[Federal Register Volume 62, Number 169 (Tuesday, September 2, 1997)]
[Rules and Regulations]
[Pages 46181-46184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23212]
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DEPARTMENT OF ENERGY
10 CFR Parts 207, 218, 430, 490, 501, 601, 820, 1013, 1017, and
1050
RIN 1901-AA76
Office of General Counsel; Inflation Adjustment of Civil Monetary
Penalties
AGENCY: Office of General Counsel, Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (``DOE'') is issuing this final non-
discretionary rule to adjust DOE's civil monetary penalties (``CMPs'')
for inflation as mandated by the Debt Collection Improvement Act of
1996. This rule adjusts CMPs within the jurisdiction of the DOE to the
maximum extent allowed by the Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended by the Debt Collection Improvement
Act of 1996.
EFFECTIVE DATE: October 2, 1997.
FOR FURTHER INFORMATION CONTACT: Stephen Duarte, U.S. Department of
Energy, Office of General Counsel, GC-74, 1000 Independence Avenue, SW,
Washington, DC 20585, (202) 586-9507.
SUPPLEMENTARY INFORMATION:
I. Background
In order to preserve the deterrent effect of civil penalties and
foster compliance with the law, the Federal Civil Penalties Inflation
Adjustment Act of 1990, 28 U.S.C. 2461 note, as amended by the Debt
Collection Improvement Act of 1996 (Pub. L. 104-134) (``the Act''),
requires Federal agencies to regularly adjust each CMP provided by law
within the jurisdiction of the agency. The Act requires each agency to
make an initial inflationary adjustment for all applicable civil
penalties within 180 days of the enactment of the statute, and to make
further adjustments at least once every four years.
The Act provides that any increase in a CMP due to the calculated
inflation adjustments shall apply only to violations that occur after
the date the increase takes effect and states that the initial
inflation adjustment may not exceed 10 percent of the existing penalty.
II. Method of Calculation
Under the Act, the inflation adjustment for each applicable CMP is
determined by increasing the maximum civil penalty amount per violation
by the cost-of-living adjustment. The ``cost-of-living'' adjustment is
defined as the amount by which the Consumer Price Index (CPI) for the
month of June of the calendar year preceding the adjustment exceeds the
CPI for the month of June of the year in which the amount of such civil
penalty was last set or adjusted pursuant to law. Any calculated
increase under this adjustment is rounded to the nearest--
(1) Multiple of $10 in the case of penalties less than or equal to
$100;
(2) Multiple of $100 in the case of penalties greater than $100 but
less than or equal to $1,000;
(3) Multiple of $1000 in the case of penalties greater than $1000
but less than or equal to $10,000;
(4) Multiple of $5000 in the case of penalties greater than $10,000
but less than or equal to $100,000;
(5) Multiple of $10,000 in the case of penalties greater than
$100,000 but less than or equal to $200,000; and
(6) Multiple of $25,000 in the case of penalties greater than
$200,000.
28 U.S.C. 2461 note, sec. 5.
For example, pursuant to section 13262 of Title 42 of the United
States Code, the DOE may impose a civil penalty of up to $5,000 per
violation against any person who violates certain sections of the
Energy Policy Act of 1992 or any regulation issued under such sections.
This civil penalty was set in 1992 and has not been adjusted. The CPI
for June 1996 is 156.7 and 140.2 for June 1992. The inflation factor is
156.7/140.2, or 1.117689. The maximum penalty amount after the increase
would be $ 5588.45 and after rounding would be $ 6,000. After applying
the 10 percent limit on an initial increase, however, the new maximum
penalty amount per violation is $5,500. DOE made a similar calculation
for each CMP adjusted in this rulemaking.
III. Explanation of Final Rule
The following list summarizes the existing DOE regulations
containing civil monetary penalties, and the penalties before and after
adjustment.
