rather than indices or 

industry averages) accurately reflects 

the financial results of the nuclear 

reactor and the owner or operator, and 

at the same time is administratively 

straightforward and auditable. Other 

elements of the nuclear reactor’s costs, 

including the cost of operational and 

market risks, will be held constant in 

the annual adjustment calculation. As 

required by the IIJA, the credits awarded 

represent the ceiling on the annual 

payment that the nuclear reactor may 

receive, but the value of the credits can 

be reduced or eliminated based on 

actual financial results as set forth in the 

Award Agreement. This mechanism 

ensures taxpayer funds are expended 

only to the extent that the owner or 

operator would have experienced an 

annual loss in the absence of those 

credits. 

3. Relationship of Annual Adjustment 

Mechanism and Recapture Regulation 

(a) Comments Received 

Commenters recognized the 

importance of the recapture provision 

working in concert with the audit and 

annual adjustment mechanism and 

other related terms of the CNC Program. 

NEI cautioned that the goal of the 

recapture procedure to ensure the 

effective use of taxpayer money ‘‘must 

be balanced against the policy objective 

Congress sought to achieve’’ to support 

economically at-risk nuclear reactors.45

NEI worried that ‘‘[a]n overly 

burdensome recapture provision risks 

unintended consequences that 

undermine the intent of Congress,’’ and 

could cause a nuclear reactor to cease 

operations rather than participate in the 

CNC program.46 The United Association 

of Journeymen and Apprentices of the 

Plumbing and Pipe Fitting Industry of 

the United States and Canada, AFL–CIO 

(UA) stated that the Department ‘‘must 

take care when implementing the CNC 

Program that operation of this recapture 

provision is not overly burdensome 

such that financially struggling reactors 

are discouraged from participating.’’ 47

NEI also stated that the Department 

should ensure consistency between the 

recapture regulations and the other 

established elements of the CNC 

Program.48 For example, NEI explained, 

operational and market risks that the 

IIJA explicitly directs be included in the 

calculation of the credits awarded 

should also be included in the recapture 

calculation.49 PSEG and Constellation 

similarly noted that risks incorporated 

in the calculations supporting the award 

of credits should be included in the 

annual adjustment and the recapture 

analysis.50 Constellation stated that if 

the recapture mechanism is 

‘‘substantially different from the 

proposed annual adjustment, it is likely 

to create a significant deterrent to 

participation and undermine the intent 

of the program.’’ 51 UCS noted that an 

adjustment mechanism ‘‘could interact 

directly with the recapture provision,’’ 

such that a reduction in credits based on 

changes in revenues would reduce the 

credits to be recaptured.52 NRG Energy 

observed that by paying credits based 

only on actual losses determined after 

each award year, the need for recapture 

at the conclusion of the 4-year award 

period would be eliminated.53 PSEG 

suggested that ‘‘any recapture analysis 

evaluate a reactor’s economic position 

over the full period of the CNC Program, 

and not on a year-by-year basis.’’ 54

(b) The Department’s Response 

The Department has concluded that 

the use of an effective annual settlement 

mechanism to determine the value of 

credits to be paid to the owner or 

operator in each award year will reduce 

the need for recapture at the conclusion 

of the 4-year award period. To do so, the 

recapture mechanism must be 

consistent with the annual adjustment 

mechanism because both mechanisms 

measure the nuclear reactor’s operating 

results. The Department will evaluate 

the same revenue and cost elements in 

both the annual adjustment and in the 

recapture calculation, thereby ensuring 

that the nuclear reactor receives 

payment for credits consistent with the 

Award Agreement, and at the same time 

that taxpayers not fund payments in 

excess of those required to offset the 

nuclear reactor’s annual loss. 

Following the conclusion of the 

4-year award period, the Department 

will conduct the recapture analysis to 


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55 In addition, IIJA section 40323(e)(1) provides 

that the Secretary will consult with other Federal 

agencies and select certified nuclear reactors to be 

allocated credits, ‘‘notwithstanding section 169 of 

the Atomic Energy Act of 1954 (42 U.S.C. 2209).’’ 

