ML22327A145

Final Rule: Adjustment of Civil Penalties for Inflation for Fiscal Year 2023

ML22327A145
Person / Time
Issue date:	12/21/2022
From:	Dan Dorman NRC/EDO
To:
References
RIN 3150-AK59, NRC-2021-0025
Download: ML22327A145 (10)

Text

[7590-01-P]

NUCLEAR REGULATORY COMMISSION

10 CFR Parts 2 and 13

[NRC-2021-0025]

RIN 3150-AK59

Adjustment of Civil Penalties for Inflation for Fiscal Year 202 3

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 c an assess under statutes

enforced by the agency. These changes are mandated by the Fede ral Civil Penalties

Inflation Adjustment Act of 1990, as amended by the Federal Civ il Penalties Inflation

Adjustment Act Improvements Act of 2015. The NRC is amending i ts regulations to

adjust the maximum civil monetary penalty for a violation of th e Atomic Energy Act of

1954, as amended, or any regulation or order issued under the A tomic Energy Act from

$326,163 to $351,424 per violation, per day. Additionally, the NRC is amending

provisions concerning program fr aud civil penalties by adjustin g the maximum civil

monetary penalty under the Program Fraud Civil Remedies Act fro m $12,537 to $13,508

for each false claim or statement.

DATES: This final rule is effective on January 13, 2023.

ADDRESSES: Please refer to Docket ID NRC-2021-0025 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 meth ods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and

search for Docket ID NRC-2021-0025. Address questions about NR C dockets to Dawn

Forder; telephone: 301-415-3407; email: Dawn.Forder@nrc.gov. For technical

questions, contact the individual listed in the FOR FURTHER INF ORMATION

CONTACT section of this document.

• NRCs Agencywide Documents Access and Management System

(ADAMS): You may obtain publicly available documents online in the ADA MS Public

Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the

search, select Begin Web-based ADAMS Search. For problems wi th ADAMS, please

contact the NRCs Public Document Room (PDR) reference staff at 1-800-397-4209,

301-415-4737, or by e-mail to PDR.Resource@nrc.gov. The ADAMS accession number

for each document referenced (if it is available in ADAMS) is p rovided the first time that it

is mentioned in the SUPPLEMENTARY INFORMATION section.

• NRCs PDR: You may examine and purchase copies of public documents,

by appointment, at the NRCs PDR, Room P1 B35, One White Flint North, 11555

Rockville Pike, Rockville, Maryland 20852. To make an appointm ent to visit the PDR,

please send an email to PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-

4737, between 8:00 a.m. and 4:00 p.m. eastern time, Monday thro ugh Friday, except

Federal holidays.

FOR FURTHER INFORMATION CONTACT: Carrie McCann, Office of the General

Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 205 55-0001,

telephone: 301-415-0888; email: Carrie.McCann@nrc.gov.

2 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 Federal Civil Penalties Inflation Adjustmen t Act of 1990

(FCPIAA) to allow for regular adjustment for inflation of civil monetary penalties (CMPs),

maintain the deterrent effect of such penalties and promote com pliance 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). Pursuant to this authority, and as amended by the Debt

Collection Improvement Act of 1996 (Pub. L. 104-34, 110 Stat. 1 321-373), the NRC

increased via rulemaking the CMP amounts for violations of the Atomic Energy Act of

1954, as amended (AEA) (codified at § 2.205 of Title 10 of the Code of Federal

Regulations (10 CFR), Civil penalties) and Program Fraud Civil Remedies Act (codified

at § 13.3, Civil penalties and assessments) on four occasions between 1996 and

2008.1

1 Adjustment of Civil Penalties for Inflation (73 FR 54671; Sept. 23, 2008); Adjustment of Civil Penalties for Inflation (69 FR 62393; Oct. 26, 2004); Adjustment of Civil Penalties for Inflation; Miscellaneous Administrative Changes (65 FR 59270; Oct. 4, 2000); Adjustment of Civil Monetary Penalties for Inflation (61 FR 53554; Oct. 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

3 On November 2, 2015, Congress amended the FCPIAA through the Fe deral Civil

Penalties Inflation Adjustment Act Improvements Act of 2015 (20 15 Improvements Act)

(Sec. 701, Pub. L. 114-74, 129 Stat. 599). The 2015 Improvemen ts Act required that the

head of each agency perform an initial catch-up adjustment vi a rulemaking, adjusting

the CMPs enforced by that agency according to the percentage ch ange in the Consumer

Price Index (CPI) between the month of October 2015 and the mon th of October of the

calendar year when the CMP amount was last established by Congr ess. The NRC

published this catch-up rulemaking on July 1, 2016 (81 FR 43019 ).

The 2015 Improvements Act also requires that the head of each a gency continue

to adjust CMP amounts, rounded to the nearest dollar, on an ann ual basis. Specifically,

each CMP is to be adjusted based on the percentage change betwe en the CPI for the

month of October, and the CPI for the month of October for the previous year. The NRC

most recently adjusted its civil penalties for inflation accord ing to this statutory formula

on January 14, 2022 (87 FR 2310). This years adjustment is ba sed on the increase in

the CPI from October 2021 to October 2022.

II. Discussion

Section 234 of the AEA limits civil penalties for violations o f 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 amou nt several times since

1996 per the FCPIAA, as amended. Using the formula in the 2015 Improvements Act,

the $326,163 amount last established in January 2022 will incre ase by 7.745 percent,

resulting in a new CMP amount of $351,424. This is based on th e increase in the CPI

the size of the CMP amount, and the 2012 percentages based on the statutory formula were small enough that no adjustment resulted.

