[Federal Register Volume 73, Number 185 (Tuesday, September 23, 2008)]
[Rules and Regulations]
[Pages 54671-54673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22172]


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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 2 and 13

RIN 3150-AI45
[NRC-2008-0412]


Adjustment of Civil Penalties for Inflation

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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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 were 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 is amending its regulations to adjust 
the maximum CMP for a violation of the Atomic Energy Act of 1954, as 
amended, (AEA) or any regulation or order issued under the AEA from 
$130,000 to $140,000 per violation per day. Further, the provisions 
concerning program fraud civil penalties are being amended by adjusting 
the maximum CMP under the Program Fraud Civil Remedies Act from $6,000 
to $7,000 for each false claim or statement.

DATES: This rule is effective on October 23, 2008.

ADDRESSES: You can access publicly available documents related to this 
document using the following methods:
    Federal e-Rulemaking Portal: Go to http://www.regulations.gov and 
search for documents filed under Docket ID [NRC-2008-0412]. Address 
questions about NRC dockets to Carol Gallagher 301-415-5905; e-mail 
<a href="/cdn-cgi/l/email-protection#b8fbd9cad7d496ffd9d4d4d9dfd0ddcaf8d6cadb96dfd7ce"><span class="__cf_email__" data-cfemail="36755744595a1871575a5a57515e53447658445518515940">[email protected]</span></a>.
    NRC's Public Document Room (PDR): The public may examine and have 
copied for a fee publicly available documents at the NRC's PDR, Public 
File Area O F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland.
    NRC's Agencywide Documents Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC are 
available electronically at the NRC's electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain 
entry into ADAMS, which provides text and image files of NRC's public 
documents. If you do not have access to ADAMS or if there are problems 
in accessing the documents located in ADAMS, contact the NRC's PDR 
reference staff at 1-899-397-4209, 301-415-4737, or by e-mail to 
<a href="/cdn-cgi/l/email-protection#8efeeafca0fcebfde1fbfcedebcee0fceda0e9e1f8"><span class="__cf_email__" data-cfemail="dbabbfa9f5a9bea8b4aea9b8be9bb5a9b8f5bcb4ad">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Maxwell C. Smith, Office of the 
General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, telephone 301-415-1246, e-mail: <a href="/cdn-cgi/l/email-protection#a7cac6dfd0c2cbcb89d4caced3cfe7c9d5c489c0c8d1"><span class="__cf_email__" data-cfemail="0d606c757a686161237e606479654d637f6e236a627b">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background
II. Discussion
III. Procedural Background
IV. Voluntary Consensus Standard
V. Environmental Impact: Categorical Exclusion
VI. Paperwork Reduction Act Statement
VII. Regulatory Analysis
VIII. Regulatory Flexibility Certification
IX. Backfit Analysis
X. Congressional Review Act

I. Background

    The Federal Civil Penalties Inflation Adjustment Act of 1990, as 
amended, requires that the head of each agency adjust by regulations 
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 became effective on November 26, 2004. (October 26, 2004; 
69 FR 62393).
    The inflation adjustment is to be determined by increasing the 
maximum CMPs 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 in the last calendar year in which the 
amount of the penalty was last adjusted. Applying this formula results 
in a 9.8 percent increase to the maximum CMPs for violations of the 
AEA. During the 2004 inflation adjustment, the CMPs for violations of 
the Program Fraud Civil Remedies Act remained unchanged. Therefore, for 
this update the percentage change to CMPs for violations of the Program 
Fraud Civil Remedies Act is the change in the CPI from June 2000 (the 
date it was last adjusted for inflation) until June 2007, which is a 
difference of 21 percent. 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.

II. Discussion

    Section 234 of the AEA limits civil penalties for violations of the 
Atomic Energy Act to $100,000 per day per violation. In 1996, under 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, in 2000 the NRC adjusted the maximum 
CMPs to $120,000, and in 2004 the NRC adjusted the maximum CMPs to 
$130,000. The NRC is required to adjust the CMPS within its 
jurisdiction again this year. After this mandatory adjustment for 
inflation, the adjusted maximum CMP for a violation of the AEA or any 
regulation or order issued under the AEA will be $140,000 per day per 
violation (rounding the amount of the inflation adjustment increase, 
9.8 percent, to the nearest multiple of $10,000). Thus, the NRC is 
amending Sec.  2.205 to reflect a new maximum CMP under the AEA in the 
amount of $140,000 per day per violation. The amended maximum CMP 
applies only to violations that occur after the effective date of this 
final rule.
    Monetary penalties under the Program Fraud Civil Remedies Act, 31 
U.S.C. 3801 and 3802, and the NRC's implementing regulations, Sec.  
13.3(a)(1) and (b)(1) are currently limited to $6,000. In 2004, when 
the NRC last adjusted CMPs for inflation, these penalties did not meet 
the statutory criteria to be changed because the inflation increase was 
not large enough. The NRC must adjust CMPs for the change in inflation 
since the last time the CMPs were adjusted. For the Program Fraud Civil 
Remedies Act CMPs, this means the change in the CPI since 2000; that 
difference is 21 percent. When this change is applied to Sec.  
13.3(a)(1) and (b)(1) (and rounding to the nearest multiple of $1,000) 
the new penalty amount will be $7,000. Thus, the NRC is amending Sec.  
13.3(a)(1) and (b)(1) by increasing the maximum civil penalty for each 
false statement or claim under the Program Fraud Civil Remedies Act 
from $6,000 to $7,000. The amended CMP applies only to violations that 
occur after the effective date of this final rule.
    The Commission has no discretion to set alternative levels of 
adjusted civil penalties because the amount of inflation adjustment 
must be calculated by a formula established by statute.