Section 169 of the Atomic Energy Act states that no 

funds will be used for the construction or operation 

of licensed nuclear facilities ‘‘except under contract 

or other arrangement entered into pursuant to 

section 2051 of this title.’’ Section 2051 establishes 

requirements for contracts and loans for research 

activities and grants and contributions. This 

statutory exception to section 169 of the Atomic 

Energy Act provides further evidence that Congress 

understood that the CNC Program created an agency 

‘‘grant, benefit, or contract.’’ 

determine if the nuclear reactor would 

not have operated at an annual loss in 

the preceding 4-year award period in 

the absence of the credits that the 

Department has paid to the owner or 

operator in accordance with the annual 

adjustment mechanism. On the terms to 

be specified in the Award Agreement, 

the Department will adjust the annual 

payment based on (i) actual applicable 

revenues in identified categories 

compared to the corresponding 

revenues projected for that award year 

and (b) actual applicable costs in 

identified categories compared to the 

corresponding costs projected for that 

award year. Operational and market 

risks monetized by an applicant and 

reflected in the Award Agreement will 

not be trued up for actual results. The 

recapture mechanism will use the same 

method to determine operating results 

for the 4-year award period as is used 

for the annual adjustment, thereby 

providing appropriate certainty to the 

nuclear reactor of the method for 

determining recapture while also 

meeting the statutory requirement that 

the Department recapture credits to the 

extent that the nuclear reactor would 

not have operated at an annual loss in 

the absence of those credits. 

The Department expects that the 

annual adjustment mechanism and the 

contractual obligation of the nuclear 

reactor to continue operations for the 

entire 4-year award period will limit the 

need to recapture credits. Nevertheless, 

the recapture regulation is required to 

provide the Department with a remedy 

to recover credits if the nuclear would 

not have operated at an annual loss in 

the absence of an allocation of credits 

during the 4-year award period. The 

recapture regulation also addresses the 

situation where the nuclear reactor 

ceases operation during the 4-year 

award period. In that circumstance, the 

Department will rescind the award of 

any unpaid credits, including the 

credits for the award year in which the 

termination occurred and for any 

remaining award years in the award 

period. In addition, the Department will 

require the owner or operator to repay 

the value of credits paid with respect to 

a prior award year if the Department 

determines that the nuclear reactor 

terminated operations as a result of the 

owner or operator’s failure to adhere to 

prudent industry practice in the 

operation of the nuclear reactor during 

the award period. Requiring forfeiture of 

credits previously paid for award years 

where the nuclear reactor performed as 

required would not be warranted where 

the nuclear reactor in a subsequent 

award year ceased to operate because of 

a mechanical failure, act of nature, or 

other event that occurred despite the 

owner or operator’s adherence to 

prudent industry practice. 

IV. Section by Section Analysis of the 

Interim Final Rule 

A. Purpose, Applicability, and 

Definitions 

Section 612.1 of the interim final rule 

identifies the purpose of the regulations 

to set forth the procedure by which the 

Department may recapture credits 

awarded pursuant to the CNC Program. 

Section 612.2 provides that the 

regulations will apply to an owner or 

operator of a nuclear reactor that is 

awarded credits under the CNC 

Program. Section 612.3 contains defined 

terms used in the regulation. 

B. Recapture 

Section 612.4(a) of the regulation 

identifies the two circumstances in 

which credits will be recaptured: (1) if 

the nuclear reactor terminates operation 

during the award period or (2) at the 

conclusion of the award period if the 

nuclear reactor would not have operated 

at an annual loss in the absence of the 

credits. 

Section 612.4(b) addresses the first 

circumstance in which recapture will be 

pursued, namely termination by the 

nuclear reactor of operations during the 

award period. In that instance, the 

Secretary will rescind the award of any 

unpaid credits, including the credits for 

the award year in which the termination 

occurred and for any remaining award 

years in the award period. In addition, 

the Department will require the owner 

or operator to repay the value of credits 

paid with respect to a prior award year 

if the Department determines that the 

nuclear reactor terminated operations as 

a result of the owner or operator’s 

failure to adhere to prudent industry 

practice in the operation of the nuclear 

reactor during the award period. 

Section 612.4(c) addresses recapture 

in the circumstance in which the 

Secretary determines that the nuclear 

reactor, during the award period, would 

not have operated at an annual loss in 

the absence of the credits. To make this 

determination, the Secretary will 

calculate the recapture amount in the 

same manner as the annual adjustment 

of credits is calculated. Although this 

scenario is unlikely because the 

recapture analysis will use the same 

evaluation methodology as the annual 

adjustment calculation, it could occur if, 

for example, subsequent information 

became available that differs from the 

data relied on in the annual adjustment 

calculation. 

C. Notice and Reconsideration of 

Recapture Determination 

Section 612.5 of the regulation 

identifies (1) the manner in which the 

Secretary will notify an owner or 

operator of its determination to 

recapture credits and payments for 

previously paid credits, if any, (2) how 

an owner or operator may request 

reconsideration of the recapture 

determination, and (3) the effective date 

of a recapture determination. This 

section also specifies that notices issued 

with respect to recapture will be public, 

except that data and supporting 

documentation constituting confidential 

business information will not be 

disclosed. 