4 from October 2021 (276.589) to October 2022 (298.012). Therefo re, the NRC is

amending § 2.205 to reflect a new maximum CMP under the AEA in the amount of

$351,424 per day, per violation. This represents an increase o f $25,261.

Monetary penalties under the Program Fraud Civil Remedies Act w ere

established in 1986 at $5,000 per claim (Pub. L.99-509, 100 St at. 1938; 31 U.S.C.

3802). The NRC also has adjusted this amount (currently set at $12,537) multiple times

pursuant to the FCPIAA, as amended, since 1996. Using the form ula in the 2015

Improvements Act, the $12,537 amount last established in Januar y 2022 will also

increase by 7.745 percent, resulting in a new CMP amount of $13,508. Therefore, the

NRC is amending § 13.3 to reflect a new maximum CMP amount of $ 13,508 per claim or

statement. This represents an increase of $971.

As permitted by the 2015 Improvements Act, the NRC may apply th ese

increased CMP amounts to any penalties assessed by the agency a fter the effective

date of this final rule (January 13, 2023), regardless of wheth er the associated violation

occurred before or after this date (Pub. L. 114-74, 129 Stat. 6 00; 28 U.S.C. 2461 note).

The NRC assesses civil penalty amo unts for violations of the AEA based on the class of

licensee and severity of the violation, in accordance with the NRC Enforcement Policy,

which is available under ADAMS Accession No. ML22336A179. A co rresponding

update to the NRC Enforcement Policy is being published today i n the Rules section of

the Federal Register to reflect the updated CMP amount in § 2.205.

III. Rulemaking Procedure

The 2015 Improvements Act expressly exempts this final rule from the notice and

comment requirements of the Administrative Procedure Act by dir ecting agencies to

adjust CMPs for inflation notwithstanding section 553 of title 5, United States Code

5 (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 co mment, with an effective

date of January 13, 2023.

IV. Section-by-Section Analysis

§ 2.205 Civil penalties.

This final rule revises paragraph (j) by replacing $326,163 w ith $351,424.

§13.3 Basis for civil penalties and assessments.

This final rule revises paragraphs (a)(1)(iv) and (b)(1)(ii) by replacing $12,537

with $13,508.

V. Regulatory Analysis

This final rule adjusts for inflat ion 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 Con gress 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 t hat the power to impose

monetary civil penalties is important to deterring violations o f 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 pen alties for inflation, maintain

the deterrent effect of civil monetary penalties, and promote c ompliance with the law.

Therefore, these are the anticipated impacts of this rulemaking. Direct monetary

6 impacts fall only upon licensees or other persons subjected to NRC enforcement for

violations of the AEA and regulations and orders issued under t he AEA (§ 2.205), or

those licensees or persons subjected to liability pursuant to t he provisions of the

Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801-3812) and the NRCs

implementing regulations (10 CFR part 13).

VI. Regulatory Flexibility Act

The Regulatory Flexibility Act does not apply to regulations fo r which a Federal

agency is not required by law, including the rulemaking provisi ons of the Administrative

Procedure Act, 5 U.S.C 553(b), to publish a general notice of p roposed rulemaking

(5 U.S.C. 604). As discussed in this notice under Section III, Rulemaking Procedure,

of this document, this final rule is exempt from the requiremen ts 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 rul e. 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 CMP 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 requi red for the construction

or operation of any facility.

VIII. Plain Writing

7 The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federa l 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 we ll as the Presidential

Memorandum, Plain Language in Government Writing, published J une 10, 1998 (63

FR 31885).

IX. National Environmental Policy Act

The NRC has determined that this final rule is the type of act ion 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, t herefore, 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 Revi ew Act (5 U.S.C. 801-

808). However, the Office of Management and Budget has not fou nd it to be a major

rule as defined in the Congressional Review Act.

List of Subjects

10 CFR Part 2

8 Administrative practice and procedure, Antitrust, Byproduct ma terial, Classified

information, Confidential business information; Freedom of info rmation, Environmental

protection, Hazardous waste, Nuclear energy, Nuclear materials, Nuclear power plants

and reactors, Penalties, Reporting and recordkeeping requiremen ts, Sex discrimination,

Source material, Special nuclear material, Waste treatment and disposal.

10 CFR Part 13

Administrative practice and procedure, Claims, Fraud, Organizat ion and function

(Government agencies), Penalties.

For the reasons set out in the preamble and under the authorit y of the Atomic

Energy Act of 1954, as amended; the Energy Reorganization Act o f 1974, as amended;

28 U.S.C. 2461 note; and 5 U.S.C. 552 and 553, the NRC is adopt ing 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 follo ws:

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. 203 9, 2073, 2092, 2093, 2111, 2132, 2133, 2134, 2135, 2201, 2231, 2232, 2233, 2234, 223 6, 2239, 2241, 2282);

Energy Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 58 41, 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, amend paragraph (j) by removing the amount $326,163 and

adding in its place the amount $351,424.

9 PART 13--PROGRAM FRAUD CIVIL REMEDIES

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

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, amend paragraphs (a)(1)(iv) and (b)(1)(ii) by rem oving the amount

$12,537 and adding in its place the amount $13,508.

Dated : December 21, 2022.

FortheNuclearR egulatory Commission.

/RA/

Daniel H. Dorman ExecutiveDirectorforOperations.

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