[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:
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[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.
* * * * * * *
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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.
* * * * * * *