[Senate Report 109-100]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 154
109th Congress                                                   Report
                                 SENATE
 1st Session                                                    109-100

======================================================================



 
                NUCLEAR FEES REAUTHORIZATION ACT OF 2005

                                _______
                                

                  July 1, 2005.--Ordered to be printed

                                _______
                                

    Mr. Inhofe, from the Committee on Environment and Public Works, 
                        submitted the following

                                 REPORT

                         [to accompany S. 858]

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 858) to reauthorize Nuclear Regulatory 
Commission user fees, and for other purposes, having considered 
the same, reports favorably thereon with an amendment, and 
recommends that the bill, as amended, do pass.

                           General Statement

    This legislation addresses critical non-security needs that 
will help to better align Nuclear Regulatory Commission's (NRC 
or Commission) limited resources and capabilities so as to 
accomplish the Commission's goals. In addition to extending 
NRC's authority to recover 90 percent of its costs from 
licensee fees, the legislation provides needed NRC reforms and 
the incentives for the NRC to attract both young and retired 
technical expertise.

                               Background

History of NRC Fee Authority
    In 1986, Congress enacted the Consolidated Omnibus Budget 
Reconciliation Act of 1985, or COBRA-85 (P.L. 99-272). Section 
7601 of this legislation directed the NRC to assess and collect 
annual fees from its licensees in an amount that, when added to 
other fees such as fees for service collected in the same 
fiscal year, would not exceed 33 percent of NRC costs for that 
fiscal year. COBRA-85 directed that this annual charge should 
be `reasonably related to the regulatory service provided by 
the Commission and [must] fairly reflect the cost to the 
Commission of providing such service.'
    In the late 1980's, Congress twice acted to increase the 
percentage of the NRC budget that was to be collected in 
licensee fees. Congress enacted the Omnibus Budget 
Reconciliation Act of 1987 (P.L. 100-203), which directed the 
NRC to collect up to 45 percent of its budget in fees in each 
of fiscal years 1988 and 1989. The Omnibus Budget 
Reconciliation Act of 1989 (P.L. 101-234) extended this 
requirement through fiscal year 1990.
    One year later, Congress approved the Omnibus Budget 
Reconciliation Act of 1990, known as OBRA-90 (P.L. 101-508). 
Section 6101 of that legislation required the NRC to collect 
fees-for-service from NRC applicants and annual fees from NRC 
licensees. With regard to fees-for-service, OBRA-90 required 
that pursuant to the Independent Offices Appropriations Act, 
the NRC continue to charge any applicant or other person 
receiving a service from the NRC a fee covering the cost to the 
NRC of providing the service. With regard to annual charges, 
the legislation directed the NRC to `collect annual fees from 
licensees that to the maximum extent practicable . . . have a 
reasonable relationship to the cost of providing regulatory 
services' and in an amount that, when added to the amount 
collected in fees for service and the amount appropriated for 
the Nuclear Waste Fund, would approximate fully 100 percent of 
NRC budget authority for that fiscal year. To meet the new 
requirement, the NRC adopted a policy of collecting annual fees 
not only from reactor licensees, but materials licensees as 
well.
    OBRA-90 provided this fee authority for a period of 5 
years, through fiscal year 1995. Since then, that authority has 
been extended three times: for an additional 3 years (through 
fiscal year 1998) by the Omnibus Budget Reconciliation Act of 
1993, or OBRA-93 (P.L. 103-66); for an additional year (through 
fiscal year 1999) by the 1998 Energy and Water Development 
appropriations legislation (P.L. 105-245); and for an 
additional year (through fiscal year 2000) by the 1999 Energy 
and Water Development appropriations legislation (P.L. 106-60).
Fairness Concerns
    In the early 1990's, concerns were raised regarding the 
fairness of the fee assessment structure. In the Energy Policy 
Act of 1992 (P.L. 102-486), Congress took steps to address one 
perceived inequity by statutorily excluding certain federally 
owned research reactors from the NRC annual fee requirement. In 
addition, the 1992 Act directed the NRC to undertake a review 
of its policy for assessing annual charges, solicit public 
comment on necessary changes to such policy, and make 
recommendations to Congress on possible changes to existing law 
that could prevent an unfair burden from being levied on 
certain NRC licensees.
    Accordingly, in February 1994 the NRC submitted to Congress 
its `Report to Congress on the U.S. Nuclear Regulatory 
Commission's Licensee Fee Policy Review Required by the Energy 
Policy Act of 1992.' The Report took into account not only the 
566 public comments received during the compilation of the 
Report, but also the more than 1,000 public comments submitted 
during consideration of previous fee-related rules, the 
thousands of letters and phone calls received regarding fees, 
two petitions for rulemaking, a court decision, and an NRC-
requested review by the Commission's Inspector General.
    The 1994 Report identified two key concerns regarding 
fairness and equity: first, that not all direct beneficiaries 
of NRC activities pay fees; and second, that fees are based on 
the NRC's cost of performance, rather than on the licensees' 
perception of benefits received. With regard to the question of 
fees that are not directly related to services to licensees, 
the Report acknowledged that the fee requirements inherently 
placed a burden on licensees when certain activities such as 
some international activities, oversight of and regulatory 
support to the Agreement State program, the statutory fee 
exemption for Federal agencies, and the NRC's fee exemptions or 
reductions for nonprofit educational institutions and small 
entities are considered. As for the issue of benefits 
perceived, the Report concluded that the concern had merit when 
considered with regard to the materials regulatory program.
    Finally, the Report included legislative recommendations to 
Congress to remove certain costs from the fee base, the net 
effect of which would be the recovery of 90 percent of the 
NRC's budget authority through fees. While the NRC initiated 
some changes in its fee structure, Congress did not act on the 
legislative recommendations.