D. Petition to the Department’s Office of 

Hearings and Appeals 

Section 612.6 provides that an owner 

or operator of a nuclear reactor that is 

aggrieved by the Secretary’s decision to 

affirm, withdraw, or modify the notice 

of recapture as provided in paragraph 

(c) of § 612.5 may file a petition with the 

Department’s Office of Hearings and 

Appeals in accordance with 10 CFR 

1003.11 not later than thirty days after 

notification of the Secretary’s decision. 

V. Interim Final Rulemaking 

This interim final rule is being issued 

without advance notice and public 

comment to allow for immediate 

implementation of the CNC Program in 

accordance with the process described 

in the Guidance. The requirements of 

advance notice and public comment do 

not apply ‘‘to the extent that there is 

involved . . . a matter related to agency 

. . . grants, benefits, or contracts.’’ 

5 U.S.C. 553(a)(2). The CNC Program is 

a Federal grant or benefit program that 

awards credits to nuclear reactors that 

are selected to receive credits based on 

a demonstration that they are projected 

to cease operations due to economic 

factors.55 No other aspect of the CNC 

Program requires regulation for 

implementation other than the discrete 

recapture provision addressed in this 

interim final rule. 


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56Although the CNC Program is not a grant 

program under the Federal Grant and Cooperative 

Agreement Act, 31 U.S.C. 6301 et seq., case law 

treats Federal grants and benefits broadly for 

purposes of section 553 of the Administrative 

Procedure Act. 

In addition, the Administrative 

Procedure Act also provides an 

exception to ordinary notice and 

comment procedures ‘‘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.’’ 5 U.S.C. 

553(b)(3)(B). This good cause 

justification also supports waiver of the 

60-day delayed effective date for major 

rules under the Congressional Review 

Act at 5 U.S.C. 808(2). Although this 

interim final rule is effective 

immediately, comments are solicited 

from interested members of the public 

on all aspects of the interim final rule. 

The Department intends to issue a final 

rule following receipt and review of 

comments in response to the interim 

final rule. 

VI. Procedural Requirements 

A. Review Under Executive Orders 

12866, 13563, and 14094 

Executive Order 12866, ‘‘Regulatory 

Planning and Review,’’ 58 FR 51735 

(Oct. 4, 1993), as supplemented and 

reaffirmed by Executive Order 13563, 

‘‘Improving Regulation and Regulatory 

Review,’’ 76 FR 3821 (Jan. 21, 2011) and 

amended by Executive Order 14094, 

‘‘Modernizing Regulatory Review,’’ 88 

FR 21879 (April 11, 2023), requires 

agencies, to the extent permitted by law, 

to (1) propose or adopt a regulation only 

upon a reasoned determination that its 

benefits justify its costs (recognizing 

that some benefits and costs are difficult 

to quantify); (2) tailor regulations to 

impose the least burden on society, 

consistent with obtaining regulatory 

objectives, taking into account, among 

other things, and to the extent 

practicable, the costs of cumulative 

regulations; (3) select, in choosing 

among alternative regulatory 

approaches, those approaches that 

maximize net benefits (including 

potential economic, environmental, 

public health and safety, and other 

advantages; distributive impacts; and 

equity); (4) to the extent feasible, specify 

performance objectives, rather than 

specifying the behavior or manner of 

compliance that regulated entities must 

adopt; and (5) identify and assess 

available alternatives to direct 

regulation, including providing 

economic incentives to encourage the 

desired behavior, such as user fees or 

marketable permits, or providing 

information upon which choices can be 

made by the public. DOE emphasizes as 

well that Executive Order 13563 

requires agencies to use the best 

available techniques to quantify 

anticipated present and future benefits 

and costs as accurately as possible. In its 

guidance, the Office of Information and 

Regulatory Affairs (OIRA) has 

emphasized that such techniques may 

include identifying changing future 

compliance costs that might result from 

technological innovation or anticipated 

behavioral changes. For the reasons 

stated in the preamble, this proposed 

regulatory action is consistent with 

these principles. 

Section 6(a) of Executive Order 12866 

requires agencies to submit ‘‘significant 

regulatory actions’’ to OIRA for review. 

OIRA has determined that this proposed 

regulatory action does not constitute a 

‘‘significant regulatory action’’ within 

the scope of Executive Order 12866. 

Accordingly, this action was not subject 

to review under that Executive order by 

OIRA. 

