[Federal Register Volume 59, Number 156 (Monday, August 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19922]


[[Page Unknown]]

[Federal Register: August 15, 1994]


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Part IX





Department of Energy





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10 CFR Part 766




Uranium Enrichment Decontamination and Decommissioning Fund; Procedures 
for Special Assessment of Domestic Utilities; Final Rule
DEPARTMENT OF ENERGY

10 CFR Part 766

RIN 1901-AA52

 
Uranium Enrichment Decontamination and Decommissioning Fund; 
Procedures for Special Assessment of Domestic Utilities

AGENCY: Office of Environmental Management, Department of Energy.

ACTION: Final rule.

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SUMMARY: This final rule revises the procedures and methods that the 
Department of Energy (DOE or the Department), Office of Environmental 
Management, will use to invoice and collect a Special Assessment from 
domestic utilities. The assessments will be deposited into the Uranium 
Enrichment Decontamination and Decommissioning Fund (Fund), established 
under Chapter 28 of the Atomic Energy Act of 1954 (Act), as amended by 
Title XI of the Energy Policy Act of 1992 (EPACT). The Fund will be 
used to pay for the costs of decontamination and decommissioning (D&D) 
and remedial action activities at DOE's uranium enrichment facilities, 
and for reimbursement of certain costs of D&D, reclamation, and other 
remedial actions incurred by licensees at active uranium or thorium 
processing sites, as specified in Title X of the EPACT.

EFFECTIVE DATE: September 14, 1994.

FOR FURTHER INFORMATION CONTACT: Ross Bradley, U.S. Department of 
Energy, Uranium Enrichment Decontamination and Decommissioning Fund 
Manager, Mail Stop EM-42, 1000 Independence Ave., SW, Washington, DC, 
20585, (301) 903-7646; or Edward Le Duc, U.S. Department of Energy, 
Office of General Counsel, Mail Stop GC-51, 1000 Independence Ave., 
SW., Washington, DC, 20585, (202) 586-6947.

SUPPLEMENTARY INFORMATION:

I. Background
II. The Interim Final Rule and the Proposed Rule
III. Response to Public Comment
    A. Detailed Listing of Activities to be Paid from the Fund
    B. Definition of Commercial Electricity Generation
    C. Treatment of SWUs in Leased Material in Calculating the 
Special Assessment
    D. Calculation of Future Assessments
    E. Treatment of DOE Produced SWUs Re-Entering the U.S. Domestic 
Market in Calculation of the Special Assessment
    F. Treatment of Fabrication Losses in Calculation of the Special 
Assessment
    G. Treatment of SWUs Sold to Domestic Utilities That Shut Down 
Their Nuclear Power Plants Prior to Enactment of the EPACT
    H. Treatment of SWUs Sold to Another Domestic Utility at a 
Different Tails Assay in Calculation of the Special Assessment
    I. Treatment of SWUs Traded or Loaned in Calculation of the 
Special Assessment
    J. Invoicing of the Special Assessment in Proportion to U.S. 
Congressional Appropriations to the Fund
    K. Payment Schedule for Future Assessments
    L. Fixed Annual Date for Invoicing
    M. Payment of the Special Assessment for Utilities Transferring 
All of Their SWUs to Another Domestic Utility
    N. Submittal of Special Assessment Payment after Approval from 
Public Utility Commissions
    O. Establishment of a D&D Trust Fund Managed by the Domestic 
Utilities
    P. Payment of Interest on Credits to future Special Assessments
    Q. Method of Payment
    R. Reconciliation Adjustments and Appeals
    S. Prepayment of Special Assessments
    T. Miscellaneous Comments
    U. Review Under Executive Order 12866
    V. Review Under the Paperwork Reduction Act
IV. Section-By-Section Analysis
    A. Subpart A--General
    1. Secs. 766.1 and 766.2  Purpose and Applicability
    2. Sec. 766.3  Definitions
    B. Subpart B--Uranium Enrichment Decontamination and 
Decommissioning Fund; Procedures for Special Assessment of Domestic 
Utilities
    1. Sec. 766.101  Data Utilization
    2. Sec. 766.102  Calculation Methodology
    3. Sec. 766.103  Special Assessment Invoices
    4. Sec. 766.104  Reconciliation Adjustments and Appeals
    5. Sec. 766.105  Payment Procedures
    6. Sec. 766.106  Late Payment Fees
    7. Sec. 766.107  Prepayment of Special Assessments.
V. Review Under Executive Order 12866
VI. Review Under the Regulatory Flexibility Act
VII. Review Under the Paperwork Reduction Act
VIII. Review Under the National Environmental Policy Act
IX. Review Under Executive Order 12612
X. Review Under Executive Order 12778