               Past Committee Actions on Recommendations

    On two separate occasions, the committee has acted on 
legislation that would address fee collection. On May 18, 1998, 
former Environment and Public Works Committee Chairman Chafee 
introduced the NRC Fairness in Funding Act of 1998 (S. 2090), 
legislation to extend the authority of the NRC to collect fees 
through 2003, and to exclude from the fee base those costs for 
which it would not be fair and equitable to assess charges on 
licensees. Joining him as original cosponsors were Subcommittee 
on Clean Air, Wetlands, Private Property, and Nuclear Safety 
Chairman Inhofe and Ranking Member Graham; Subcommittee on 
Superfund, Waste Control, and Risk Assessment Chairman Smith; 
and Senator Jeffords. S. 2090 was reported favorably by the 
full committee on May 21; however, the bill did not receive 
Senate approval prior to the end of the 105th Congress.
    On September 23, 1999, Senator Inhofe introduced the NRC 
Fairness in Funding Act of 1999 (S. 1627), legislation to 
extend the authority of the NRC to collect fees through 2004, 
and to exclude inequitable costs from the fee base. On 
September 29, Senator Inhofe offered an amendment in the nature 
of a substitute on behalf of Senators Chafee, Baucus, and 
Graham. Title I of that amendment extends the NRC's fee 
authority through 2005, excludes inequitable costs from the fee 
base, and allows fee recovery from other government agencies 
for NRC services. Title II of the amendment amends current law 
to enhance nuclear safety and physical security, increase NRC 
efficiency, and maximize Commission resources. The full 
committee adopted the substitute amendment, and then favorably 
reported S. 1627 as amended by unanimous consent on April 13th, 
2000. S. 1627 then passed the Senate with an amendment and an 
amendment to the title by unanimous consent on April 13, 2000. 
Since the passage of S. 1627 out of committee, the NRC has 
proceeded to implement many of the requirements of S. 1627 
through orders and rulemaking.

              Current Committee Action on Recommendations

    The committee continues to support recovery of NRC 
regulatory costs, including the costs of the implementation of 
additional security measures, through the imposition of fees on 
licensees. However, the committee acknowledges that the NRC 
should retain an appropriated account for security-related 
planning activities that have dramatically increased since 
September 11, 2001.
    On April 20th 2005, Senator Voinovich introduced S. 858 
which contains many similar provisions to S. 1627. On June 8th 
2005, S. 858 was ordered to be reported by the full committee 
with an amendment in the nature of a substitute by unanimous 
consent. Title I of S. 858 allows the NRC to continue to 
recover 90 percent of its budget from licensee fees through 
2011. Title II includes several NRC reform provisions that are 
critical to better aligning the NRC's resources and 
capabilities. Title III includes human capital provisions 
needed to ensure that NRC meets its long-term staffing needs. A 
section-by-section analysis of S. 858 as amended follows.

                      Section-by-Section Analysis

Section 1. Short title; table of contents.
    This Act may be cited as the ``Nuclear Fees Reauthorization 
Act of 2005''.

                         TITLE I--NRC USER FEES

Sec. 101. Nuclear Regulatory Commission user fees and annual charges.
    Section 6101 of the Omnibus Budget Reconciliation Act of 
1990 (42 U.S.C. 2214) is amended by extending the Nuclear 
Regulatory Commission's authority to recover 90 percent of its 
costs from licensee fees through 2011. Absent congressional 
action, amount collected via licensee fees would be reduced to 
approximately 33 percent at the end of December, 2005. Excluded 
from these fees are costs incurred from regulating residual 
defense radioactive waste and homeland security activities. The 
90 percent level was set in law in 2000 via Public Law 106-377.

                          TITLE II--NRC REFORM

Sec. 201. Treatment of nuclear reactor financial obligations.
    Section 541(b) of title 11, United States Code, is amended 
to ensure that funds held to pay for decontamination and 
decommissioning of nuclear power plants will not be used to 
satisfy the claim of any creditor in a bankruptcy proceeding 
under this title until decommissioning is complete. The 
requirement to use such funds for decommissioning applies, 
under this section, regardless of who owns or controls the 
funds.
Sec. 202. Period of combined license.
    Section 103(c) of the Atomic Energy Act of 1954 (42 U.S.C. 
2135 (c)) is amended to ensure that the initial duration of a 
combined construction and operating license may be up to 40 
years from the date on which the NRC finds that the acceptance 
criteria of the license are met. This clarification ensures 
that the duration period of combined licenses is consistent 
with that of separate operating licenses.
Sec. 203. Elimination of NRC antitrust reviews.
    Section 105(c) of the Atomic Energy Act of 1954 (42 U.S.C. 
2135 (c)) is amended so as to eliminate prospectively the NRC's 
antitrust review requirement in connection with applications to 
construct or operate a commercial utilization or production 
facility. Given the broad antitrust authority of both the 
Federal Energy Regulatory Commission (FERC) and the Department 
of Justice, the NRC's authority is rarely used and duplicative, 
and does not need to be maintained. This provision is intended 
to affect only the NRC's antitrust responsibilities with 
respect to its regulatory actions. The committee intends such 
reviews to be conducted, as appropriate, by the Department of 
Justice and FERC, and this provision does not diminish the 
authority of those agencies to conduct antitrust reviews 
associated with licensing actions at nuclear facilities. The 
NRC remains responsible for assuring that its licensees 
continue to operate plants safely, regardless of changes that 
may take place in the structure of the industry. Interested 
members of the public therefore will continue to have the 
opportunity to intervene in NRC proceedings to raise potential 
safety issues related to those changes.
Sec. 204. Medical isotope production.
    Section 134 of the Atomic Energy Act of 1954 (42 U.S.C. 
2160d) is amended allowing for the U.S. to continue exporting 
highly enriched uranium (HEU) to Canada, Belgium, France, 
Germany, and the Netherlands for the production of medical 
isotopes on the condition that these countries agree to switch 
to low enriched uranium (LEU) as soon as possible and that LEU 
fuel for their reactors be under active development. The NRC is 
also to review current security requirements for HEU usage. The 
National Academy of Sciences is also required to study the 
feasibility of producing medical isotopes in LEU reactors.
Sec. 205. Cost recovery from government agencies.
    Section 161(w) of the Atomic Energy Act of 1954 (42 U.S.C. 
2201 (w)) is amended to allow the NRC to recover fees from 
other government agencies for NRC services (such as licensing 
and inspection services). It permits the NRC to recover fees 
from other Federal agencies for NRC services.
Sec. 206. Conflicts of interest relating to contracts and other 
        arrangements.
    Section 170A(b) of the Atomic Energy Act of 1954 (42 U.S.C. 
2210a(b)) is amended to allow the NRC to access specialized 
expertise with the Department of Energy or a contractor even 
though there may be a conflict of interest, however the 
contracts to do such work require adequate justification. This 
is intended to be limited to extraordinary circumstances, 
specifically so that NRC can access Department of Energy labs 
when the expertise does not exist elsewhere.
Sec. 207. Authorization of appropriations.
    Such sums as necessary are authorized to carry out this 
title for fiscal year 2006 and each subsequent fiscal year.

