59270 Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Rules and Regulations

NUCLEAR REGULATORY

COMMISSION

10 CFR Parts 1, 2 and 13

RIN 3150–AG59

Adjustment of Civil Penalties for

Inflation; Miscellaneous Administrative

Changes

AGENCY: Nuclear Regulatory

Commission.

ACTION: Final rule.

SUMMARY: The Nuclear Regulatory

Commission (NRC) is amending its

regulations to adjust the maximum Civil

Monetary Penalties (CMPs) it can assess

under statutes within the jurisdiction of

the NRC. These changes are mandated

by Congress in the Federal Civil

Penalties Inflation Adjustment Act of

1990, as amended by the Debt

Collection Improvement Act of 1996.

The NRC’s Rules of Practice are

amended by adding a provision that

adjusts the maximum CMP for a

violation of the Atomic Energy Act

(AEA) or any regulations or order issued

thereunder from $110,000 to $120,000

per violation per day. The provisions

concerning program fraud civil

penalties are amended by adjusting the

maximum civil penalties under the

Program Fraud Civil Remedies Act from

$5,500 to $6,000 for each false claim or

statement. This final rule also amends

the designation of the term ‘‘Reviewing

official’’ for the purposes of the Program

Fraud Civil Remedies Act to reflect a

reorganization in the Office of the

General Counsel (OGC) as well as

making a minor modification to NRC

regulations to reflect OGC’s role in

providing legal advice to NRC staff upon

request on agency procurement matters.

DATES: The rule shall be effective on

November 3, 2000.

FOR FURTHER INFORMATION CONTACT:

Norman St. Amour, Office of the

General Counsel, U.S. Nuclear

Regulatory Commission, Washington,

D.C. 20555–0001, telephone (301) 415–

1589; e-mail NXS1@nrc.gov.

I. Background

A. Civil Penalty Adjustment

The Federal Civil Penalties Inflation

Adjustment Act of 1990, as amended,

requires that the head of each agency

adjust by regulation the CMPs within

the jurisdiction of the agency for

inflation at least once every four years.

The NRC’s last adjustment to the CMPs

within its jurisdiction occurred on

November 12, 1996. Thus, this inflation

adjustment must be implemented by

November 12, 2000.

The inflation adjustment is to be

determined by increasing the maximum

CMPs or the range of the minimum and

maximum CMPs, as applicable, by the

percentage that the Consumer Price

Index (CPI) for the month of June of the

calendar year preceding the adjustment

exceeds the CPI for the month of June

of the last calendar year in which the

amount of such penalty was last set. For

the purposes of this adjustment,

applying this formula results in a six

percent increase to the CMPs. In the

case of penalties greater than $1,000, but

less than or equal to $10,000, inflation

adjustment increases are to be rounded

to the nearest multiple of $1,000.

Increases are to be rounded to the

nearest multiple of $10,000 in the case

of penalties greater than $100,000 but

less than or equal to $200,000.

B. Miscellaneous Administrative

Changes

Under the Program Fraud Civil

Remedies Act, the NRC is required to

designate a ‘‘reviewing official.’’ The

reviewing official has several duties

under the Act, including making the

determination as to whether there is

adequate evidence against an individual

to warrant commencement of an

administrative proceeding.

Under the Commission’s original

rules implementing the Act, the Deputy

General Counsel for Licensing and

Regulation, or his or her designee, is

identified as the reviewing official for

the purposes of the Program Fraud Civil

Remedies Act. 10 CFR 13.2 (2000).

Because the position of Deputy General

Counsel for Licensing and Regulation

does not exist as such in the Office of

the General Counsel, the Commission is

designating the General Counsel as the

‘‘reviewing official.’’ The General

Counsel may delegate this authority.

This final rule would also make a

minor modification to the language of

10 CFR 1.23(e). This modification

reflects the Office of General Counsel’s

long-standing practice of providing legal

advice and opinions to NRC staff on

procurement matters in response to

specific requests from contracting

offices and other interested agency

offices, rather than preparing or

concurring in all NRC contracts and

interagency agreements to acquire

supplies and services.

