Revision of the NRC Enforcement Policy, 72528-72529 [E8-28262]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 73, Number 230 (Friday, November 28, 2008)]
[Notices]
[Pages 72528-72529]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-28262]


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NUCLEAR REGULATORY COMMISSION

[NRC-2008-0557]


Revision of the NRC Enforcement Policy

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy statement: Revision.

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SUMMARY: The Nuclear Regulatory Commission (NRC or Commission) is 
publishing a revision to its Enforcement Policy (Enforcement Policy or 
Policy) to address the requirements of the Federal Civil Penalties 
Inflation Adjustment Act of 1990, as amended by the Debt Collection 
Improvement Act of 1996 (Act). The Act requires Federal agencies to 
adjust civil monetary penalties to reflect inflation.

DATES: This action was effective on October 23, 2008. Comments on this 
revision should be submitted on or before December 29, 2008, and will 
be considered by the NRC before the next Enforcement Policy revision in 
early calendar year 2009. The Commission will apply the modified Policy 
to violations that occur after the effective date.

ADDRESSES: Comments will be made available to the public in their 
entirety; personal information, such as your name, address, telephone 
number, e-mail address, etc., will not be removed from your submission. 
You may submit comments by any one of the following methods:
    Federal e-Rulemaking Portal: Go to https://www.regulations.gov; 
search on docket ID: NRC-2008-0557. Address questions about NRC dockets 
to Carol Gallagher 301-415-5905; e-mail carol.gallagher@nrc.gov.
    Mail comments to: Michael T. Lesar, Chief, Rulemaking, Directives, 
and Editing Branch, Office of Administration, Mail Stop: T-6D59, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001.
    Hand-deliver comments to: 11555 Rockville Pike, Rockville, MD 
20852, between the hours of 7:45 a.m. and 4:15 p.m., Federal workdays.
    You can access publicly available documents related to this notice 
using the following methods:
    Federal e-Rulemaking Portal: Documents related to this notice, 
including public comments, are accessible at https://
www.regulations.gov, by searching on docket ID: NRC-2008-0557.
    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-1 F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland.
    NRC's Agencywide Document Access and Management System (ADAMS): The 
Enforcement Policy is available electronically at the NRC's Electronic 
Reading Room at https://www.nrc.gov/reading-rm/adams.html. From this 
site, the public can gain entry into ADAMS, which provides text and 
image files of the NRC's public documents. In addition, the Enforcement 
Policy is available at https://www.nrc.gov/about-nrc/regulatory/
enforcement/enforce-pol.html. If you do not have Internet access or if 
there are problems in accessing the documents located in ADAMS, contact 
the PDR Reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to 
pdr.resource@nrc.gov.

FOR FURTHER INFORMATION CONTACT: Doug Starkey, Senior Enforcement 
Specialist, Office of Enforcement, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, 301-415-3456, e-mail doug.starkey@nrc.gov.

SUPPLEMENTARY INFORMATION: Section 234 of the Atomic Energy Act of 
1954, as amended (AEA), limits the maximum civil penalty amount that 
the NRC may issue for violations of the AEA at $100,000 per violation, 
per day. The Federal Civil Penalties Inflation Adjustment Act of 1990, 
as amended by the Debt Collection Improvement Act of 1996 (Act), 
requires that the head of each agency adjust by regulation the civil 
monetary penalties (CMPs) provided by law within the jurisdiction of 
the agency for inflation at least once every four years. The last 
adjustment made by the NRC to the maximum civil penalty amount was on 
November 26, 2004 to $130,000. (See 69 FR 62485; October 26, 2004.) 
Thus, the NRC is required to adjust this civil penalty by November 26, 
2008. On September 23, 2008 (73 FR 54671), the NRC published a final 
rule in the Federal Register to amend 10 CFR 2.205 to reflect the new 
maximum CMP mandated by the Act.
    The inflation adjustment mandated by the Act results in a 9.8 
percent increase to the maximum CMPs.\1\ 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.
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    \1\ Adjustment for inflation = Consumer Price Index (CPI) for 
June 2007 -CPI for June 2004.
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    After this mandatory adjustment for inflation and the rounding 
mandated by statute, the new maximum civil penalty amount will be 
$140,000 per violation, per day. The new maximum civil penalty applies 
only to violations that occur after the date that the increase takes 
effect (i.e., October 23, 2008).
    The changes mandated by the Act apply to the maximum CMP. This is 
also the amount that, under the Enforcement Policy approved by the 
Commission, is assigned as the base civil penalty for power reactors 
and gaseous diffusion plants for a Severity Level I violation 
(considered the most significant severity level). Also as a matter of 
policy, the Commission has approved use of lesser amounts for other 
types of licensees, primarily materials licensees, and for violations 
that are assessed at lower severity levels. This approach is set out in 
Tables 1A and 1B of the Enforcement Policy. Although the 1996 Act does 
not mandate changes to these lesser civil penalty amounts, the NRC is 
modifying Table 1A of the Enforcement Policy by increasing each amount 
to maintain the same proportional relationships between the

[[Page 72529]]

penalties. These changes apply to violations occurring after the 
effective date of this Policy Statement.