10 CFR 207.7.................... .............................. $2,500....................... 2,750
10 CFR 218.42................... .............................. 5,000........................ 5,500
10 CFR 430.61................... .............................. 100.......................... 110
10 CFR 490.604.................. .............................. 5,000........................ 5,500
[[Page 46182]]
10 CFR 501.181(c)............... .............................. 25,000....................... 27,500
.............................. 3/mcf........................ 3.3/mcf
.............................. 10/bbl....................... 11/bbl
10 CFR 601.400 and App A........ minimum....................... 10,000....................... 11,000
maximum....................... 100,000...................... 110,000
10 CFR 1013.3................... .............................. 5,000........................ 5,500
10 CFR 1017.18.................. .............................. 100,000...................... 110,000
10 CFR 1050.303................. .............................. 5,000........................ 5,500
In addition, Section 18 of the Price-Anderson Amendments Act of
1988, 42 U.S.C. 2282a, authorizes DOE to impose civil monetary
penalties of up to $100,000 on certain persons for violation of DOE
nuclear safety requirements in any applicable rule, regulation or
order. The maximum penalty amount was enacted in 1988 and has not been
adjusted. Since section 18 is perfectly clear, the implementing
regulations at 10 CFR part 820 do not include a section on the maximum
penalty amount. However, the $100,000 limit is reflected in the DOE's
General Statement of Enforcement Policy published as Appendix A to 10
CFR 820. In this rule, DOE is adding a new subpart G to 10 CFR Part 820
to set the maximum penalty as adjusted using the methodology described
above.
Finally, the National Defense Authorization Act for Fiscal Years
1992 and 1993 authorizes civil penalties against any contractor of DOE
who fails to provide for the training of individuals involved in
hazardous substance response or emergency response at DOE nuclear
weapons facilities or who fails to certify such training. 42 U.S.C.
7274d Section 7274d(b)(2) establishes the maximum civil penalty as
$5000 per day for each violation. DOE is developing a rule to implement
42 U.S.C. 7274d and will adjust the penalty authorized by that statute
when it promulgates that rule.
IV. Regulatory Review
A. Administrative Procedure Act
In accordance with 5 U.S.C. 553(b), the Administrative Procedure
Act, DOE generally publishes a rule in a proposed form and solicits
public comment on it before issuing the rule in final. However, 5
U.S.C. 553(b)(3)(B) provides an exception to the public comment
requirement if the agency finds good cause to omit advance notice and
public participation. Good cause is shown when public comment is
``impracticable, unnecessary, or contrary to the public interest.''
DOE finds that providing an opportunity for public comment prior to
publication of this rule is not necessary because DOE is carrying out a
ministerial, non-discretionary duty specified in an Act of Congress.
This rule incorporates requirements specifically set forth in 28 U.S.C.
2461 note requiring DOE to issue a regulation implementing inflation
adjustments for all its civil penalty provisions. The formula for the
amount of the penalty adjustment is prescribed by Congress. Prior
notice and opportunity to comment are therefore unnecessary in this
case because these changes are not subject to the exercise of
discretion by DOE. These technical changes, required by law, do not
substantively alter the existing regulatory framework nor in any way
affect the terms under which DOE assesses civil penalties.
B. Review Under Executive Order 12866
Today's action does not constitute a ``significant regulatory
action'' as defined in section 3(f) of Executive Order 12866,
``Regulatory Planning and Review'' (58 FR 51735), and has not been
reviewed by the Office of Information and Regulatory Affairs of the
Office of Management and Budget.
C. Review Under the Paperwork Reduction Act.
No new information collection requirements subject to the Paperwork
Reduction Act, 44 U.S.C. 501 et seq. are imposed by today's regulatory
action.
D. Federalism
The Department has analyzed this rulemaking in accordance with the
principles and criteria contained in Executive Order 12612, and has
determined that there are no federalism implications that would warrant
the preparation of a Federalism Assessment.
E. National Environmental Policy Act
This rule amends Title 10 of the Code of Federal Regulations to
adjust civil monetary penalties within the jurisdiction of the DOE. The
regulations being amended have no current environmental effect and this
rulemaking will not change that status quo. The Department has
therefore determined that this rule is covered under the Categorical
Exclusion found at paragraph A.5 of Appendix A to subpart D, 10 CFR
part 1021, which applies to a rulemaking amending an existing
regulation that does not change the environmental effect of the
regulation being amended. Accordingly, neither an environmental
assessment nor an environmental impact statement is required.
F. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 requires each
agency to assess the effects of Federal regulatory action on State,
local, and tribal governments and the private sector. Section 201
excepts agencies from assessing effects on State, local or tribal
governments or the private sector of rules that incorporate
requirements specifically set forth in law. Since this rule
incorporates requirements specifically set forth in 28 U.S.C. 2461
note, the DOE is not required to assess its regulatory effects under
Section 201. Unfunded Mandates Reform Act sections 202 and 205 do not
apply to today's action because they apply only to rules for which a
general notice of proposed rulemaking is published. Nevertheless, the
Department has determined that today's regulatory action does not
impose a Federal mandate on State, local, or tribal governments or on
the public sector.
G. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., directs
agencies to prepare a regulatory flexibility analysis whenever an
agency is required to publish a general notice of proposed rulemaking
for a rule. As discussed above, the Department has determined, that
prior notice and opportunity for public comment is unnecessary and
contrary to the public interest. In accordance with 5 U.S.C. 604(a), no
regulatory flexibility analysis has been prepared for today's rule.
H. Small Business Regulatory Enforcement Fairness Act
In accordance with section 801 of the Small Business Regulatory
Enforcement Act of 1996, 5 U.S.C. 801, DOE will report to Congress the
promulgation of this rule prior to its effective date. This rule is a
not a ``major rule'' as defined by 5 U.S.C. 804(a).
List of Subjects
10 CFR Part 207
Administrative practice and procedure, Energy, Penalties.
[[Page 46183]]
10 CFR Part 218
Administrative practice and procedure, Penalties, Petroleum
allocation.
10 CFR Part 430
Administrative practice and procedure, Energy conservation.
10 CFR Part 490
Administrative practice and procedure, Energy conservation,
Penalties.
10 CFR Part 501
Administrative practice and procedure, Electric power plants,
Energy conservation, Natural gas, Petroleum.
10 CFR Part 601
Government contracts, Grant programs, Loan programs, Penalties.
10 CFR Part 820
Government contracts, DOE contracts, Nuclear safety, Civil penalty.
10 CFR Part 1013
Administrative practice and procedure, Claims, Fraud, Penalties.
10 CFR Part 1017
Administrative practice and procedure, National Defense, Nuclear
Energy, Penalties.
10 CFR Part 1050
Decorations, medals, awards, Government employees.
Issued in Washington, D.C. on July 18, 1997.
Mary Anne Sullivan,
Acting General Counsel.
For the reasons set forth in the preamble, 10 CFR chapters II, III,
and X are amended to read as follows:
PART 207--COLLECTION OF INFORMATION
1. The authority citation for part 207 is revised to read as
follows:
Authority: 15 U.S.C. 787 et seq.; 15 U.S.C. 791 et seq.; E.O.
11790, 39 FR 23185; 28 U.S.C. 2461 note.
2. Section 207.7 is amended by revising the first sentence of
paragraph (c)(1) to read as follows:
Sec. 207.7 Sanctions.
* * * * *
(c) Civil Penalties. (1) Any person who violates any provision of
this subpart or any order issued pursuant thereto shall be subject to a
civil penalty of not more than $2,750 for each violation. * * *
* * * * *
PART 218--STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION
3. The authority citation for part 218 is revised to read as
follows:
Authority: 15 U.S.C. 751 et seq.; 15 U.S.C. 787 et seq.; 42
U.S.C. 6201 et seq.; 42 U.S.C. 7101 et seq.; E.O. 11790, 39 FR
23185; E.O. 12009, 42 FR 46267; 28 U.S.C. 2461 note.
4. Section 218.42 is amended by revising paragraphs (b)(1) (b)(2)
and (b)(3) to read as follows:
Sec. 218.42 Sanctions.
* * * * *
(b) Penalties. (1) Any person who violates any provision of part
218 of this chapter or any order issued pursuant thereto shall be
subject to a civil penalty of not more than $5,500 for each violation.