B. Executive Order 13132 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255 (August 4, 1999), imposes 

certain requirements on agencies 

formulating and implementing policies 

or regulations that preempt State law or 

that have federalism implications. 

Executive Order 13132 requires agencies 

to examine the constitutional and 

statutory authority supporting any 

action that would limit the 

policymaking discretion of the States 

and to carefully assess the necessity for 

such actions. DOE has examined this 

interim final rule and has determined 

that it does not preempt State law and 

does not have a substantial direct effect 

on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. Moreover, 

the recapture regulation is required by 

statute. No further action is required by 

Executive Order 13132. 

C. Administrative Procedure Act 

The Administrative Procedure Act 

(APA), 5 U.S.C. 551 et seq., generally 

requires public notice and an 

opportunity for comment before a rule 

becomes effective. However, the APA 

provides that the requirements of 5 

U.S.C. 553 do not apply ‘‘to the extent 

that there is involved . . . a matter 

relating to agency . . . grants, benefits, 

or contracts.’’ The interim final rule 

implements the statutory direction to 

adopt a regulation to recapture credits 

awarded under the CNC Program and 

addresses the circumstances under 

which an owner or operator may forfeit 

credits for failure to continue to meet 

the requirements of the CNC Program 

pursuant to which the nuclear reactor 

has received credits from the United 

States. The recapture regulation is thus 

clearly and directly related to a federal 

benefits program. See, e.g., National 

Wildlife Federation v. Snow, 561 F.2d 

227, 232 (D.C. Cir. 1976). See also 

Alphapointe v. Department of Veterans 

Affairs, 475 F. Supp. 3d 1, 13 (D.D.C. 

2020) (‘‘the statutory exemption still 

prevails when ‘grants,’ ‘benefits’ or 

other named subjects are ‘clearly and 

directly’ implicated’’ (citations 

omitted)). The regulation sets forth the 

‘‘process necessary to maintain . . . 

eligibility for federal funds’’, Id., and 

other ‘‘integral part[s] of the grant 

program.’’ Center for Auto Safety v. 

Tiemann, 414 F. Supp. 215, 222 (D.D.C. 

1976).56 As a result, the requirements of 

5 U.S.C. 553 do not apply. 

The APA also provides an exception 

to ordinary notice and comment 

procedures ‘‘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.’’ 5 U.S.C. 

553(b)(3)(B); see also 5 U.S.C. 553(d)(3) 

(creating an exception to the 

requirement of a 30-day delay before the 

effective date of a rule ‘‘for good cause 

found and published with the rule’’). 

Even if 5 U.S.C. 553 applied, the 

Department would still have good cause 

under section 553(b)(3)(B) and 553(d)(3) 

for not undertaking section 553’s 

requirements. The Department has 

provided notice and opportunity for 

comment on the CNC Program and 

further pre-publication notice and 

comment is unnecessary. In the RFI, the 

Department identified the structure of 

the CNC Program and asked for 

comment, including on the relationship 

of the annual adjustment mechanisms 

with the recapture provision. Numerous 

commenters addressed both the specific 

structure of the recapture mechanism, as 

well as its interaction with the annual 

adjustment mechanism. This interim 

final rule in section III of this document 

addresses relevant comments and 

explains the decisions that the 

Department made in preparing the 

recapture regulation. Although the 

Department is seeking further comment 

on this interim final rule, any such 

comments will be addressed in a 

subsequent regulation and will not alter 

the recapture regulation that is 


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applicable to credits to be awarded for 

the first award period. 

D. National Environmental Policy Act of 

1969 

In this interim final rule, DOE 

establishes the procedure for the 

recapture of credits awarded under the 

Civil Nuclear Credit Program. DOE has 

determined that this rule falls into a 

class of actions that are categorically 

excluded from review under the 

National Environmental Policy Act 

(NEPA) of 1969 (42 U.S.C. 4321 et seq.) 

and DOE’s implementing regulations at 

10 CFR part 1021. Specifically, DOE has 

determined that promulgating 

procedures for the recapture of credits 

through administrative and audit 

procedures is consistent with activities 

identified in 10 CFR part 1021, 

appendix A to subpart D, A6. Therefore, 

DOE has determined that promulgation 

of the recapture rule is not a major 

Federal action significantly affecting the 

quality of the human environment 

within the meaning of NEPA and does 

not require an environmental 

assessment or an environmental impact 

statement. 

E. Paperwork Reduction Act of 1995 

This interim final rule imposes no 

information collection requirements 

subject to the Paperwork Reduction Act. 

F. Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires preparation 

of an initial regulatory flexibility 

analysis for any rule that by law must 

be proposed for public comment. As 

discussed above, DOE has determined 

that prior notice and opportunity for 

public comment is unnecessary under 

the APA. Because a notice of proposed 

rulemaking is not required for this 

action pursuant to 5 U.S.C. 553, or any 

other law, no regulatory flexibility 

analysis has been prepared for this 

interim final rule. See 5 U.S.C. 601(2), 

603(a). 

G. Executive Order 12988 

Regarding the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform,’’ 61 FR 4729 (Feb. 7, 1996), 

imposes on Federal agencies the general 

duty to adhere to the following 

requirements: (1) eliminate drafting 

errors and ambiguity; (2) write 

regulations to minimize litigation; (3) 

provide a clear legal standard for 

affected conduct rather than a general 

standard; and (4) promote simplification 

and burden reduction. Regarding the 

review required by section 3(a), section 

3(b) of Executive Order 12988 

specifically requires that each executive 

agency make every reasonable effort to 

ensure that when it issues a regulation, 

the regulation: (1) clearly specifies the 

preemptive effect, if any; (2) clearly 

specifies any effect on existing Federal 

law or regulation; (3) provides a clear 

legal standard for affected conduct 

while promoting simplification and 

burden reduction; (4) specifies the 

retroactive effect, if any; (5) adequately 

defines key terms; and (6) addresses 

other important issues affecting clarity 

and general draftsmanship under any 

guidelines issued by the Attorney 

General. Section 3(c) of Executive Order 

12988 requires Executive agencies to 

review regulations in light of applicable 

standards in sections 3(a) and 3(b) to 

determine whether they are met or it is 

unreasonable to meet one or more of 

them. DOE has completed the required 

review and has determined that, to the 

extent permitted by law, this interim 

final rule meets the relevant standards 

of Executive Order 12988. 

H. Unfunded Mandates Reform Act of 

1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) (Pub. L. 

104–4) requires each Federal agency to 

assess the effects of Federal regulatory 

actions on State, local, and Tribal 

governments and the private sector. For 

a proposed regulatory action likely to 

result in a rule that may cause the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

in any one year (adjusted annually for 

inflation), section 202 of UMRA requires 

a Federal agency to publish a written 

statement that estimates the resulting 

costs, benefits, and other effects on the 

national economy. (2 U.S.C. 1532(a), 

(b).) UMRA also requires a Federal 

agency to develop an effective process 

to permit timely input by elected 

officers of State, local, and Tribal 

governments on a proposed ‘‘significant 

intergovernmental mandate,’’ and 

requires an agency to plan for giving 

notice and opportunity for timely input 

to potentially affected small 

governments before establishing any 

requirements that might significantly or 

uniquely affect them. On March 18, 

1997, DOE published a statement of 

policy on its process for 

intergovernmental consultation under 

UMRA. (62 FR 12820) (This policy is 

also available at www.energy.gov/gc/ 

office-general-counsel under ‘‘Guidance 

& Opinions’’ (Rulemaking).) DOE 

examined this interim final rule 

according to UMRA and its statement of 

policy and has determined that the rule 

contains neither an intergovernmental 

mandate, nor a mandate that may result 

in the expenditure by State, local, and 

Tribal governments, in the aggregate, or 

by the private sector, of $100 million or 

more in any year. Accordingly, no 

further assessment or analysis is 

required under UMRA. 

I. Treasury and General Government 

Appropriations Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. This 

rule would not have any impact on the 

autonomy or integrity of the family as 

an institution. Accordingly, DOE has 

concluded that it is not necessary to 

prepare a Family Policymaking 

Assessment. 

J. Treasury and General Government 

Appropriations Act, 2001 

The Treasury and General 

Government Appropriations Act, 2001 

(44 U.S.C. 3516 note) provides for 

Federal agencies to review most 

disseminations of information to the 

public under guidelines established by 

each agency pursuant to general 

guidelines issued by OMB. OMB’s 

guidelines were published at 67 FR 

8452 (Feb. 22, 2002), and DOE’s 

guidelines were published at 67 FR 

62446 (Oct. 7, 2002). DOE has reviewed 

this interim final rule under the OMB 

and DOE guidelines and has concluded 

that it is consistent with the applicable 

policies in those guidelines. 