I. Background

    Sections 1801, 1802 and 1803 were added to the Act by Title XI of 
the EPACT (Pub. L. 102-486). Section 1801 establishes the Fund in the 
Treasury of the United States (42 U.S.C. Sec. 2297g). Amounts on 
deposit in the Fund are available to the Secretary of Energy, subject 
to appropriations, for D&D and remedial action activities at DOE's 
uranium enrichment facilities and for reimbursement of uranium and 
thorium licensees for certain costs of D&D, reclamation, and other 
remedial actions incurred by licensees at active uranium or thorium 
processing sites, as specified in Title X of the EPACT (42 U.S.C. 
Sec. 2296a et seq.). The Act provides that amounts in the Fund be 
invested by the Secretary of the Treasury in obligations of the United 
States. The Act also requires the Secretary of the Treasury, after 
consultation with the Secretary of Energy, to report to Congress 
annually on the financial condition and operations of the Fund.
    Section 1802 of the Act provides that the Fund shall consist of 
annual deposits of $480 million per fiscal year, to be annually 
adjusted for inflation using the Department of Labor's Consumer Price 
Index for all-urban consumers (CPI-U)(42 U.S.C. Sec. 2297g-1(a)). 
Deposits to the Fund are required to include a Special Assessment on 
domestic utilities not to exceed $150 million per fiscal year (adjusted 
for inflation using the CPI-U). Section 1802 also authorizes 
appropriations to be deposited into the Fund in the amount necessary to 
ensure that the total annual amount of $480 million (adjusted for 
inflation using the CPI-U) is deposited (42 U.S.C. Sec. 2297g-1(b)). 
The amount collected from each domestic utility for the Special 
Assessment shall be in the same ratio to the total amount to be 
deposited in the Fund, for each fiscal year, as the total amount of 
separative work units (SWUs) the utility has purchased from DOE for the 
purpose of commercial electricity generation, prior to the date of 
enactment of the EPACT (October 24, 1992), bears to the total amount of 
SWUs purchased from DOE for all purposes, including units purchased or 
produced for defense purposes, prior to October 24, 1992 (42 U.S.C. 
Sec. 2297g-1(c)).
    Collection of the Special Assessment is authorized as of the date 
of enactment of the EPACT (October 24, 1992), and shall continue for a 
period of the earlier of 15 years or until $2.25 billion (adjusted for 
inflation using the CPI-U) has been collected (42 U.S.C. Sec. 2297g-
1(e)). A Special Assessment levied on domestic utilities is deemed by 
the Act to be a necessary and reasonable current cost of fuel, fully 
recoverable in a utility's rates in the same manner as other fuel costs 
(42 U.S.C. Sec. 2297 g-1(g)).
    Section 1803 provides that the National Academy of Sciences shall 
conduct a study and provide recommendations for reducing the costs 
associated with D&D of the Department's uranium enrichment facilities, 
and report its finding to Congress within 3 years after the date of the 
enactment of EPACT (42 U.S.C. Sec. 2297g-2(a)). This section specifies 
that the costs of D&D activities are to be paid from the Fund until 
such time as the Secretary of Energy certifies, and the Congress 
concurs, that the activities are complete (42 U.S.C. Sec. 2297g-2(b)). 
This section also specifies that the annual costs of remedial action at 
DOE's uranium enrichment facilities shall be paid from the Fund to the 
extent the amount available in the Fund is sufficient (42 U.S.C. 
Sec. 2297g-2(c)).

II. The Interim Final Rule and the Proposed Rule

    On August 2, 1993, DOE published an interim final rule (58 FR 
41160) and a proposed rule (58 FR 41164) which set forth the procedures 
for calculation and collection of the Special Assessment from domestic 
utilities for deposit into the Fund.
    The interim final rule became effective on September 1, 1993. This 
rule revises part 766 by including amendments from the proposed rule 
and adding a new section on prepayments.
    The interim final rule set forth those procedures, which the EPACT 
does not leave to DOE discretion, for calculation of the Special 
Assessment from domestic utilities for deposit into the Fund. DOE 
issued the rule as an interim final rule to allow for public comment 
while facilitating timely administrative action to comply with the 
obligation to collect the Fiscal Year 1993 Special Assessment from 
utilities by no later than September 30, 1993. The proposed rule 
expanded the interim final rule by adding new sections that address 
substantive matters left by the EPACT to DOE discretion, such as the 
required method of payment, late payment fees, and administrative 
appeals.
    On August 30, 1993, a public hearing was conducted by DOE on the 
proposed rule. No attendees asked to make oral presentations. A 
transcript of this hearing is available in the Freedom of Information 
Public Reading Room, 1000 Independence Avenue, Washington, DC 20885.
    During the public comment period, written comments on the interim 
final rule were received from a total of nine organizations 
representing domestic utilities, electric power industry groups, and 
Congress. Written comments were received on the proposed rule from 
seven organizations with the same affiliations.
    DOE has considered and evaluated the comments received during the 
public comment period. In addition, DOE has addressed comments from two 
utilities it received outside the public comment period. The following 
discussion describes the comments received, provides DOE's response to 
the comments, and describes any changes incorporated into the rule.