(2) Any person who willfully violates any provision of this part
218 or any order issued pursuant thereto shall be subject to a fine of
not more than $10,000 for each violation.
(3) Any person who knowingly and willfully violates any provision
of this part 218 or any order issued pursuant thereto with respect to
the sale, offer of sale, or distribution in commerce of oil in commerce
after having been subject to a sanction under paragraph (b)(1) or (2)
of this section for a prior violation of the provisions of this part
218 or any order issued pursuant thereto with respect to the sale,
offer of sale, or distribution in commerce of oil shall be subject to a
fine of not more than $50,000 or imprisonment for not more than six
months, or both, for each violation.
* * * * *
PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS
5. The authority citation for part 430 is revised to read as
follows:
Authority: 42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
6. Section 430.61 is amended by revising the first sentence of
paragraph (b) to read as follows:
Sec. 430.61 Prohibited acts.
* * * * *
(b) In accordance with section 333 of the Act, any person who
knowingly violates any provision of paragraph (a) of this section may
be subject to assessment of a civil penalty of no more than $110 for
each violation. * * *
PART 490--ALTERNATIVE FUEL TRANSPORTATION PROGRAM
7. The authority citation for part 490 is revised to read as
follows:
Authority: 42 U.S.C. 7191, 13211, 13235, 13251, 13257, 13258,
13260-3; 28 U.S.C. 2461 note.
8. Section 490.604 is amended by revising paragraph (a) to read as
follows:
Sec. 490.604 Penalties and Fines.
(a) Civil Penalties. Whoever violates Sec. 490.603 of this part
shall be subject to a civil penalty of not more than $5,500 for each
violation.
* * * * *
PART 501--ADMINISTRATIVE PROCEDURES AND SANCTIONS
9. The authority citation for part 501 is revised to read as
follows:
Authority: 42 U.S.C. 7101 et seq.; 42 U.S.C. 8301 et seq.; 42
U.S.C. 8701 et seq.; E.O. 12009, 42 FR 46267; 28 U.S.C. 2461 note.
10. Section 501.181 is amended by revising paragraph (c)(1) to read
as follows:
Sec. 501.181 Sanctions.
* * * * *
(c) Civil Penalties. (1) Any person who violates any provisions of
the Act (other than section 402) or any rule or order thereunder will
be subject to the following civil penalty, which may not exceed $27,500
for each violation: Any person who operates a powerplant or major fuel
burning installation under an exemption, during any 12-calendar-month
period, in excess of that authorized in such exemption will be assessed
a civil penalty of up to $3.30 for each MCF of natural gas or up to $11
for each barrel of oil used in excess of that authorized in the
exemption.
* * * * *
PART 601--NEW RESTRICTIONS ON LOBBYING
11. The authority citation for part 601 is revised to read as
follows:
Authority: 31 U.S.C. 1352; 42 U.S.C. 7254 and 7256; 31 U.S.C.
6301-6308; 28 U.S.C. 2461 note.
12. Section 601.400 is amended by revising paragraphs (a), (b) and
(e) to read as follows:
Sec. 601.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $11,000 and not more than
$110,000 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see
appendix B) to be filed or amended if required herein, shall be subject
to a civil penalty of not less than $11,000
[[Page 46184]]
and not more than $110,000 for each such failure.
* * * * *
(e) First offenders under paragraphs (a) or (b) of this section
shall be subject to a civil penalty of $11,000, absent aggravating
circumstances. Second and subsequent offenses by persons shall be
subject to an appropriate civil penalty between $11,000 and $110,000,
as determined by the agency head or his or her designee.
* * * * *
13. Appendix A to part 601-Certification Regarding Lobbying, is
amended as follows:
a. In the section titled ``Certification for Contracts, Grants,
Loans, and Cooperative Agreements'', paragraph (3), the last sentence
of the second undesignated paragraph is revised; and
b. In the section titled ``Statement for Loan Guarantees and Loan
Insurance'', the last sentence in the third undesignated paragraph is
revised to read as follows:
Appendix A to Part 601--Certification Regarding Lobbying
Certification for Contracts, Grants, Loans, and Cooperative
Agreements
* * * * *
(3) * * * Any person who fails to file the required
certification shall be subject to a civil penalty of not less than
$11,000 and not more than $110,000 for each such failure.