II. Discussion

Section 234 of the AEA has limited

civil penalties for violations of the

Atomic Energy Act to $100,000 per day

per violation. In 1996, pursuant to the

Debt Collection Improvement Act

(DCIA), the NRC adjusted this figure to

$110,000. The DCIA also amended the

Federal Civil Penalties Inflation

Adjustment Act of 1990 to require that

the head of each agency adjust the CMPs

within the jurisdiction of the agency for

inflation at least once every four years.

Therefore, the NRC is required to adjust

the CMPs within its jurisdiction this

year. After this mandatory adjustment

for inflation, the new CMP penalty

amount for a violation of the AEA will

be $120,000 per day per violation

(rounding the amount of the inflation

adjustment increase to the nearest

multiple of $10,000). Thus, by

regulation, the NRC has amended 10

CFR 2.205 to reflect a new maximum

CMP under the AEA in the amount of

$120,000 per day per violation. This

new maximum CMP applies only to

violations that occur after the effective

date of this regulation.

Monetary penalties under the Program

Fraud Civil Remedies Act, 31 U.S.C.

3801, 3802, and the NRC’s

implementing regulations, 10 CFR 13.3

(a)(1) and (b)(1), are currently limited to

$5,500. As adjusted for inflation, the

penalty amount will be $6,000. Thus,

NRC has amended 13.3 (a)(1) and (b)(1)

by increasing the maximum CMP for

each false statement or claim under the

Program Fraud Civil Remedies Act from

$5,500 to $6,000. Again, this new

maximum CMP applies only to

violations which occur after the

effective date of this regulation.

The Commission has no discretion to

set alternative levels of adjusted civil

penalties since the amount of inflation

adjustment must be calculated in

accordance with a formula established

by statute. Conforming changes to the

NRC Enforcement Policy (NUREG–1600)

published in the Federal Register on

May 1, 2000 will be made and

published in a notice accompanying this

rule.

The Program Fraud Civil Remedies

Act ‘‘reviewing official’’ in 10 CFR 13.2

currently means the Deputy General

Counsel for Licensing and Regulation of

the NRC or his or her designee. This

position does not exist in the current

OGC organization. Accordingly, the

Commission is amending the

designation of ‘‘reviewing official’’ to

mean the General Counsel of the NRC or

his or her designee.

This final rule would also make a

minor modification to the language of

10 CFR 1.23(e). The existing language

implies that OGC provides legal advice

and opinions on all agency procurement

matters. This modification reflects

OGC’s long-standing practice of

providing legal advice and opinions to

NRC staff on procurement matters only

in response to specific requests from

contracting offices and other interested

Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Rules and Regulations 59271

offices, rather than preparing or

concurring in all NRC contracts and

interagency agreements to acquire

supplies and services.

III. Procedural Background

This final rule has been issued

without prior public notice or

opportunity for public comment. The

Administrative Procedure Act (5 U.S.C.

553(b)(B)) does not require that an

agency use the public notice and

comment process ‘‘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.’’ In this instance,

the NRC finds, for good cause, that

solicitation of public comment on this

final rule is unnecessary and

impractical. Congress has required that

the agency adjust the CMPs within the

jurisdiction of the agency for inflation at

least once every four years, and

provided no discretion to the agency

regarding the substance of the

amendments. All that is required of the

NRC for determination of the inflation

adjustment are ministerial

computations. The NRC also finds that

amending the designation of reviewing

official under the Program Fraud Civil

Remedies Act and the minor

modification to reflect OGC’s actual

long-standing practice of providing legal

advice to NRC staff on procurement

matters upon request are routine matters

of agency organization, procedure, or

practice exempt from the requirement

for public notice and comment.

IV. Environmental Impact: Categorical

Exclusion

The NRC has determined that this

final rule is the type of action described

as a categorical exclusion in 10 CFR

51.22(c)(1) and 51.22(c)(2). Therefore,

neither an environmental impact

statement nor an environmental

assessment has been prepared for this

regulation. This action involves no

policy determinations. It merely adjusts

monetary civil penalties for inflation as

required by statute and amends the

definition of ‘‘reviewing official’’ for

Program Fraud Civil Remedies Act

matters to reflect a reorganization in the

Office of the General Counsel and

incorporates a minor modification to the

language of 10 CFR 1.23(e) to reflect

actual long-standing OGC practice in

providing legal advice to NRC staff,

upon request, on agency procurement

matters.