                TITLE III--NRC HUMAN CAPITAL PROVISIONS

Sec. 301. Provision of support to university nuclear safety, security, 
        and environmental protection programs.
    Section 31(b) of the Atomic Energy Act of 1954 (42 U.S.C. 
2051 (b)) to is amended to authorize the NRC to provide 
incentives such as grants, loans, cooperative agreements, 
contracts, etc. to institutions of higher education to support 
studies, courses, training in areas such as nuclear safety, 
security, environmental protection, etc.
    The additional authority provided by this section would 
enable the Commission to foster the development of the next 
generation of nuclear regulatory specialists by funding 
university programs that would help address shortages of 
individuals with critical skills needed by the NRC.
Sec. 302. Recruitment tools.
    A new section 170C is added to the Atomic Energy Act of 
1954 (42 U.S.C. 2201 et seq.) that authorizes the NRC to 
purchase recruitment items of nominal value to help recruit new 
employees.
Sec. 303. Expenses authorized to be paid by the Nuclear Regulatory 
        Commission.
    A new section 170D is added to the Atomic Energy Act of 
1954 (42 U.S.C. 2201 et seq.) that authorizes the NRC to pay 
for the transportation, lodging, and subsistence of students 
working at the NRC in areas critical to the mission of the NRC 
while attending institutions of higher education. It addresses 
current NRC difficulties in hiring students, for summer and 
other short term periods of employment because of the areas' 
high cost of travel, housing, and related expenses. These 
student employees are a valuable source for future recruitment 
for NRC employment. Assistance with the high cost of housing 
will help ensure the agency's ability to hire the best.
    This section would also authorize the NRC to pay for costs 
of health and medical services furnished, pursuant to an 
agreement with the State Department, to NRC employees and their 
dependents serving in foreign countries. This provision is 
needed to provide NRC staff and their dependents that are 
assigned overseas health and medical services from the United 
States embassies and health facilities in those countries.
Sec. 304. Nuclear Regulatory Commission scholarship and fellowship 
        program.
    Section 243 is added to the Atomic Energy Act of 1954 (42 
U.S.C. 2015a) authorizing the NRC to provide scholarships and 
fellowships in areas critical to the NRC's mission. To maintain 
its ability to protect the health and safety of the public and 
the common defense and security, the agency must be able to 
recruit new employees who have the skills necessary for the NRC 
to continue to carry out its mission. The section would also 
establish a similar program for the award by NRC of fellowships 
to graduate students. A student who receives such a scholarship 
or fellowship would have to be a citizen of the United States.
Sec. 305. Partnership program with institutions of higher education.
    A new Section 244 is added to the Atomic Energy Act of 1954 
(42 U.S.C. 2015 et seq.) authorizing NRC to establish and 
participate in partnership programs with institutions of higher 
education, including Historically Black Colleges and 
Universities, Hispanic Serving Institutions and Tribal 
Colleges. These could include collaborative research, 
mentoring, instruction, and training activities conducted at 
these educational institutions or conducted at NRC facilities.
Sec. 306. Elimination of pension offset for certain rehired Federal 
        retirees.
    A new section 170E is added to the Atomic Energy Act of 
1954 (42 U.S.C. 2201 et seq.) provides the NRC with the 
authority to rehire on a case-by-case basis retired employees 
as contractors without adversely affecting their pensions. This 
authority will enable the agency to more expeditiously return 
former Federal employees to Federal service when those 
employees are needed for the purpose of maintaining the 
agency's ability to protect the public health and safety and 
common defense and security.
Sec. 307. Authorization of appropriations.
    Such sums as necessary are authorized to carry out this 
title for fiscal year 2006 and each subsequent fiscal year.

                                Hearings

    Since the committee approved S. 1627 on April 13, 2000, it 
has held annual oversight hearings. There was one general 
oversight hearing held on the Nuclear Regulatory Commission in 
the 109th Congress during which testimony on S. 858 was taken. 
Witnesses included: Nils J. Diaz, Chairman, U.S. Nuclear 
Regulatory Commission; Edward McGaffigan, Jr., Commissioner, 
U.S. Nuclear Regulatory Commission; Gregory B. Jaczko, 
Commissioner, U.S. Nuclear Regulatory Commission; Jim Wells, 
Director, Natural Resources and the Environment, Government 
Accountability Office; Marilyn C. Kray, President, NuStart 
Energy Development; Dr. Edwin Lyman, Senior Staff Scientist, 
Global Security Program Union of Concerned Scientists.

                             Rollcall Votes

    Section 7(b) of rule XXVI of the Standing Rules of the 
Senate and the rules of the Committee on Environment and Public 
Works require that any roll call votes taken during 
consideration of legislation be noted in the report.
    The Committee on Environment and Public Works met to 
consider S. 858 on June 8, 2005. The committee voted favorably 
to report S. 858 by voice vote.

                      Regulatory Impact Statement

    Section 11(b) of rule XXVI of the Standing Rules of the 
Senate requires publication in the report of the committee's 
estimate of the regulatory impact of the bill as reported. S. 
858, as reported, is expected to impose no new regulatory 
impact. This bill will not affect the personal privacy of 
individuals.

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act of 1995 
(P.L. 104-4), the committee makes the following evaluation of 
the Federal mandates contained in the reported bill. S. 858, as 
reported, impose no Federal intergovernmental mandates on 
State, local, or tribal governments.

                          Cost of Legislation

    Section 403 of the Congressional Budget and Impoundment Act 
requires each report to contain a statement of the cost of a 
reported bill prepared by the Congressional Budget Office. 
Senate Rule XXVI paragraph 11(a)(3) allows the report to 
include a statement of the reasons why compliance is 
impracticable. The committee has requested this statement from 
the Congressional Budget Office and will publish it in the 
Congressional Record when it becomes available.