Statement for Loan Guarantees and Loan Insurance
* * * * *
* * * Any person who fails to file the required statement shall
be subject to a civil penalty of not less than $11,000 and not more
than $110,000 for each such failure.
PART 820--PROCEDURAL RULES FOR DOE NUCLEAR ACTIVITIES
14. The authority citation for part 820 is revised to read as
follows:
Authority: 42 U.S.C. 2201, 2282(a), 7191; 28 U.S.C. 2461 note.
15. A new subpart G is added to part 820 to read as follows:
Subpart G--Civil Penalties
820.80 Basis and purpose.
820.81 Amount of penalty.
Subpart G--Civil Penalties
Sec. 820.80 Basis and purpose.
This subpart implements the Federal Civil Penalties Inflation
Adjustment Act of 1990 (the Act) (Pub. L. 101-410), as amended by the
Debt Collection Improvement Act of 1996 (Pub. L. 104-134, section
31001). 28 U.S.C. 2461 note. As amended, the Act requires each agency
head to adjust by regulation each civil monetary penalty provided by
law within the jurisdiction of the Federal agency by the inflation
adjustment specified in 28 U.S.C. 2461 note. This subpart increases the
civil penalty amount specified in 42 U.S.C. 2282a.
Sec. 820.81 Amount of penalty.
Any person subject to a penalty under 42 U.S.C. 2282a shall be
subject to a civil penalty in an amount not to exceed $110,000 for each
such violation. If any violation under 42 U.S.C. 2282a is a continuing
one, each day of such violation shall constitute a separate violation
for the purpose of computing the applicable civil penalty.
PART 1013--PROGRAM FRAUD CIVIL REMEDIES AND PROCEDURES
16. The authority citation for part 1013 is revised to read as
follows:
Authority: 31 U.S.C. 3801-3812; 28 U.S.C. 2461 note.
17. Section 1013.3 is amended by revising paragraphs (a)(1)(iv) and
(b)(1)(ii) to read as follows:
Sec. 1013.3 Basis for civil penalties and assessments.
(a) * * *
(1) * * *
(iv) Is for payment for the provision of property or services which
the person has not provided as claimed, shall be subject, in addition
to any other remedy that may be prescribed by law, to a civil penalty
of not more than $5,500 for each such claim.
* * * * *
(b) * * *
(1) * * *
(ii) Contains or is accompanied by an express certification or
affirmation of the truthfulness and accuracy of the contents of the
statement, shall be subject, in addition to any other remedy that may
be prescribed by law, to a civil penalty of not more than $5,500 for
each such statement.
* * * * *
PART 1017--IDENTIFICATION AND PROTECTION OF UNCLASSIFIED CONTROLLED
NUCLEAR INFORMATION
18. The authority citation for part 1017 is revised to read as
follows:
Authority: 42 U.S.C. 2168; 28 U.S.C. 2461 note.
19. Section 1017.18 is amended by revising the last sentence of the
introductory text to paragraph (a) to read as follows:
Sec. 1017.18 Violations.
(a) Civil Penalty. * * * The Assistant Secretary for Defense
Programs may recommend to the Secretary imposition of this civil
penalty, which shall not exceed $110,000 for each violation.
* * * * *
PART 1050--FOREIGN GIFTS AND DECORATIONS
20. The authority citation for part 1050 is revised to read as
follows:
Authority: The Constitution of the United States, Article I,
Section 9; 5 U.S.C. 7342; 22 U.S.C. 2694; 42 U.S.C. 7254 and 7262;
28 U.S.C. 2461 note.
21. Section 1050.303 is amended by revising the last sentence in
paragraph (d) to read as follows:
Sec. 1050.303 Enforcement.
* * * * *
(d) * * * The court in which such action is brought may assess a
civil penalty against such employee in any amount not to exceed the
retail value of the gift improperly solicited or received plus $5,500.
[FR Doc. 97-23212 Filed 8-29-97; 8:45 am]
BILLING CODE 6450-01-P
