2019-01191. Adjustment of Civil Penalties for Inflation for Fiscal Year 2019

AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final rule.

SUMMARY:

The U.S. Nuclear Regulatory Commission (NRC) is amending its regulations to adjust the maximum civil monetary penalties it can assess under statutes enforced by the agency. These changes are mandated by the Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA), as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Improvements Act). The NRC is amending its regulations to adjust the maximum penalty amount for a violation of the Atomic Energy Act of 1954, as amended (AEA), or any regulation or order issued under the AEA from $290,875 to $298,211 per violation, per day. Additionally, the NRC is amending provisions concerning program fraud civil penalties by adjusting the maximum penalty amount under the Program Fraud Civil Remedies Act from $11,181 to $11,463 for each false claim or statement.

DATES:

This final rule is effective on February 7, 2019.

ADDRESSES:

Please refer to Docket ID NRC-2017-0088 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking website: Go to http://www.regulations.gov and search for Docket ID NRC-2017-0088. Address questions about NRC dockets to Carol Gallagher; telephone: [phone]; email: [e-mail]. For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/​reading-rm/​adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [e-mail]. The ADAMS accession number for each document referenced (if it is available in ADAMS) is provided the first time that it is mentioned in the SUPPLEMENTARY INFORMATION section.
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT:

Eric Michel, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: [phone], email: [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. Discussion

III. Rulemaking Procedure

IV. Section-by-Section Analysis

V. Regulatory Analysis

VI. Regulatory Flexibility Act

VII. Backfitting and Issue Finality

VIII. Plain Writing

IX. National Environmental Policy Act

X. Paperwork Reduction Act

XI. Congressional Review Act

I. Background

Congress passed the FCPIAA in 1990 to allow for regular adjustment for inflation of civil monetary penalties, maintain the deterrent effect of such penalties and promote compliance with the law, and improve the collection of civil monetary penalties by the Federal government (Pub. L. 101-410, 104 Stat. 890; 28 U.S.C. 2461 note). Pursuant to this authority, and as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-34, 110 Stat. 1321-373), the NRC increased, via rulemaking, the penalty amounts for violations of the AEA (codified at § 2.205 of title 10 of the Code of Federal Regulations (10 CFR)) and Program Fraud Civil Remedies Act (codified at § 13.3) on four occasions between 1996 and 2008.^[1]

On November 2, 2015, Congress amended the FCPIAA through the 2015 Improvements Act (Sec. 701, Pub. L. 114-74, 129 Stat. 599). The 2015 Improvements Act required that the head of each agency perform an initial “catch-up” adjustment via rulemaking, adjusting the civil monetary penalties enforced by that agency according to the percentage change in the Consumer Price Index (CPI) between the month of October 2015 and the month of October of the calendar year when the penalty amount was last established by Congress. The NRC performed this catch-up rulemaking on July 1, 2016 (81 FR 43019).

The 2015 Improvements Act also requires that the head of each agency continue to adjust penalty amounts, rounded to the nearest dollar, on an annual basis. Specifically, each civil monetary penalty is to be adjusted based on the percentage change between the CPI for the previous month of October, and the CPI for the month of October in the year preceding that. The NRC most recently adjusted its civil penalties for inflation according to this statutory formula on January 12, 2018 (83 FR 1515). This year's adjustment is based on the percentage change between the CPI for October 2018 and October 2017.

II. Discussion

Section 234 of the AEA limits civil penalties for violations of the AEA to $100,000 per day, per violation (42 U.S.C. 2282). However, as discussed in Section I, “Background,” of this document, the NRC has increased this amount several times since 1996 per the FCPIAA, as amended. Using the formula in the 2015 Improvements Act, the $290,875 amount last established in January 2018 will increase by 2.522 percent, resulting in a new penalty amount of $298,211. This is based on the percentage change between the October 2018 CPI (252.885) and the October 2017 CPI (246.663). Therefore, the NRC is amending § 2.205 to reflect a new maximum civil monetary penalty under the AEA in the amount of $298,211 per day, per violation. This represents an increase of $7,336.

Monetary penalties under the Program Fraud Civil Remedies Act were established in 1986 at $5,000 per claim (Pub. L. 99-509, 100 Stat. 1938; 31 U.S.C. 3802). The NRC has also adjusted this amount (currently set at $11,181) multiple times pursuant to the FCPIAA, as amended, since 1996. Using the formula in the 2015 Improvements Act, the $11,181 amount last established in January 2018 will also increase by 2.522 percent, resulting in a new civil monetary penalty amount of $11,463. Therefore, the NRC is amending § 13.3 to reflect a new maximum penalty amount of $11,463 per claim or statement. This represents an increase of $282.

As permitted by the 2015 Improvements Act, the NRC may apply these increased penalty amounts to any penalties assessed by the agency after the effective date of this rulemaking (February 7, 2019), regardless of whether the associated violation occurred before or after this date (Pub. L. 114-74, 129 Stat. 600; 28 U.S.C. 2461 note). The NRC assesses civil penalty amounts for violations of the AEA based on the class of licensee and severity of the violation, in accordance with the NRC Enforcement Policy (ADAMS Accession No. ML18138A138).

III. Rulemaking Procedure

The 2015 Improvements Act expressly exempts this final rule from the notice and comment requirements of the Administrative Procedure Act, by directing agencies to adjust civil monetary penalties for inflation “notwithstanding section 553 of title 5, United States Code” (Pub. L. 114-74, 129 Stat. 599; 28 U.S.C. 2461 note). As such, this final rule is being issued without prior public notice or opportunity for public comment, with an effective date of February 7, 2019.

