The US Nuclear Regulatory Commission (NRC) issued a final rule in the Federal Register on January 15 updating the maximum amounts of civil monetary penalties it can impose. The final rule revises 10 CFR 2.205(j) to increase the maximum penalty the NRC can issue from $298,211 to $303,471 per violation, per day, an increase of 1.764%. Similarly, the final rule revises 10 CFR 13.3 to increase the amount of a civil penalty under the Program Fraud Civil Remedies Act from $11,463 to $11,665. These monetary penalty amounts go into effect immediately and can be assessed regardless of whether the violation occurred before or after January 15.

As we previously reported regarding last year’s revisions to the civil monetary amounts, the NRC is required by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, to annually adjust the amounts of the civil monetary penalties for inflation in accordance with a statutory formula set forth in the legislation. The NRC last updated the maximum amount of civil penalties in February 2019.

Law360 recently named Morgan Lewis Energy Group of the Year for our work assisting energy clients in deploying innovative pricing models, navigating complicated regulatory requirements, and managing crises. Partners Kathryn Sutton and Richard Filosa discussed the firm’s significant victories for clients that earned the group a place among Law360’s Practice Groups of the Year in this profile. 

Read the Law360 article.  

The US Department of the Treasury’s Committee on Foreign Investment in the United States (CFIUS) has published the final rules implementing the Foreign Investment Risk Review Modernization Act (FIRRMA). FIRRMA piloted noticeable changes and higher awareness of CFIUS and its impact on foreign investment in the United States. Our firm's CFIUS working group is closely monitoring CFIUS’s January 13 release of the final regulations under FIRRMA and will provide an analysis on the regulations and the anticipated impact on cross-border investments. For more information, read CFIUS Issues Final Regulations Under FIRRMA.

Our energy lawyers have prepared a LawFlash addressing the notice of proposed rulemaking (NPRM), “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act,” published today in the Federal Register by the White House’s Council on Environmental Quality (CEQ). The proposed rule has four major elements: (1) to modernize, simplify, and accelerate the NEPA process; (2) clarify terms, application, and scope of NEPA review; (3) enhance coordination with states, tribes, and localities; and (4) reduce unnecessary burdens and delays.

To date, the commercial nuclear power industry has expressed strong support for the types of rule changes proposed by the CEQ in its NPRM, as they are intended to streamline and expedite the federal agency NEPA review process. Those in the industry that depend on federal agency action when advancing projects and securing permits should actively participate in the proposed rulemaking and help the CEQ build a sufficient agency record to defend against any later litigation challenges to new regulations.

Read the full LawFlash.

The NRC Staff held a public meeting on December 12 at its headquarters in Rockville, Maryland, to discuss subsequent license renewal (SLR) lessons learned. This was the second such meeting this year, with a third planned for early 2020.

The purpose of the meeting was to discuss comprehensive lessons learned regarding key technical issues common to the first three SLR applications submitted to the agency for review and approval. Ultimately, the objective is to update and clarify NRC’s SLR regulatory guidance documents, capturing key lessons learned and further ensuring a review process that is both effective and efficient for future applicants. At the outset of the meeting, the NRC Staff made clear that the next planned meeting will focus on process-related improvements and lessons learned.

The NRC’s Office of Enforcement (OE) recently issued an enforcement guidance memorandum (EGM) to reinforce the NRC’s Enforcement Policy (Policy) and earlier guidance on identifying and documenting findings and associated violations in inspection reports. The need for this EGM arose after OE became “aware that some inspection staff may be misinterpreting and misapplying” the Policy and guidance by documenting all issues of concern, regardless of significance.

The EGM rejects that inspection staff misinterpretation and makes it clear that the inspection program is not meant to document all findings (and associated violations). Instead, inspection findings and associated violations are to be identified and documented as specified in the Inspection Manual, which follows the Policy and earlier OE guidance. OE reinforcement of this violation documentation policy provides licensees with a basis for challenging inspector inclusion of low-level, non-safety-significant findings or violations in an inspection report.

The NRC recently issued an allegation guidance memorandum (AGM) to provide guidance on the handling of certain drug and alcohol fitness-for-duty (FFD) violations. The AGM directs that licensee-identified drug and alcohol FFD violations by nonlicensed individuals not be processed in the NRC’s allegation program. This guidance took effect immediately and will be incorporated into the Allegation Manual. The next revision of Management Directive (MD) 8.8 will also incorporate this guidance by adding “Licensee-identified [FFD] drug- and alcohol-related violations by nonlicensed individuals” to the list of concerns excluded from the definition of an “allegation.”

The AGM is the result of changes to Section 4.1 of the NRC’s Enforcement Policy approved by the Commission on April 18, 2019. As we discussed at that time, an NRC Staff review found that for most FFD drug and alcohol violations, the licensees had identified the issue and conducted an internal investigation into the violation by the time the NRC received notification of the violation. Staff also found that licensees were imposing the penalties required by 10 CFR § 26.75 to appropriately disposition individual FFD drug and alcohol issues before most NRC investigations began.

Our immigration lawyers prepared a LawFlash that provides guidance regarding immigration status assessments. With the degree of scrutiny applied to H-1B petitions at an all-time high, it is important for employers, including those in the nuclear energy industry, to begin assessing their H-1B needs.

The US Department of Energy (DOE) is requesting comments on whether there is a sufficient supply of molybdenum-99 (Mo‑99) to meet medical needs without the export of highly enriched uranium (HEU) from the United States. Comments are due by December 27, 2019. The comments will support a certification that the secretary of Energy must submit in early 2020 pursuant to the American Medical Isotopes Production Act of 2012, Pub. L. 112-239, 126 Stat. 2211 (the Act). The content of this certification will determine whether the US Nuclear Regulatory Commission (NRC) will have authority to issue HEU export licenses for Mo-99 production in foreign research and test reactors.

According to the notice in the November 27 Federal Register, “Historically, the United States has not had the capability to produce Mo-99 domestically and, until 2018, imported 100 percent of its supply from international producers, some of which was produced using targets fabricated with proliferation sensitive HEU.” Congress passed the Act as part of a decades-long effort to ensure domestic availability of Mo‑99, which is used in medical diagnostic and therapeutic procedures. According to the notice, approximately 80% of all of these procedures depend on the use of technetium-99, a decay product of Mo-99. Importantly, Section 3174 of the Act amended the Atomic Energy Act to prohibit the NRC from issuing licenses to export HEU from the United States for purposes of medical isotope production, effective seven years from the date of enactment of the Act. The Act became law on January 2, 2013, and thus the ban on NRC export licenses is scheduled to go into effect in early 2020, unless it is extended through a certification from the Energy secretary.