                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: Existing law proposed to be 
omitted is enclosed in [black brackets], new matter is printed 
in italic, existing law in which no change is proposed is shown 
in roman:
                              ----------                              


                           [11 U.S.C. 541(B)]

    Sec. 541. Property of the Estate
    (a) * * *

           *       *       *       *       *       *       *

    (b) Property of the estate does not include--
            (1) * * *

           *       *       *       *       *       *       *

            (4) any interest of the debtor in liquid or gaseous 
        hydrocarbons to the extent that--
                    (A)(i) the debtor has transferred or has 
                agreed to transfer such interest pursuant to a 
                farmout agreement or any written agreement 
                directly related to a farmout agreement; and
                            (ii) but for the operation of this 
                        paragraph, the estate could include the 
                        interest referred to in clause (i) only 
                        by virtue of section 365 or 544(a)(3) 
                        of this title; or
                    (B)(i) the debtor has transferred such 
                interest pursuant to a written conveyance of a 
                production payment to an entity that does not 
                participate in the operation of the property 
                from which such production payment is 
                transferred; and
                            (ii) but for the operation of this 
                        paragraph, the estate could include the 
                        interest referred to in clause (i) only 
                        by virtue of section 542 of this title; 
                        [or]
            (5) any interest in cash or cash equivalents that 
        constitute proceeds of a sale by the debtor of a money 
        order that is made--
                    (A) on or after the date that is 14 days 
                prior to the date on which the petition is 
                filed; and
                    (B) under an agreement with a money order 
                issuer that prohibits the commingling of such 
                proceeds with property of the debtor 
                (notwithstanding that, contrary to the 
                agreement, the proceeds may have been 
                commingled with property of the debtor),
            unless the money order issuer had not taken action, 
        prior to the filing of the petition, to require 
        compliance with the prohibition[.] ; or
            (6) funds accumulated or otherwise designated for 
        decontamination and decommissioning pursuant to a 
        regulation or order of the Nuclear Regulatory 
        Commission for a nuclear power reactor licensed under 
        section 103 or 104 b. of the Atomic Energy Act of 1954 
        (42 U.S.C. 2133, 2134(b)).
    Paragraph (4) shall not be construed to exclude from the 
estate any consideration the debtor retains, receives, or is 
entitled to receive for transferring an interest in liquid or 
gaseous hydrocarbons pursuant to a farmout agreement.

           *       *       *       *       *       *       *

                              ----------                              


ATOMIC ENERGY ACT OF 1954

           *       *       *       *       *       *       *


             CHAPTER 1. DECLARATION, FINDINGS, AND PURPOSE

    Section 1. Declaration.--Atomic energy is capable of 
application for peaceful as well as military purposes. It is 
therefore declared to be the policy of the United States that--
            a. * * *

           *       *       *       *       *       *       *

    Sec. 31. Research Assistance.--
    a. * * *

           *       *       *       *       *       *       *

    [b. The Commission is further authorized to make]
    b. Grants and Contributions.--The Nuclear Regulatory 
Commission is authorized--
            (1) to make grants and contributions to the cost of 
        construction and operation of reactors and other 
        facilities and other equipment to colleges, 
        universities, hospitals, and eleemosynary or charitable 
        institutions for the conduct of educational and 
        training activities relating to the fields in 
        subsection a[.] ; and
            (2) to provide grants, loans, cooperative 
        agreements, contracts, and equipment to institutions of 
        higher education (as defined in section 102 of the 
        Higher Education Act of 1965 (20 U.S.C. 1002)) to 
        support courses, studies, training, curricula, and 
        disciplines pertaining to nuclear safety, security, or 
        environmental protection, or any other field that the 
        Nuclear Regulatory Commission determines to be critical 
        to the regulatory mission of the Nuclear Regulatory 
        Commission.

           *       *       *       *       *       *       *

    Sec. 103. Commercial Licenses.--
    a. * * *

           *       *       *       *       *       *       *

    c. Each such license shall be issued for a specified 
period, as determined by the Commission, depending on the type 
of activity to be licensed, but not exceeding [forty years] 40 
years from the authorization to commence operations, and may be 
renewed upon the expiration of such period.