V. Paperwork Reduction Act Statement

This final rule does not contain new

or amended information collection

requirements subject to the Paperwork

Reduction Act of 1995 (44 U.S.C. 3501

et seq.).

VI. Regulatory Analysis

This final rule adjusts for inflation the

maximum civil penalties under the

Atomic Energy Act of 1954, as amended,

and under the Program Fraud Civil

Remedies Act of 1986. The adjustments

and the formula for determining the

amount of the adjustment are mandated

by Congress in the Federal Civil

Penalties Inflation Adjustment Act of

1990 (Pub. L. No. 101–410, 104 Stat.

890), as amended by the Debt Collection

Improvement Act of 1996, as amended

(Pub. L. No. 104–134, 110 Stat. 1321–

358, 373, codified at 28 U.S.C. 2461

note). Congress passed that legislation

on the basis of its findings that the

power to impose monetary civil

penalties is important to deterring

violations of Federal law and furthering

the policy goals of Federal laws and

regulations. Congress has also found

that inflation has diminished the impact

of these penalties and their effect. The

principal purposes of this legislation are

to provide for adjustment of civil

monetary penalties for inflation,

maintain the deterrent effect of civil

monetary penalties, and promote

compliance with the law. Thus, these

are anticipated impacts of

implementation of the mandatory

provisions of the legislation. Direct

monetary impacts fall only upon

licensees or other persons subjected to

NRC enforcement or those licensees or

persons subjected to liability pursuant

to the provisions of the Program Fraud

Civil Remedies Act of 1986 (31 U.S.C.

3801–3812) and the NRC’s

implementing regulations (10 CFR part

13). This final rule also makes an

adjustment to the designation of

‘‘reviewing official’’ for Program Fraud

Civil Remedies Act matters to reflect an

Office of the General Counsel

reorganization and incorporates a minor

modification to the language of 10 CFR

1.23(e) to reflect OGC’s long-standing

practice of providing legal advice and

opinions to NRC staff on procurement

matters in response to specific requests

from contracting offices and other

interested agency offices, rather than

preparing or concurring in all NRC

contracts and interagency agreements to

acquire supplies and services.

VII. Regulatory Flexibility Certification

In accordance with the Regulatory

Flexibility Act of 1980, 5 U.S.C. 605(b),

the Commission hereby certifies that

this rule will not have a significant

economic impact on a substantial

number of small entities. This

rulemaking adjusts, for inflation, the

amount charged for civil penalties, as

required by the Debt Collection

Improvement Act. The law mandates

that adjustments for inflation be made at

least every four years and sets forth a

formula for determining the amount of

the adjustment. The Nuclear Regulatory

Commission has no discretion in

implementing these requirements. To

the extent that small entities are

impacted by this rule, these are

anticipated impacts resulting from the

mandatory provisions of the legislation

authorized by Congress.

VIII. Small Business Regulatory

Enforcement Fairness Act

In accordance with the Small

Business Regulatory Enforcement

Fairness Act of 1996, the NRC has

determined that this action is not a

major rule and has verified this

determination with the Office of

Information and Regulatory Affairs of

OMB.

IX. National Technology Transfer and

Advancement Act

The National Technology Transfer

and Advancement Act of 1995, Pub. L.

104–113, requires that Federal agencies

use technical standards developed by or

adopted by voluntary consensus

standards bodies unless the use of such

a standard is inconsistent with

applicable law or otherwise impractical.

There are no consensus standards that

apply to the inflation adjustment

requirements in this final rule. Thus, the

provisions of the Act do not apply to

this rulemaking.

X. Backfit Analysis

The NRC has determined that these

amendments do not involve any

provisions which would impose backfits

as defined in 10 CFR Chapter 1;

therefore, a backfit analysis need not be

prepared.

List of Subjects

10 CFR Part 1

Organization and functions

(Government Agencies).