K. Executive Order 13211 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ 66 FR 28355 (May 

22, 2001), requires Federal agencies to 

prepare and submit to OIRA, a 

Statement of Energy Effects for any 

proposed significant energy action. A 

‘‘significant energy action’’ is defined as 

any action by an agency that 

promulgates or is expected to lead to 

promulgation of a final rule and that: (1) 

is a significant regulatory action under 

Executive Order 12866, or any successor 

order; and (2) is likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy; or (3) is 

designated by the Administrator of 

OIRA as a significant energy action. For 

any proposed significant energy action, 

the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use 

should the proposal be implemented, 

and of reasonable alternatives to the 


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Federal Register / Vol. 89, No. 5 / Monday, January 8, 2024 / Rules and Regulations 871 

action and their expected benefits on 

energy supply, distribution, and use. 

This interim final rule establishes a 

procedure to recapture credits awarded 

under the CNC Program and, therefore, 

does not meet any of the three criteria 

listed above. It is not a significant 

energy action because it would not have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

Accordingly, DOE has not prepared a 

Statement of Energy Effects. 

L. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

submit to Congress a report regarding 

the issuance of this interim final rule 

prior to the effective date set forth at the 

outset of this interim final rule. The 

report will state that it has been 

determined that this interim final rule is 

not a ‘‘major rule’’ as defined by 5 

U.S.C. 804(2). 

VII. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this interim final rule. 

List of Subjects in 10 CFR Part 612 

Civil nuclear credit program, Nuclear 

energy, Nuclear power plants and 

reactors, Petition to the Department of 

Energy’s Office of Hearings and 

Appeals, Recapture of civil nuclear 

credits. 

Signing Authority 

This document of the Department of 

Energy was signed on December 8, 2023, 

by Maria D. Robinson, pursuant to 

delegated authority from the Secretary 

of Energy. That document with the 

original signature is maintained by DOE. 

For administrative purposes only, and 

in compliance with requirements of the 

Office of the Federal Register, the 

undersigned DOE Federal Register 

Liaison Officer has been authorized to 

sign and submit the document in 

electronic format for publication, as an 

official document of the Department of 

Energy. This administrative process in 

no way alters the legal effect of this 

document upon publication in the 

Federal Register. 

Signed in Washington, DC, on January 3, 

2024. 

Treena V. Garrett, 

Federal Register Liaison Officer, U.S. 

Department of Energy. 

For the reasons stated in the 

preamble, DOE amends chapter II, 

subchapter H, of title 10 of the Code of 

Federal Regulations by adding part 612 

to read as follows: 

PART 612—RECAPTURE OF CIVIL 

NUCLEAR CREDITS 

Sec. 

612.1 Purpose. 

612.2 Applicability. 

612.3 Definitions. 

612.4 Recapture. 

612.5 Notice of recapture; request for 

reconsideration; effectiveness of 

recapture. 

612.6 Petition to the Department’s Office of 

Hearings and Appeals. 

Authority: 42 U.S.C. 7254; 42 U.S.C. 

18753. 

§ 612.1 Purpose. 

This part implements section 

40323(g)(2) of the Infrastructure 

Investment and Jobs Act (Pub. L. 117– 

58), codified at 42 U.S.C. 18753(g)(2), to 

set forth the procedure to recapture 

credits awarded pursuant to the civil 

nuclear credit program. 

§ 612.2 Applicability. 

This part applies to an owner/ 

operator of a nuclear reactor that is 

awarded credits pursuant to the civil 

nuclear credit program. 

§ 612.3 Definitions. 

Award period means the period 

beginning with the first day of the 

award year for which the owner/ 

operator has been awarded credits up to 

and including the last day of the fourth 

award year thereafter. 

Award year means a 12-month period 

beginning on the effective date of the 

award of credits and each anniversary 

thereof during the award period. 

CNC program means the civil nuclear 

credit program established by the 

Secretary pursuant to section 40323 of 

the Infrastructure Investment and Jobs 

Act (Pub. L. 117–58) codified at 42 

U.S.C. 18753. 

Credits means the credits awarded to 

an owner/operator of a nuclear reactor 

projected to cease operations due to 

economic factors and certified by the 

Department as part of the CNC program. 

Department means the Department of 

Energy. 

Nuclear reactor means a nuclear 

power reactor unit with respect to 

which an owner/operator has been 

awarded credits pursuant to the civil 

nuclear credit program. 

Owner/operator means the owner or 

operator of a nuclear reactor that has 

been awarded credits pursuant to the 

civil nuclear credit program. 

Secretary means the Secretary of 

Energy. 

§ 612.4 Recapture. 

(a) Credits allocated to an owner/ 

operator shall be subject to recapture— 

(1) If the nuclear reactor terminates 

operations during the award period, 

pursuant to paragraph (b) of this section; 

or 

(2) At the conclusion of the award 

period, if the nuclear reactor would not 

have operated at an annual loss in the 

absence of the credits, pursuant to 

paragraph (c) of this section. 