Paperwork Reduction Act

    This policy statement does not contain new or amended information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq). Existing requirements were approved by the 
Office of Management and Budget (OMB), approval number 3150-0136.

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.

Congressional Review Act

    In accordance with the Congressional Review 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.
    Accordingly, the NRC Enforcement Policy is revised to read as 
follows: NRC Enforcement Policy
* * * * *
    VI. * * *
    C. * * *
    1. * * *

                     Table 1A--Base Civil Penalties
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                                                                  ($)
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a. Power reactors and gaseous diffusion plants...............    140,000
b. Fuel fabricators authorized to possess Category I or II        70,000
 quantities of SNM...........................................
c. Fuel fabricators, industrial processors,\1\ and                35,000
 independent spent fuel and monitored retrievable storage
 installations...............................................
d. Test reactors, mills and uranium conversion facilities,        14,000
 contractors, waste disposal licensees, industrial
 radiographers, and other large material users...............
e. Research reactors, academic, medical, or other small            7,000
 material users \2\..........................................
f. Loss, abandonment, or improper transfer or disposal of a
 sealed source or device, regardless of the use or type of
 licensee: \3\...............................................
    1. Sources or devices with a total activity greater than      54,000
     3.7 x 10 \4\ MBq (1 Curie), excluding hydrogen-3
     (tritium)...............................................
    2. Other sources or devices containing the materials and      17,000
     quantities listed in 10 CFR 31.5(c)(13)(i)..............
    3. Sources and devices not otherwise described above.....     7,000
------------------------------------------------------------------------
\1\ Large firms engaged in manufacturing or distribution of byproduct,
  source, or special nuclear material.
\2\ This applies to nonprofit institutions not otherwise categorized in
  this table, mobile nuclear services, nuclear pharmacies, and physician
  offices.
\3\ These base civil penalty amounts have been determined to be
  approximately three times the average cost of disposal. For specific
  cases, NRC may adjust these amounts to correspond to three times the
  actual expected cost of authorized disposal.

* * * * *
    2. * * *
    d. * * *
    As provided in Section VII, ``Exercise of Discretion,'' discretion 
may be exercised by either escalating or mitigating the amount of the 
civil penalty determined after applying the civil penalty adjustment 
factors to ensure that the proposed civil penalty reflects all relevant 
circumstances of the particular case. However, in no instance will a 
civil penalty for any one violation exceed $140,000 per day.
* * * * *
    VII. * * *
    A. * * *
    The NRC considers violations categorized at Severity Level I, II, 
or III to be of significant regulatory concern. The NRC also considers 
violations associated with findings that the Reactor Oversight 
Process's Significance Determination Process evaluates as having low to 
moderate, or greater safety significance (i.e., white, yellow, or red) 
to be of significant regulatory concern. If the application of the 
normal guidance in this policy does not result in an appropriate 
sanction, with the approval of the Deputy Executive Director and 
consultation with the EDO and Commission, as warranted, the NRC may 
apply its full enforcement authority where the action is warranted. NRC 
action may include: (1) Escalating civil penalties; (2) issuing 
appropriate orders; and (3) assessing civil penalties for continuing 
violations on a per day basis, up to the statutory limit of $140,000 
per violation, per day.
* * * * *
    3. * * *
    To recognize the added significance for those cases where a very 
strong message is warranted for a significant violation that continues 
for more than one day, the NRC may exercise discretion and assess a 
separate violation and attendant civil penalty up to the statutory 
limit of $140,000 for each day the violation continues. The NRC may 
exercise this discretion if a licensee was aware of or clearly should 
have been aware of a violation, or if the licensee had an opportunity 
to identify and correct the violation but failed to do so.
* * * * *

    Dated at Rockville, Maryland, this 13th day of November 2008.

    For the Nuclear Regulatory Commission.
R.W. Borchardt,
Executive Director for Operations.
[FR Doc. E8-28262 Filed 11-26-08; 8:45 am]
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