[[Page 54672]]

Conforming changes to the NRC Enforcement Policy (NUREG-1600) will be 
made as part of the overall revisions to the Enforcement Policy 
currently taking place. (January 25, 2007; 72 FR 3429).

III. Procedural Background

    This final rule has been issued without prior public notice or 
opportunity for public comments. The Administrative Procedure Act (5 
U.S.C. 553(b)(B)) does not require an agency to use the public notice 
and comment process ``when the agency for good cause finds (and 
incorporates the finding and a brief statement of reasons therefore in 
the rules issued) that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest.'' In 
this instance, the NRC finds, for good cause, that solicitation of 
public comment on this final rule is unnecessary and impractical. 
Congress has required the NRC to adjust the CMPs within NRC 
jurisdiction for inflation at least once every four years, and provided 
no discretion regarding the substance of the amendments. The NRC is 
required only to perform ministerial computations to determine the 
inflation adjustment to the CMPs.

IV. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995, 
Public Law 104-113, requires that Federal agencies use technical 
standards that are developed or adopted by voluntary consensus 
standards bodies unless using such a standard is inconsistent with 
applicable law or is 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.

V. Environmental Impact: Categorical Exclusion

    The Commission has determined that this final rule is the type of 
action described as a categorical exclusion in 10 CFR 51.22(c)(1) and 
(2). Therefore, neither an environmental impact statement nor an 
environmental assessment has been prepared for this final rule.

VI. Paperwork Reduction Act Statement

    This final rule does not contain new or amended information 
collection requirements subject to the requirements of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a request for information or an information collection 
requirement unless the requesting document displays a currently valid 
OMB control number.

VII. 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. 
101-410, 104 Stat. 890), as amended by the Debt Collection Improvement 
Act of 1996, as amended (Pub. L. 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 under 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).

VIII. Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), the Commission certifies that this final rule would not have a 
significant economic impact upon a substantial number of small 
entities.

IX. Backfit Analysis

    The NRC has determined that these amendments do not involve any 
provision which would impose a backfit under the backfit rule, 
Sec. Sec.  50.109, 70.76, 72.62, 76.76; therefore, a backfit analysis 
need not be prepared.

X. Congressional Review Act

    In accordance with the Congressional Review Act, 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.

List of Subjects

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.

10 CFR Part 13

    Claims, Fraud, Organization and function (government agencies), 
Penalties.


0
For the reasons set out in the preamble and under the authority of the 
Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 
1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the 
following amendments to 10 CFR parts 2 and 13.

PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND 
ISSUANCE OF ORDERS

0
1. 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, Public Law 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; sec. 1704, 112 Stat. 2750 (44 U.S.C. 
3504 note).
    Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 
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), Public Law 
97-425, 96 Stat. 2213, as amended (42 U.S.C. 10143(f)); sec. 102, 
Public Law 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, 183i, 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 Public Law 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). Section 2.205(j) also issued under Public Law 101-
410, 104 Stat. 90, as amended by section 3100(s), Public Law 104-
134, 110 Stat. 1321-373 (28 U.S.C. 2461 note). Subpart C also issued 
under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Sections 2.600-2.606 
also issued under sec. 102, Public Law 91-190, 83 Stat. 853, as 
amended (42 U.S.C. 4332). Section

[[Page 54673]]

2.301 also issued under 5 U.S.C. 554. Sections 2.343, 2.346, 2.712 
also issued under 5 U.S.C. 557. Section 2.340 also issued under 
secs. 135, 141, Public Law 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 
10155, 10161). Section 2.390 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, Public Law 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, Public Law 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). Subpart M also issued under sec. 184 (42 U.S.C. 2234) and 
sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also issued 
under sec. 6, Public Law 91-550, 84 Stat. 1473 (42 U.S.C. 2135).


0
2. In Sec.  2.205, paragraph (j) is revised to read as follows:


Sec.  2.205  Civil penalties.

* * * * *
    (j) Amount. A civil monetary penalty imposed under section 234 of 
the Atomic Energy Act of 1954, as amended, or any other statute within 
the jurisdiction of the Commission that provides for the imposition of 
a civil penalty in an amount equal to the amount set forth in Section 
234, may not exceed $140,000 for each violation. If any violation is a 
continuing one, each day of such violation shall constitute a separate 
violation for the purposes of computing the applicable civil penalty.

PART 13--PROGRAM FRAUD CIVIL REMEDIES

0
3. The authority citation for part 13 continues to read as follows:

    Authority: Public Law 99-509, sec. 6101-6104, 100 Stat. 1874 (31 
U.S.C. 3801-3812); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). 
Sections 13.13(a) and (b) also issued under section Public Law 101-
410, 104 Stat. 890, as amended by section 31001(s), Public Law 104-
134, 110 Stat. 1321-373 (28 U.S.C. 2461 note).


0
4. In Sec.  13.3, paragraphs (a)(1)(iv) and (b)(1)(ii) are revised to 
read as follows:


Sec.  13.3  Basis for civil penalties and assessments.

    (a) * * *
    (1) * * *
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed, shall be subject, in addition 
to any other remedy that may be prescribed by law, to a civil penalty 
of not more than $7,000 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 $7,000 for 
each such statement.
* * * * *

    Dated at Rockville, Maryland, this 4th day of September 2008.

    For the Nuclear Regulatory Commission.
Bruce S. Mallett,
Acting Executive Director for Operations.
[FR Doc. E8-22172 Filed 9-22-08; 8:45 am]
BILLING CODE 7590-01-P


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