           *       *       *       *       *       *       *

    Sec. 105. Antitrust Provisions.--
    a. * * *

           *       *       *       *       *       *       *

    c. (1) The Commission shall promptly transmit to the 
Attorney General a copy of any license application provided for 
in paragraph (2) of this subsection, and a copy of any written 
request provided for in paragraph (3) of this subsection; and 
the Attorney General shall, within a reasonable time, but in no 
event to exceed 180 days after receiving a copy of such 
application or written request, render such advice to the 
Commission as he determines to be appropriate in regard to the 
finding to be made by the Commission pursuant to paragraph (5) 
of this subsection. Such advice shall include an explanatory 
statement as to the reasons or basis therefor.
            (2) Paragraph (1) of this subsection shall apply to 
        an application for a license to construct or operate a 
        utilization or production facility under section 103: 
        Provided, however, That paragraph (1) shall not apply 
        to an application for a license to operate a 
        utilization or production facility for which a 
        construction permit was issued under section 103 unless 
        the Commission determines such review is advisable on 
        the ground that significant changes in the licensee's 
        activities or proposed activities have occurred 
        subsequent to the previous review by the Attorney 
        General and the Commission under this subsection in 
        connection with the construction permit for the 
        facility.
            (3) With respect to any Commission permit for the 
        construction of a utilization or production facility 
        issued pursuant to subsection 104 b. prior to the 
        enactment into law of this subsection, any person who 
        intervened or who sought by timely written notice to 
        the Commission to intervene in the construction permit 
        proceeding for the facility to obtain a determination 
        of antitrust considerations or to advance a 
        jurisdiction basis for such determination shall have 
        the right, upon a written request to the Commission, to 
        obtain an antitrust review under this section of the 
        application for an operating license. Such written 
        request shall be made within 25 days after the date of 
        initial Commission publication in the Federal Register 
        of notice of the filing of an application for an 
        operating license for the facility or the date of 
        enactment into law of this subsection, whichever is 
        later.
            (4) Upon the request of the Attorney General, the 
        Commission shall furnish or cause to be furnished such 
        information as the Attorney General determines to be 
        appropriate for the advice called for in paragraph (1) 
        of this subsection.
            (5) Promptly upon receipt of the Attorney General's 
        advice, the Commission shall publish the advice in the 
        Federal Register. Where the Attorney General advises 
        that there may be adverse antitrust aspects and 
        recommends that there be a hearing, the Attorney 
        General or his designee may participate as a party in 
        the proceedings thereafter held by the Commission on 
        such licensing matter in connection with the subject 
        matter of his advice. The Commission shall give due 
        consideration to the advice received from the Attorney 
        General and to such evidence as may be provided during 
        the proceedings in connection with such subject matter, 
        and shall make a finding as to whether the activities 
        under the license would create or maintain a situation 
        inconsistent with the antitrust laws as specified in 
        subsection 105 a.
            (6) In the event the Commission's findings under 
        paragraph (5) is in the affirmative, the Commission 
        shall also consider, in determining whether the license 
        should be issued or continued, such other factors, 
        including the need for power in the affected area, as 
        the Commission in its judgment deems necessary to 
        protect the public interest. On the basis of its 
        findings, the Commission shall have the authority to 
        issue or continue a license as applied for, to refuse 
        to issue a license, to rescind a license or amend it, 
        and to issue a license with such conditions as it deems 
        appropriate.
            (7) The Commission, with the approval of the 
        Attorney General, may except from any of the 
        requirements of this subsection such classes or types 
        of licenses as the Commission may determine would not 
        significantly affect the applicant's activities under 
        the antitrust laws as specified in subsection 105 a.
            (8) With respect to any application for a 
        construction permit on file at the time of enactment 
        into law of this subsection, which permit would be for 
        issuance under section 103, and with respect to any 
        application for an operating license in connection with 
        which a written request for an antitrust review is made 
        as provided for in paragraph (3), the Commission, after 
        consultation with the Attorney General, may, upon 
        determination that such action is necessary in the 
        public interest to avoid unnecessary delay, establish 
        by rule or order periods for Commission notification 
        and receipt of advice differing from those set forth 
        above and may issue a construction permit or operating 
        license in advance of consideration of and findings 
        with respect to the matters covered in this subsection: 
        Provided, That any construction permit or operating 
        license so issued shall contain such conditions as the 
        Commission deems appropriate to assure that any 
        subsequent findings and orders of the Commission with 
        respect to such matters will be given full force and 
        effect.
            (9) Applicability.--This subsection does not apply 
        to an application for a license to construct or operate 
        a utilization facility or production facility under 
        section 103 or 104 b., if the application is filed on 
        or after, or is pending on, the date of enactment of 
        this paragraph.

