Adjustment of Civil Penalties for Inflation for FY 2017, 8133-8135 [2017-01313]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 82, Number 14 (Tuesday, January 24, 2017)]
[Rules and Regulations]
[Pages 8133-8135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-01313]


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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 2 and 13

[NRC-2016-0165]
RIN 3150-AJ82


Adjustment of Civil Penalties for Inflation for FY 2017

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is amending its 
regulations to adjust the maximum civil monetary penalties (CMPs) 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 CMP for a 
violation of the Atomic Energy Act of 1954, as amended (AEA), or any 
regulation or order issued under the AEA from $280,469 to $285,057 per 
violation, per day. Additionally, the NRC is amending provisions 
concerning program fraud civil penalties by adjusting the maximum CMP 
under the Program Fraud Civil Remedies Act from $10,781 to $10,957 for 
each false claim or statement.

DATES: This final rule is effective on January 24, 2017.

ADDRESSES: Please refer to Docket ID NRC-2016-0165 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 Web site: Go to https://www.regulations.gov and search for Docket ID NRC-2016-0165. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; email: Carol.Gallagher@nrc.gov. 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 https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``ADAMS Public Documents'' and 
then 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 pdr.resource@nrc.gov. 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, telephone: 301-287-3704, email: Eric.Michel2@nrc.gov, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001.

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


[[Page 8134]]



I. Background

    Congress passed the FCPIAA in 1990 to allow for regular adjustment 
for inflation of CMPs, maintain the deterrent effect of such penalties 
and promote compliance with the law, and improve the collection of CMPs 
by the Federal government (Pub. L. 101-410, 104 Stat. 890; 28 U.S.C. 
2461 note). The Debt Collection Improvement Act of 1996 amended the 
FCPIAA to require the head of each agency to review, and if necessary 
adjust by regulation, the CMPs assessed under statutes enforced by that 
agency at least once every 4 years, in accordance with a statutory 
formula linked to the percentage change in the Consumer Price Index 
(CPI) (Pub. L. 104-34, 110 Stat. 1321-373). Pursuant to this authority, 
the NRC increased the CMP amounts for violations of the AEA (codified 
at Sec.  2.205 of title 10 of the Code of Federal Regulations (10 CFR)) 
and Program Fraud Civil Remedies Act (codified at 10 CFR 13.3) on four 
occasions between 1996 and 2008.\1\
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    \1\ Adjustment of Civil Penalties for Inflation, 73 FR 54671 
(September 23, 2008); Adjustment of Civil Penalties for Inflation, 
69 FR 62393 (October 26, 2004); Adjustment of Civil Penalties for 
Inflation; Miscellaneous Administrative Changes, 65 FR 59270 
(October 4, 2000); Adjustment of Civil Monetary Penalties for 
Inflation, 61 FR 53554 (October 11, 1996). An adjustment was not 
performed in 2012 because the FCPIAA at the time required agencies 
to round their CMP amounts to the nearest multiple of $1,000 or 
$10,000, depending on the size of the CMP amount, and the 2012 
adjustments based on the statutory formula were not large enough to 
warrant an adjustment.
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    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 a 
``catch-up'' adjustment by rulemaking, not later than July 1, 2016, 
adjusting the CMPs within the jurisdiction of that agency according to 
the percentage change in the CPI between the month of October 2015 and 
October of the calendar year when the CMP amount was last established 
by Congress. The NRC performed this rulemaking on July 1, 2016 (81 FR 
43019), increasing the amounts codified at 10 CFR 2.205 and 10 CFR 13.3 
to $280,469 and $10,781, respectively.
    The 2015 Improvements Act also requires that the head of each 
agency continue to adjust CMP amounts, rounded to the nearest dollar, 
each year thereafter. Specifically, each CMP 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. Therefore, the CMP adjustment required to be performed in 2017 is 
to be based on the percentage change between the CPI for the month of 
October 2016 and October 2015.

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 the Background section of this document, the NRC has 
increased this amount several times since 1996 under the FCPIAA, as 
amended. Using the formula in the 2015 Improvements Act, the $280,469 
amount last established in July 2016 will increase by 1.636 percent, 
resulting in a new CMP amount of $285,057. This is based on the 
percentage change between the October 2016 CPI (241.729) and the 
October 2015 CPI (237.838).\2\ The NRC is amending 10 CFR 2.205 to 
reflect a new maximum CMP under the AEA in the amount of $285,057 per 
day, per violation. This represents an increase of $4,588.
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    \2\ These figures are confirmed by guidance from the Office of 
Management and Budget (OMB) concerning implementation of the 2015 
Improvements Act. See OMB M-17-11, Implementation of the 2017 annual 
adjustment pursuant to the Federal Civil Penalties Inflation 
Adjustment Act Improvements Act of 2015 (December 16, 2016), 
available at https://www.whitehouse.gov/sites/default/files/omb/memoranda/2017/m-17-11_0.pdf.
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    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). Since 1996 the NRC has adjusted this amount 
(currently set at $10,781) multiple times under the FCPIAA, as amended. 
Using the same previously discussed formula in the 2015 Improvements 
Act, the $10,781 amount will increase by 1.636 percent, resulting in a 
new CMP amount of $10,957. Therefore, the NRC is amending 10 CFR 13.3 
to reflect a new maximum CMP amount of $10,957 per claim. This 
represents an increase of $176.
    As permitted by the 2015 Improvements Act, the NRC may apply these 
increased CMP amounts to any penalties assessed by the agency after the 
effective date of this final rule (January 24, 2017), 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, based on the class of licensee and severity of 
the violation, in accordance with the NRC Enforcement Policy (ADAMS 
Accession No. ML16197A561).

III. Rulemaking Procedure

    The 2015 Improvements Act expressly states that agencies shall make 
the adjustments required by the act ``notwithstanding section 553 of 
title 5, United States Code''. Therefore, because this final rule has 
been expressly exempted by Congress from the notice and comment 
requirements of the Administrative Procedure Act (5 U.S.C. 553), it is 
being issued without prior public notice or opportunity for public 
comment, with an immediate effective date.

IV. Section-by-Section Analysis

10 CFR 2.205

    Paragraph (j) in Sec.  2.205 is revised by replacing ``$280,469'' 
with ``$285,057.''

10 CFR 13.3

    Paragraphs (a)(1)(iv) and (b)(1)(ii) in Sec.  13.3 are revised by 
replacing ``$10,781'' with ``$10,957.''

V. Regulatory Analysis

    This final rule adjusts for inflation the maximum CMPs 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 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. Therefore, these are the 
anticipated impacts of this final rule. 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 
(10 CFR 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

[[Page 8135]]

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 
notice 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 that 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. Backfitting 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 adjusts CMP amounts for violations of already-existing 
NRC regulations and requirements. This final rule does not modify any 
licensee system, 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 10 CFR 51.22(c)(1). Therefore, 
neither an environmental impact statement nor an environmental 
assessment has been prepared for this final rule.

X. Paperwork Reduction Statement

    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

0
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.

0
2. Amend Sec.  2.205 by revising paragraph (j) 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 $285,057 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:  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.

0
4. Amend Sec.  13.3 by revising paragraphs (a)(1)(iv) and (b)(1)(ii) 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 $10,957 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 $10,957 for 
each such statement.
* * * * *

    Dated in Rockville, Maryland, this 9th day of January, 2017.

    For the Nuclear Regulatory Commission.
Victor M. McCree,
Executive Director for Operations.
[FR Doc. 2017-01313 Filed 1-23-17; 8:45 am]
 BILLING CODE 7590-01-P