(b) If the Department determines that 

a nuclear reactor has terminated 

operations during the award period, 

then the Department will recapture the 

award of credits for the award year in 

which the termination of operations 

occurred and for any remaining award 

years by rescinding the credits awarded 

but not paid, and the owner/operator 

shall have no further rights to any 

credits. In addition, the value of credits 

that the Department has previously paid 

to the owner/operator with respect to a 

prior award year shall be repaid to the 

Department by the owner/operator if the 

Department determines that the nuclear 

reactor terminated operations as a result 

of the owner/operator’s failure to adhere 

to prudent industry practice in the 

operation of the nuclear reactor during 

the award period. 

(c) Following the conclusion of the 

award period, the Department will 

determine whether, for the award 

period, the nuclear reactor would not 

have operated at an annual loss in the 

absence of the credits. The amount 

subject to recapture following the 

conclusion of the award period shall be 

determined in the same manner that the 

annual adjustment of credits is 

calculated under the terms of the award 

of such credits. 

§ 612.5 Notice of recapture; request for 

reconsideration; effectiveness of recapture. 

(a) Notice of recapture determination. 

If pursuant to § 612.4, the Department 

determines that: 

(1) An amount of credits not yet paid 

should be recaptured; and 

(2) That any credits previously paid to 

the owner/operator should be 

recaptured, the Secretary will provide to 

an owner/operator a written notice of 

the amount of credits subject to the 

recapture determination and the value 

of credits that the Department has 

previously paid to an owner/operator 

and that are subject to recapture, if any, 

with an explanation of such amount. 

(b) Request for reconsideration. 

Unless the Department extends the time 

period, within 30 calendar days of 

receipt of a notice of recapture provided 

to an owner/operator under paragraph 

(a) of this section, an owner/operator 

may submit a written request to the 

Department requesting reconsideration 

of the recapture determination. To 


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1Public Law 101–410, Oct. 5, 1990, 104 Stat. 890, 

codified at 28 U.S.C. 2461 note. 

2Public Law 114–74, Title VII, section 701(b), 

Nov. 2, 2015, 129 Stat. 599, codified at 28 U.S.C. 

2461 note. 

3See OMB Memorandum M–18–03, 

Implementation of the 2018 Annual Adjustment 

Pursuant to the Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 2015, at 4, 

which permits agencies that have codified the 

formula to adjust CMPs for inflation to update the 

penalties through a notice rather than a regulation. 

4 83 FR 1517 (Jan. 12, 2018) (final rule); 83 FR 

1657 (Jan. 12, 2018) (2018 CMP Notice). 

5The inflation adjustment multiplier for 2024 is 

1.03241. See OMB Memorandum M–24–07, 

Implementation of Penalty Inflation Adjustments 

for 2024, Pursuant to the Federal Civil Penalties 

Inflation Adjustment Act Improvements Act of 2015 

(Dec. 19, 2023). 

6See 88 FR 289 (Jan. 4, 2023). 

7Penalties assessed for violations occurring prior 

to November 2, 2015, will be subject to the 

maximum amounts set forth in the OCC’s 

regulations in effect prior to the enactment of the 

2015 Adjustment Act. 

request reconsideration of the recapture 

determination, an owner/operator must 

submit to the Department a written 

request that includes: 

(1) An explanation of why the owner/ 

operator believes all or some of the 

credits (and the value of any credits 

previously paid) should not be subject 

to recapture; and 

(2) Supporting information and 

calculations. 

(c) Notification of final amount 

subject to recapture. Unless the 

Department extends the time period, 

within 60 days of receipt of an owner/ 

operator’s request for reconsideration 

provided pursuant to paragraph (b) of 

this section, the owner/operator will be 

notified of the Department’s decision to 

affirm, withdraw, or modify the notice 

of recapture. The notification will 

include an explanation of the decision, 

including responses to the owner/ 

operator’s supporting reasons and 

consideration of additional information 

provided. 

(d) Effectiveness of recapture. (1) If 

the owner/operator has not requested 

reconsideration as provided in 

paragraph (b) of this section; 

(i) The credits will be deemed to be 

recaptured as of the date of the 

notification provided by the Secretary 

pursuant to paragraph (a) of this section 

and the owner/operator will have no 

further right or claim to those credits; 

and 

(ii) The owner/operator shall repay to 

the Department the value of credits that 

the Department has paid to the owner/ 

operator and that are subject to 

recapture under § 612.4 within 30 

calendar days of the date of notification 

provided by the Department pursuant to 

paragraph (a) of this section. 