           *       *       *       *       *       *       *

    Sec. 134. Further Restrictions on Exports.--
    [b.] a. As used in this section--
            (1) the term ``alternative nuclear reactor fuel or 
        target'' means a nuclear reactor fuel or target which 
        is enriched to less than 20 percent in the isotope U-
        235;
            (2) the term ``highly enriched uranium'' means 
        uranium enriched to 20 percent or more in the isotope 
        U-235; and
            (3) a fuel or target ``can be used'' in a nuclear 
        research or test reactor if--
                    (A) the fuel or target has been qualified 
                by the Reduced Enrichment Research and Test 
                Reactor Program of the Department of Energy, 
                and
                    (B) use of the fuel or target will permit 
                the large majority of ongoing and planned 
                experiments and isotope production to be 
                conducted in the reactor without a large 
                percentage increase in the total cost of 
                operating the reactor.
    [a.] [b. The Commission] b.Restrictions.--Except as 
provided in subsection c., the Nuclear Regulatory Commission 
may issue a license for the export of highly enriched uranium 
to be used as a fuel or target in a nuclear research or test 
reactor only if, in addition to any other requirement of this 
Act, the Commission determines that--
            (1) there is no alternative nuclear reactor fuel or 
        target enriched in the isotope 235 to a lesser percent 
        than the proposed export, that can be used in that 
        reactor;
            (2) the proposed recipient of that uranium has 
        provided assurances that, whenever an alternative 
        nuclear reactor fuel or target can be used in that 
        reactor, it will use that alternative in lieu of highly 
        enriched uranium; and
            (3) the United States Government is actively 
        developing an alternative nuclear reactor fuel or 
        target that can be used in that reactor.
    c. Medical Isotope Production.--
            (1) Definitions.--In this subsection:
                    (A) Medical isotope.--The term `medical 
                isotope' includes Molybdenum 99, Iodine 131, 
                Xenon 133, and other radioactive materials used 
                to produce a radiopharmaceutical for 
                diagnostic, therapeutic procedures or for 
                research and development.
                    (B) Radiopharmaceutical.--The term 
                `radiopharmaceutical' means a radioactive 
                isotope that--
                            (i) contains byproduct material 
                        combined with chemical or biological 
                        material; and
                            (ii) is designed to accumulate 
                        temporarily in a part of the body for 
                        therapeutic purposes or for enabling 
                        the production of a useful image for 
                        use in a diagnosis of a medical 
                        condition.
                    (C) Recipient country.--The term `recipient 
                country' means Belgium, Canada, France, 
                Germany, and the Netherlands.
            (2) Licenses.--The Nuclear Regulatory Commission 
        may issue a license authorizing the export (including 
        shipment to and use at intermediate and ultimate 
        consignees specified in the license) to a recipient 
        country of highly enriched uranium for medical isotope 
        production if, in addition to any other requirements of 
        this Act (except subsection b.), the Nuclear Regulatory 
        Commission determines that--
                    (A) a recipient country that supplies an 
                assurance letter to the United States 
                Government in connection with the consideration 
                by the Nuclear Regulatory Commission of the 
                export license application has informed the 
                United States Government that any intermediate 
                consignees and the ultimate consignee specified 
                in the application are required to use the 
                highly enriched uranium solely to produce 
                medical isotopes; and
                    (B) the highly enriched uranium for medical 
                isotope production will be irradiated only in a 
                reactor in a recipient country that--
                            (i) uses an alternative nuclear 
                        reactor fuel; or
                            (ii) is the subject of an agreement 
                        with the United States Government to 
                        convert to an alternative nuclear 
                        reactor fuel when alternative nuclear 
                        reactor fuel can be used in the 
                        reactor.
            (3) Review of physical protection requirements.--
                    (A) In general.--The Nuclear Regulatory 
                Commission shall review the adequacy of 
                physical protection requirements that, as of 
                the date of an application under paragraph (2), 
                are applicable to the transportation and 
                storage of highly enriched uranium for medical 
                isotope production or control of residual 
                material after irradiation and extraction of 
                medical isotopes.
                    (B) Imposition of additional 
                requirements.--If the Nuclear Regulatory 
                Commission determines that additional physical 
                protection requirements are necessary 
                (including a limit on the quantity of highly 
                enriched uranium that may be contained in a 
                single shipment), the Nuclear Regulatory 
                Commission shall impose such requirements as 
                license conditions or through other appropriate 
                means.
            (4) First report to congress.--
                    (A) National academy of sciences study.--
                The Secretary shall enter into an arrangement 
                with the National Academy of Sciences to 
                conduct a study to determine--
                            (i) the feasibility of procuring 
                        supplies of medical isotopes from 
                        commercial sources that do not use 
                        highly enriched uranium;
                            (ii) the current and projected 
                        demand and availability of medical 
                        isotopes in regular current domestic 
                        use;
                            (iii) the progress that is being 
                        made by the Department of Energy and 
                        others to eliminate all use of highly 
                        enriched uranium in reactor fuel, 
                        reactor targets, and medical isotope 
                        production facilities; and
                            (iv) the potential cost 
                        differential in medical isotope 
                        production in the reactors and target 
                        processing facilities if the products 
                        were derived from production systems 
                        that do not involve fuels and targets 
                        with highly enriched uranium.
                    (B) Feasibility.--For the purpose of this 
                subsection, the use of low enriched uranium to 
                produce medical isotopes shall be determined to 
                be feasible if--
                            (i) low enriched uranium targets 
                        have been developed and demonstrated 
                        for use in the reactors and target 
                        processing facilities that produce 
                        significant quantities of medical 
                        isotopes to serve United States needs 
                        for such isotopes;
                            (ii) sufficient quantities of 
                        medical isotopes are available from low 
                        enriched uranium targets and fuel to 
                        meet United States domestic needs; and
                            (iii) the average anticipated total 
                        cost increase from production of 
                        medical isotopes in such facilities 
                        without use of highly enriched uranium 
                        is less than 10 percent.
                    (C) Report by the secretary.--Not later 
                than 5 years after the date of enactment of the 
                Nuclear Fees Reauthorization Act of 2005, the 
                Secretary shall submit to Congress a report 
                that--
                            (i) contains the findings of the 
                        National Academy of Sciences made in 
                        the study under subparagraph (A); and
                            (ii) discloses the existence of any 
                        commitments from commercial producers 
                        to provide domestic requirements for 
                        medical isotopes without use of highly 
                        enriched uranium consistent with the 
                        feasibility criteria described in 
                        subparagraph (B) not later than the 
                        date that is 4 years after the date of 
                        submission of the report.
            (5) Second report to congress.--If the study of the 
        National Academy of Sciences determines under paragraph 
        (4)(A)(i) that the procurement of supplies of medical 
        isotopes from commercial sources that do not use highly 
        enriched uranium is feasible, but the Secretary is 
        unable to report the existence of commitments under 
        paragraph (4)(C)(ii), not later than the date that is 6 
        years after the date of enactment of the Nuclear Fees 
        Reauthorization Act of 2005, the Secretary shall submit 
        to Congress a report that describes options for 
        developing domestic supplies of medical isotopes in 
        quantities that are adequate to meet domestic demand 
        without the use of highly enriched uranium consistent 
        with the cost increase described in paragraph 
        (4)(B)(iii).
            (6) Certification.--At such time as commercial 
        facilities that do not use highly enriched uranium are 
        capable of meeting domestic requirements for medical 
        isotopes, within the cost increase described in 
        paragraph (4)(B)(iii) and without impairing the 
        reliable supply of medical isotopes for domestic 
        utilization, the Secretary shall submit to Congress a 
        certification to that effect.
            (7) Sunset provision.--After the Secretary submits 
        a certification under paragraph (6), the Nuclear 
        Regulatory Commission shall, by rule, terminate the 
        review of the Nuclear Regulatory Commission of export 
        license applications under this subsection.

           *       *       *       *       *       *       *

    Sec. 161. General Provisions.--In the performance of its 
functions the Commission is authorized to--
            a. * * *

           *       *       *       *       *       *       *

            w. prescribe and collect from any other Government 
        agency, which applies [for or is issued a license for a 
        utilization facility designed to produce electrical or 
        heat energy pursuant to section 103 or 104 b., or which 
        operates any facility regulated or certified under 
        section 1701 or 1702] to the Nuclear Regulatory 
        Commission for, or is issued by the Nuclear Regulatory 
        Commission, a license or certificate, any fee, charge, 
        or price which it may require, in accordance with the 
        provisions of section [483a] 9701 of title 31 of the 
        United States Code or any other law[, of applicants 
        for, or holders of, such licenses or certificates].

           *       *       *       *       *       *       *

    Sec. 170A. Conflicts of Interest Relating to Contracts and 
Other Arrangements.--
    a. * * *

           *       *       *       *       *       *       *

    [b. The Commission]
    b. Evaluation.--
            (1) In general.--Except as provided in paragraph 
        (2), the Nuclear Regulatory Commission shall not enter 
        into any such contract agreement or arrangement unless 
        it finds, after evaluating all information provided 
        under subsection a. and any other information otherwise 
        available to the Commission that--
                    [(1)](A) it is unlikely that a conflict of 
                interest would exist, or
                    [(2)](B)such conflict has been avoided 
                after appropriate conditions have been included 
                in such contract, agreement, or arrangement; 
                except that if the Commission determines that 
                such conflict of interests exists and that such 
                conflict of interest cannot be avoided by 
                including appropriate conditions therein, the 
                Commission may enter into such contract, 
                agreement, or arrangement, if the Commission 
                determines that it is in the best interests of 
                the United States to do so and includes 
                appropriate conditions in such contract, 
                agreement, or arrangement to mitigate such 
                conflict.
            (2) Nuclear regulatory commission.--Notwithstanding 
        any conflict of interest, the Nuclear Regulatory 
        Commission may enter into a contract, agreement, or 
        arrangement with the Department of Energy or the 
        operator of a Department of Energy facility, if the 
        Nuclear Regulatory Commission determines that--
                    (A) the conflict of interest cannot be 
                mitigated; and
                    (B) adequate justification exists to 
                proceed without mitigation of the conflict of 
                interest.