IV. Section-by-Section Analysis

Section 2.205 Civil Penalties

This final rule revises paragraph (j) by replacing “$290,875” with “$298,211”.

Section 13.3 Basis for Civil Penalties and Assessments

This final rule revises paragraphs (a)(1)(iv) and (b)(1)(ii) by replacing “$11,181” with “$11,463”.

V. Regulatory Analysis

This final rule adjusts for inflation the maximum civil monetary penalty amounts the NRC may assess under the AEA and under the Program Fraud Civil Remedies Act of 1986. The formula for determining the amount of the adjustment is mandated by Congress in the FCPIAA, as amended by the 2015 Improvements Act (codified at 28 U.S.C. 2461 note). Congress passed this 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 diminishes 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. Therefore, these are the anticipated impacts of this rulemaking. Direct monetary impacts fall only upon licensees or other persons subjected to NRC enforcement for violations of the AEA and regulations and orders issued under the AEA (§ 2.205), 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).

VI. Regulatory Flexibility Act

The Regulatory Flexibility Act does not apply to regulations for which a Federal agency is not required by law, including the rulemaking provisions of the Administrative Procedure Act, 5 U.S.C. 553(b), to publish a general notice of proposed rulemaking (5 U.S.C. 604). As discussed in this document under Section III., “Rulemaking Procedure,” the NRC has determined that this final rule is exempt from the requirements of 5 U.S.C. 553(b) and notice and comment need not be provided. Accordingly, the NRC also determines that the requirements of the Regulatory Flexibility Act do not apply to this final rule.

VII. Backfit and Issue Finality

The NRC has not prepared a backfit analysis for this final rule. This final rule does not involve any provision that would impose a backfit, nor is it inconsistent with any issue finality provision, as those terms are defined in 10 CFR chapter I. As mandated by Congress, this final rule increases penalty amounts for violations of already-existing NRC regulations and requirements. This final rule does not modify any licensee systems, structures, components, designs, approvals, or procedures required for the construction or operation of any facility.

VIII. Plain Writing

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).

IX. National Environmental Policy Act

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

X. Paperwork Reduction Act

This final rule does not contain a collection of information as defined in the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995.

XI. Congressional Review Act

This final rule is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.

List of Subjects

10 CFR Part 2

• Administrative practice and procedure
• Antitrust
• Byproduct material
• Classified information
• Confidential business information; Freedom of information
• Environmental protection
• Hazardous waste
• Nuclear energy
• Nuclear materials
• Nuclear power plants and reactors
• Penalties
• Reporting and recordkeeping requirements
• Sex discrimination
• Source material
• Special nuclear material
• Waste treatment and disposal

10 CFR Part 13

• Administrative practice and procedure
• Claims
• Fraud
• Organization and function (Government agencies)
• Penalties

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; 28 U.S.C. 2461 note; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 2 and 13:

PART 2—AGENCY RULES OF PRACTICE AND PROCEDURE

1. The authority citation for part 2 continues to read as follows:

Authority: Atomic Energy Act of 1954, secs. 29, 53, 62, 63, 81, 102, 103, 104, 105, 161, 181, 182, 183, 184, 186, 189, 191, 234 (42 U.S.C. 2039, 2073, 2092, 2093, 2111, 2132, 2133, 2134, 2135, 2201, 2231, 2232, 2233, 2234, 2236, 2239, 2241, 2282); Energy Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 5841, 5846); Nuclear Waste Policy Act of 1982, secs. 114(f), 134, 135, 141 (42 U.S.C. 10134(f), 10154, 10155, 10161); Administrative Procedure Act (5 U.S.C. 552, 553, 554, 557, 558); National Environmental Policy Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 3504 note.

Section 2.205(j) also issued under 28 U.S.C. 2461 note.

§ 2.205

[Amended]

2. In § 2.205, in paragraph (j), remove the amount “$290,875” and add in its place the amount “$298,211”.

PART 13—PROGRAM FRAUD CIVIL REMEDIES

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

Authority: 31 U.S.C. 3801 through 3812; 44 U.S.C. 3504 note.

Section 13.3 also issued under 28 U.S.C. 2461 note. Section 13.13 also issued under 31 U.S.C. 3730.

§ 13.3

[Amended]

4. In § 13.3, in paragraphs (a)(1)(iv) and (b)(1)(ii), remove the amount “$11,181” and add in its place the amount “$11,463”.

Dated in Rockville, Maryland, this 31st date of January, 2019.

For the Nuclear Regulatory Commission.

Margaret M. Doane,

Executive Director for Operations.

Footnotes

1.  Adjustment of Civil Penalties for Inflation, 73 FR 54,671; Sept. 23, 2008; Adjustment of Civil Penalties for Inflation, 69 FR 62,393; Oct. 26, 2004; Adjustment of Civil Penalties for Inflation; Miscellaneous Administrative Changes, 65 FR 59,270; Oct. 4, 2000; Adjustment of Civil Monetary Penalties for Inflation, 61 FR 53,554; Oct. 11, 1996. An adjustment was not performed in 2012 because the FCPIAA at the time required agencies to round their penalty amounts to the nearest multiple of $1,000 or $10,000, depending on the size of the penalty amount, and the 2012 adjustments based on the statutory formula were small enough that no adjustment resulted.