(2) If the owner/operator has 

requested reconsideration as provided 

in paragraph (b) of this section; 

(i) The credits will be deemed to be 

recaptured as of the date of the 

notification provided by the Department 

pursuant to paragraph (c) of this section 

and the owner/operator will have no 

further right or claim to those credits; 

and 

(ii) The owner/operator shall pay to 

the Department the value of credits that 

the Department has previously paid to 

the owner/operator and that are subject 

to recapture under § 612.4 within 30 

calendar days of the date of notification 

provided by the Department pursuant to 

paragraph (c) of this section. 

(e) Notice. Notices issued by the 

Department under this section shall be 

made public by the Department, with 

the exception of any data or supporting 

documentation constituting confidential 

business information not subject to 

disclosure. 

§ 612.6 Petition to the Department’s Office 

of Hearings and Appeals. 

In order to exhaust its administrative 

remedies, an owner/operator who is 

aggrieved by the Secretary’s decision to 

affirm, withdraw, or modify the notice 

of recapture as provided in § 612.5(c) 

may file a petition with the 

Department’s Office of Hearings and 

Appeals in accordance with 10 CFR 

1003.11 not later than thirty days after 

notification of the Department’s 

decision. 

[FR Doc. 2024–00153 Filed 1–5–24; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF THE TREASURY 

Office of the Comptroller of the 

Currency 

12 CFR Parts 19 and 109 

Notification of Inflation Adjustments 

for Civil Money Penalties 

AGENCY: Office of the Comptroller of the 

Currency, Treasury. 

ACTION: Notification of monetary 

penalties 2024. 

SUMMARY: This document announces 

changes to the Office of the Comptroller 

of the Currency’s (OCC) maximum civil 

money penalties as adjusted for 

inflation. The inflation adjustments are 

required to implement the Federal Civil 

Penalties Inflation Adjustment Act of 

1990, as amended by the Federal Civil 

Penalties Inflation Adjustment Act 

Improvements Act of 2015. 

DATES: The adjusted maximum amount 

of civil money penalties in this 

document are applicable to penalties 

assessed on or after January 8, 2024 for 

conduct occurring on or after November 

2, 2015. 

FOR FURTHER INFORMATION CONTACT: Lee 

Walzer, Counsel, Chief Counsel’s Office, 

(202) 649–5490, Office of the 

Comptroller of the Currency. 

SUPPLEMENTARY INFORMATION: This 

document announces changes to the 

maximum amount of each civil money 

penalty (CMP) within the OCC’s 

jurisdiction to administer to account for 

inflation pursuant to the Federal Civil 

Penalties Inflation Adjustment Act of 

1990 (the 1990 Adjustment Act),1 as 

amended by the Federal Civil Penalties 

Inflation Adjustment Act Improvements 

Act of 2015 (the 2015 Adjustment Act).2

Under the 1990 Adjustment Act, as 

amended, federal agencies must make 

annual adjustments to the maximum 

amount of each CMP they administer. 

The Office of Management and Budget 

(OMB) is required to issue guidance to 

federal agencies no later than December 

15 of each year providing an inflation 

adjustment multiplier (i.e., the inflation 

adjustment factor agencies must use) 

applicable to CMPs assessed in the 

following year. The agencies are 

required to publish their CMPs, adjusted 

pursuant to the multiplier provided by 

the OMB, by January 15 of the 

applicable year. 

To the extent an agency codified a 

CMP amount in its regulations, the 

agency would need to update that 

amount by regulation. However, if an 

agency codified a formula for making 

the CMP adjustments, then subsequent 

adjustments can be made solely by 

notice.3 In 2018, the OCC published a 

final regulation that removed the CMP 

amounts from its regulations while 

updating the CMP amounts for inflation 

through the notice process.4

On December 19, 2023, the OMB 

issued guidance to affected agencies on 

implementing the required annual 

adjustment, which included the relevant 

inflation multiplier.5 The OCC has 

applied that multiplier to the maximum 

CMPs allowable in 2023 for national 

banks and Federal savings associations 

as listed in the 2023 CMP notice 6 to 

calculate the maximum amount of CMPs 

that may be assessed by the OCC in 

2024.7 There were no new statutory 

CMPs administered by the OCC during 

2023. 

The following charts provide the 

inflation-adjusted CMPs for use 

beginning on January 8, 2024, pursuant 

to 12 CFR 19.240(b) and 109.103(c)(2) 


ddrumheller on DSK120RN23PROD with RULES1