           *       *       *       *       *       *       *


SEC. 170C. RECRUITMENT TOOLS.

    The Nuclear Regulatory Commission may purchase promotional 
items of nominal value for use in the recruitment of 
individuals for employment.

SEC. 170D. EXPENSES AUTHORIZED TO BE PAID BY THE NUCLEAR REGULATORY 
                    COMMISSION.

    The Nuclear Regulatory Commission may--
            (1) pay transportation, lodging, and subsistence 
        expenses of employees who--
                    (A) assist scientific, professional, 
                administrative, or technical employees of the 
                Nuclear Regulatory Commission; and
                    (B) are students in good standing at an 
                institution of higher education (as defined in 
                section 102 of the Higher Education Act of 1965 
                (20 U.S.C. 1002)) pursuing courses related to 
                the field in which the students are employed by 
                the Nuclear Regulatory Commission; and
            (2) pay the costs of health and medical services 
        furnished, pursuant to an agreement between the Nuclear 
        Regulatory Commission and the Department of State, to 
        employees of the Nuclear Regulatory Commission and 
        dependents of the employees serving in foreign 
        countries.

SEC. 170E. ELIMINATION OF PENSION OFFSET FOR CERTAIN REHIRED FEDERAL 
                    RETIREES.

    a. In General.--The Nuclear Regulatory Commission may waive 
the application of section 8344 or 8468 of title 5, United 
States Code, on a case-by-case basis for employment of an 
annuitant--
            (1) in a position of the Nuclear Regulatory 
        Commission for which there is exceptional difficulty in 
        recruiting or retaining a qualified employee; or
            (2) when a temporary emergency hiring need exists.
    b. Procedures.--The Nuclear Regulatory Commission shall 
prescribe procedures for the exercise of authority under this 
section, including--
            (1) criteria for any exercise of authority; and
            (2) procedures for a delegation of authority.
    c. Effect of Waiver.--An employee as to whom a waiver under 
this section is in effect shall not be considered an employee 
for purposes of subchapter II of chapter 83, or chapter 84, of 
title 5, United States Code.

           *       *       *       *       *       *       *

    Sec. 242. Cold Standby.
    The Secretary is authorized to expend such funds as may be 
necessary for the purposes of maintaining enrichment capability 
at the Portsmouth, Ohio, facility.

SEC. 243. SCHOLARSHIP AND FELLOWSHIP PROGRAM.

    a. Scholarship Program.--To enable students to study, for 
at least 1 academic semester or equivalent term, science, 
engineering, or another field of study that the Nuclear 
Regulatory Commission determines is in a critical skill area 
related to the regulatory mission of the Nuclear Regulatory 
Commission, the Nuclear Regulatory Commission may carry out a 
program to--
            (1) award scholarships to undergraduate students 
        who--
                    (A) are United States citizens; and
                    (B) enter into an agreement under 
                subsection c. to be employed by the Nuclear 
                Regulatory Commission in the area of study for 
                which the scholarship is awarded.
    b. Fellowship Program.--To enable students to pursue 
education in science, engineering, or another field of study 
that the Nuclear Regulatory Commission determines is in a 
critical skill area related to its regulatory mission, in a 
graduate or professional degree program offered by an 
institution of higher education in the United States, the 
Nuclear Regulatory Commission may carry out a program to--
            (1) award fellowships to graduate students who--
                    (A) are United States citizens; and
                    (B) enter into an agreement under 
                subsection c. to be employed by the Nuclear 
                Regulatory Commission in the area of study for 
                which the fellowship is awarded.
    c. Requirements.--
            (1) In general.--As a condition of receiving a 
        scholarship or fellowship under subsection a. or b., a 
        recipient of the scholarship or fellowship shall enter 
        into an agreement with the Nuclear Regulatory 
        Commission under which, in return for the assistance, 
        the recipient shall--
                    (A) maintain satisfactory academic progress 
                in the studies of the recipient, as determined 
                by criteria established by the Nuclear 
                Regulatory Commission;
                    (B) agree that failure to maintain 
                satisfactory academic progress shall constitute 
                grounds on which the Nuclear Regulatory 
                Commission may terminate the assistance;
                    (C) on completion of the academic course of 
                study in connection with which the assistance 
                was provided, and in accordance with criteria 
                established by the Nuclear Regulatory 
                Commission, engage in employment by the Nuclear 
                Regulatory Commission for a period specified by 
                the Nuclear Regulatory Commission, that shall 
                be not less than 1 time and not more than 3 
                times the period for which the assistance was 
                provided; and
                    (D) if the recipient fails to meet the 
                requirements of subparagraph (A), (B), or (C), 
                reimburse the United States Government for--
                            (i) the entire amount of the 
                        assistance provided the recipient under 
                        the scholarship or fellowship; and
                            (ii) interest at a rate determined 
                        by the Nuclear Regulatory Commission.
            (2) Waiver or suspension.--The Nuclear Regulatory 
        Commission may establish criteria for the partial or 
        total waiver or suspension of any obligation of service 
        or payment incurred by a recipient of a scholarship or 
        fellowship under this section.
    d. Competitive Process.--Recipients of scholarships or 
fellowships under this section shall be selected through a 
competitive process primarily on the basis of academic merit 
and such other criteria as the Nuclear Regulatory Commission 
may establish, with consideration given to financial need and 
the goal of promoting the participation of individuals 
identified in section 33 or 34 of the Science and Engineering 
Equal Opportunities Act (42 U.S.C. 1885a, 1885b).
    e. Direct Appointment.--The Nuclear Regulatory Commission 
may appoint directly, with no further competition, public 
notice, or consideration of any other potential candidate, an 
individual who has--
            (1) received a scholarship or fellowship awarded by 
        the Nuclear Regulatory Commission under this section; 
        and
            (2) completed the academic program for which the 
        scholarship or fellowship was awarded.