10 CFR Part 2

Administrative practice and

procedure, Antitrust, Byproduct

material, Classified information,

Environmental protection, Nuclear

materials, Nuclear power plants and

reactors, Penalties, Sex discrimination,

Source material, Special nuclear

material, Waste treatment and disposal.

59272 Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Rules and Regulations

10 CFR Part 13

Claims, Fraud, Organization and

function (government agencies),

Penalties.

For the reasons set out above and

under the authority of the Atomic

Energy Act of 1954, as amended, the

Energy Reorganization Act of 1974, as

amended, the Federal Civil Penalties

Inflation Adjustment Act of 1990, as

amended, and 5 U.S.C. 552 and 553, the

NRC is adopting the following

amendments to 10 CFR parts 1, 2 and

13.

PART 1—STATEMENT OF

ORGANIZATION AND GENERAL

INFORMATION

1. The authority citation for part 1

continues to read as follows:

Authority: Secs. 23, 161, 68 Stat. 925, 948,

as amended (42 U.S.C. 2033, 2201); sec. 29,

Pub. L. 85–256, 71 Stat. 579, Pub. L. 95–209,

91 stat. 1483 (42 U.S.C. 2039); sec. 191, Pub.

L. 87–615, 76 Stat. 409 (42 U.S.C. 2241); secs.

201, 203, 204, 205, 209, 88 Stat. 1242, 1244,

1245, 1246, 1248, as amended (42 U.S.C.

5841, 5843, 5844, 5845, 5849); 5 U.S.C. 552,

553; Reorganization Plan No. 1 of 1980, 45

FR 40561, June 16, 1980.

2. In § 1.23, paragraph (e) is revised to

read as follows:

§ 1.23 Office of the General Counsel.

* * * * *

(e) As requested, provides the agency

with legal advice and opinions on

acquisition matters, including agency

procurement contracts; placement of

work at Department of Energy national

laboratories; interagency agreements to

acquire supplies and services; and

grants and cooperative agreements.

Prepares or concurs in all other

interagency agreements, delegations of

authority, regulations; orders; licenses;

and other legal documents and prepares

legal interpretations thereof;

* * * * *

PART 2—RULES OF PRACTICE FOR

DOMESTIC LICENSING PROCEEDINGS

AND ISSUANCES OF ORDERS

3. The authority citation for part 2

continues to read as follows:

Authority: Secs. 161, 181, 68 Stat. 948,

953, as amended (42 U.S.C. 2201, 2231); sec.

191, as amended, Pub. L. 87–615, 76 Stat. 409

(42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as

amended (42 U.S.C. 5841); 5 U.S.C. 552.

Section 2.101 also issued under secs. 53,

62, 63, 81, 103, 104, 105, 68 Stat. 930, 932,

933, 935, 936, 937, 938, as amended (42

U.S.C. 2073, 2092, 2093, 2111, 2133, 2134,

2135); sec. 114(f), Pub. L. 97–425, 96 Stat.

2213, as amended (42 U.S.C. 10134(f)); sec.

102, Pub. L. 91–190, 83 Stat. 853, as amended

(42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42

U.S.C. 5871). Sections 2.102, 2.103, 2.104,

2.105, 2.721 also issued under secs. 102, 103,

104, 105, 183, 189, 68 Stat. 936, 937, 938,

954, 955, as amended (42 U.S.C. 2132, 2133,

2134, 2135, 2233, 2239). Section 2.105 also

issued under Pub. L. 97–415, 96 Stat. 2073

(42 U.S.C. 2239). Sections 2.200–2.206 also

issued under secs. 161 b, i, o, 182, 186, 234,

68 Stat. 948–951, 955, 83 Stat. 444, as

amended (42 U.S.C. 2201 (b), (i), (o), 2236,

2282); sec. 206, 88 Stat. 1246 (42 U.S.C.

5846). Sections 2.205(j) also issued under

Pub. L. 101–410, 104 Stat. 890, as amended

by section 31001(s), Pub. L. 104–134, 110

Stat. 1321–373 (28 U.S.C. 2461 note).

Sections 2.600–2.606 also issued under sec.

102, Pub. L. 91–190, 83 Stat. 853, as amended

(42 U.S.C. 4332). Sections 2.700a, 2.719 also

issued under 5 U.S.C. 554. Sections 2.754,

2.760, 2.770, 2.780 also issued under 5 U.S.C.

557. Section 2.764 also issued under secs.

135, 141, Pub. L. 97–425, 96 Stat. 2232, 2241

(42 U.S.C. 10155, 10161). Section 2.790 also

issued under sec. 103, 68 Stat. 936, as

amended (42 U.S.C. 2133) and 5 U.S.C. 552.

Sections 2.800 and 2.808 also issued under

5. U.S.C. 553. Section 2.809 also issued

under 5. U.S.C. 553 and sec. 29, Pub. L. 85–

256, 71 Stat. 579, as amended (42 U.S.C.

2039). Subpart K also issued under sec. 189,

68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub.

L. 97–425, 96 Stat. 2230 (42 U.S.C. 10154).

Subpart L also issued under sec. 189, 68 Stat.

955 (42 U.S.C. 2239). Appendix A also issued

under sec. 6, Pub. L. 91–560, 84 Stat. 1473

(42 U.S.C. 2135).

4. In § 2.205 paragraph (j) is revised to

read as follows:

§ 2.205 Civil Penalties.

* * * * *

(j) Amount. A civil monetary penalty

imposed under Section 234 of the

Atomic Energy Act of 1954, as amended,

or any other statute within the

jurisdiction of the Commission that

provides for the imposition of a civil

penalty in an amount equal to the

amount set forth in Section 234, may

not exceed $120,000 for each violation.

If any violation is a continuing one,

each day of such violation shall

constitute a separate violation for the

purpose of computing the applicable

civil penalty.

PART 13—PROGRAM FRAUD CIVIL

REMEDIES

5. The authority citation for part 13

continues to read as follows:

Authority: Public Law 99–509, sec 6101–

6104, 100 Stat. 1874 (31 U.S.C. 3801–3812).

Sections 13.13(a) and (b) also issued under

Pub. L. 101–410, 104 Stat. 890, as amended

by section 31001(s), Pub. L. 104–134, 110

Stat. 1321–373 (28 U.S.C. 2461 note).

6. In § 13.2 the definition of

‘‘Reviewing official’’ is revised to read

as follows:

§ 13.2 Definitions.

* * * * *

Reviewing official means the General

Counsel of the Nuclear Regulatory

Commission or his or her designee who

is—

(a) Not subject to supervision by, or

required to report to, the investigating

official;

(b) Not employed in the

organizational unit of the authority in

which the investigating official is

employed; and

(c) Serving in a position for which the

rate of basic pay is not less than the

minimum rate of basic pay for grade

GS–16 under the General Schedule.

* * * * *

7. In § 13.3, paragraphs (a)(1) and

(b)(1) are revised to read as follows:

Federal Register / Vol. 65, No. 193 / Wednesday, October 4, 2000 / Rules and Regulations 59273

§ 13.3 Basis for civil penalties and

assessments.

(a) Claims. (1) Any person who makes

a claim that the person knows or has

reason to know—

(i) Is false, fictitious, or fraudulent;

(ii) Includes or is supported by any

written statement which asserts a

material fact which is false, fictitious, or

fraudulent;

(iii) Includes or is supported by any

written statement that—

(A) Omits a material fact;

(B) Is false, fictitious, or fraudulent as

a result of such omission; and (C) Is a

statement in which the person making

such statement has a duty to include

such material fact; or

(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 $6,000 for each

such claim.

* * * * *

(b) Statements. (1) Any person who

makes a written statement that—

(i) The person knows or has reason to

know—

(A) Asserts a material fact which is

false, fictitious, or fraudulent; or

(B) Is false, fictitious, or fraudulent

because it omits a material fact that the

person making the statement has a duty

to include in such statement; and

(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 $6,000 for each

such statement.

* * * * *

Dated at Rockville, Maryland, this 27th day

of September, 2000.

For the Nuclear Regulatory Commission.

Annette L. Vietti-Cook,

Secretary of the Commission.

[FR Doc. 00–25374 Filed 10–3–00; 8:45 am]

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