SEC. 244. PARTNERSHIP PROGRAM WITH INSTITUTIONS OF HIGHER EDUCATION.

    a. Definitions.--In this section:
            (1) Hispanic-serving institution.--The term 
        `Hispanic-serving institution' has the meaning given 
        the term in section 502(a) of the Higher Education Act 
        of 1965 (20 U.S.C. 1101a(a)).
            (2) Historically black college and university.--The 
        term `historically Black college or university' has the 
        meaning given the term `part B institution' in section 
        322 of the Higher Education Act of 1965 (20 U.S.C. 
        1061).
            (3) Tribal college.--The term `Tribal college' has 
        the meaning given the term `tribally controlled college 
        or university' in section 2(a) of the Tribally 
        Controlled College or University Assistance Act of 1978 
        (25 U.S.C. 1801(a)).
    b. Partnership Program.--The Nuclear Regulatory Commission 
may establish and participate in activities relating to 
research, mentoring, instruction, and training with 
institutions of higher education, including Hispanic-serving 
institutions, historically Black colleges or universities, and 
Tribal colleges, to strengthen the capacity of the 
institutions--
            (1) to educate and train students (including 
        present or potential employees of the Nuclear 
        Regulatory Commission); and
            (2) to conduct research in the field of science, 
        engineering, or law, or any other field that the 
        Nuclear Regulatory Commission determines is important 
        to the work of the Nuclear Regulatory Commission.

           *       *       *       *       *       *       *

                              ----------                              


                            [42 U.S.C. 2214]

               OMNIBUS BUDGET RECONCILIATION ACT OF 1990

    Sec. 2214. NRC User Fees and Annual Charges.
    (a) Annual assessment.--
            (1) In general.--Except as provided in paragraph 
        (3), the Nuclear Regulatory Commission (in this section 
        referred to as the ``Commission'') shall annually 
        assess and collect such fees and charges as are 
        described in subsections (b) and (c) of this section.
            (2) First assessment.--The first assessment of fees 
        under subsection (b) of this section and annual charges 
        under subsection (c) of this section shall be made not 
        later than September 30, 1991.
            (3) Last assessment of annual charges.--The last 
        assessment of annual charges under subsection (c) of 
        this section shall be made not later than September 20, 
        [2005] 2011.
    (b) Fees for service or thing of value.--Pursuant to 
section 9701 of title 31, any person who receives a service or 
thing of value from the Commission shall pay fees to cover the 
Commission's costs in providing any such service or thing of 
value.
    (c) Annual charges.--
            (1) Persons subject to charge.--Except as provided 
        in paragraph (4), any licensee or certificate holder of 
        the Commission may be required to pay, in addition to 
        the Fees set forth in subsection (b) of this section, 
        an annual charge.
            (2) Aggregate amount of charges.--
                    (A) In general.--The aggregate amount of 
                the annual charges collected from all licensees 
                and certificate holders in a fiscal year shall 
                equal an amount that approximates the 
                percentages of the budget authority of the 
                Commission for the fiscal year stated in 
                subparagraph (B), less--
                            (i) amounts collected under 
                        subsection (b) of this section during 
                        the fiscal year; [and]
                            (ii) amounts appropriated to the 
                        Commission from the Nuclear Waste Fund 
                        for the fiscal year[.] ;
                            (iii) amounts appropriated to the 
                        Nuclear Regulatory Commission for the 
                        fiscal year for implementation of 
                        section 3116 of the Ronald W. Reagan 
                        National Defense Authorization Act for 
                        Fiscal Year 2005 (118 Stat. 2162; 50 
                        U.S.C. 2601 note); and
                            (iv) amounts appropriated to the 
                        Nuclear Regulatory Commission for 
                        homeland security activities of the 
                        Nuclear Regulatory Commission for the 
                        fiscal year, except for the costs of 
                        fingerprinting and background checks 
                        required by section 149 of the Atomic 
                        Energy Act of 1954 (42 U.S.C. 2169) and 
                        the costs of conducting security 
                        inspections.
                    (B) Percentages.--The percentages referred 
                to in subparagraph (A) are--
                            (i) 98 percent for fiscal year 
                        2001;
                            (ii) 96 percent for fiscal year 
                        2002;
                            (iii) 94 percent for fiscal year 
                        2003;
                            (iv) 92 percent for fiscal year 
                        2004; and
                            (v) 90 percent for [fiscal year 
                        2005] each of fiscal years 2005 through 
                        2011.
            (3) Amount per licensee.--The Commission shall 
        establish, by rule, a schedule of charges fairly and 
        equitably allocating the aggregate amount of charges 
        described in paragraph (2) among licensees. To the 
        maximum extent practicable, the charges shall have a 
        reasonable relationship to the cost of providing 
        regulatory services and may be based on the allocation 
        of the Commission's resources among licensees or 
        classes of licensees.
            (4) Exemption.--
                    (A) In general.--Paragraph (1) shall not 
                apply to the holder of any license for a 
                federally owned research reactor used primarily 
                for educational training and academic research 
                purposes.
                    (B) Research reactor.--For purposes of 
                subparagraph (A), the term ``research reactor'' 
                means a nuclear reactor that--
                            (i) is licensed by the Nuclear 
                        Regulatory Commission under section 
                        2134(c) of this title for operation at 
                        a thermal power level of 10 megawatts 
                        or less; and
                            (ii) if so licensed for operation 
                        at a thermal power level of more than 1 
                        megawatt, does not contain--
                                    (I) a circulating loop 
                                through the core in which the 
                                licensee conducts fuel 
                                experiments;
                                    (II) a liquid fuel loading; 
                                or
                                    (III) an experimental 
                                facility in the core in excess 
                                of 16 square inches in cross-
                                section.
    (d) ``Nuclear Waste Fund'' defined.--As used in this 
section, the term ``Nuclear Waste Fund'' means the fund 
established pursuant to section 10222(c) of this title.

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