III. Response to Public Comment

A. Detailed Listing of Activities To Be Paid From the Fund

    Several commenters requested that DOE provide a detailed listing of 
the activities at the gaseous diffusion plants that are to be paid from 
the Fund. Activities that are to be paid from the Fund are those that 
are authorized by the EPACT and subsequently approved by Congress in 
appropriation bills. A listing of these activities and other pertinent 
information is annually released to the public by the DOE in the Office 
of Environmental Management's annual budget documentation. Because this 
information is prepared and modified annually, and is made available to 
the public, the final rule does not include a detailed listing of all 
activities that are to be paid from the Fund. However, the following 
are examples of the types of activities at the gaseous diffusion plants 
that DOE believes would appropriately be paid for from the Fund: 
demolition of buildings, Resource Conservation and Recovery Act 
closures and surveillance and maintenance activities.

B. Definition of Commercial Electricity Generation

    Several commenters requested that DOE provide a definition of 
``commercial electricity generation.'' This term was not defined in the 
EPACT. Given that the amount collected from a utility is based upon its 
purchases of SWUs for the purpose of commercial electricity generation, 
DOE has added a definition to the final rule.
    Commercial electricity generation means the production of 
electricity for sale to consumers. Power produced under the power 
demonstration program operated by the Atomic Energy Commission (AEC) 
falls within the definition of commercial electricity generation. 
However, SWU deliveries to reactors wholly owned by the AEC under the 
power demonstration program, even though they fall within the 
definition of commercial electricity generation, are considered 
deliveries of SWUs to the government and not to domestic utilities, 
since domestic utilities did not purchase these SWUs from DOE or its 
predecessor agency the AEC. Therefore, they will not be included in the 
calculation for domestic utilities, but will be included in the 
calculation for total SWUs produced.

C. Treatment of SWUs in Leased Material in Calculating the Special 
Assessment

    One commenter requested clarification concerning the treatment of 
SWUs in leased material in the calculation of the Special Assessment. 
The commenter suggested that the use of leased SWU material in 
calculating the Special Assessment would overstate its Special 
Assessment and would be inappropriate because unused portions of leased 
material were returned to the Government.
    Leased material is appropriately included as part of the Special 
Assessment to the extent that the material was for the purpose of 
commercial electricity generation. Utilities paid ``use and burnup 
charges'' for the portion of leased material that they consumed. These 
charges were based on the number of SWUs consumed. Therefore, leased 
material is being treated as purchased material and is subject to the 
Special Assessment. A utility's Special Assessment will be adjusted for 
those portions of SWUs in leased material that it did not consume and 
that were returned to the Government. In addition, DOE has added a 
definition of ``use and burnup charges'' to the final rule.
    Domestic utilities converted lease contracts to ``in-situ'' 
ownership contracts when the Atomic Energy Act was amended to allow 
private ownership of special nuclear materials. The original Special 
Assessment invoices included SWUs delivered under lease contracts and 
under ``in-situ'' contracts. Several commenters noted that the SWUs in 
these assessments were double counted as a result of SWUs being counted 
as lease deliveries and in-situ deliveries. DOE agrees with these 
comments. The Fiscal Year 1994 Special Assessment invoices will be 
adjusted to correct for this double counting.

D. Calculation of Future Assessments

    Several commenters observed that the EPACT states that the Special 
Assessment should be ``annually adjusted for inflation'' and that the 
final rule should reflect this requirement and indicate when the 
inflation adjustments will commence. The final rule specifies that the 
annual Special Assessment shall be adjusted for inflation each fiscal 
year following the first Special Assessment using the most recently 
published monthly Consumer Price Index for all urban consumers (CPI-U) 
published by the Department of Labor and the CPI-U for October, 1992. 
(See section 766.102(d)). DOE believes that this provision, which 
establishes an adjustment for inflation on each annual assessment 
following the first Special Assessment, appropriately implements the 
inflation adjustment requirement of EPACT. DOE waived the inflation 
adjustment to the first Special Assessment because domestic utilities 
had no control over the date of the issuance of the interim final rule, 
which established the date of the first Special Assessment.

E. Treatment of DOE Produced SWUs Re-Entering the U.S. Domestic Market 
in Calculation of the Special Assessment

    One commenter requested clarification as to how DOE plans to treat 
any DOE produced SWUs that were sold to foreign utilities and that re-
enter the domestic market. This commenter questioned how this would 
affect the reconciliation of SWU records for recalculating the Special 
Assessment.
    During the reconciliation process, DOE will identify these SWUs 
from information provided by utilities and from other sources to which 
DOE has access, such as the Nuclear Materials Management and Safeguards 
System (NMMSS), a joint DOE-Nuclear Regulatory Commission (NRC) 
database. DOE-produced SWUs that were sold to foreign utilities and 
later re-entered the domestic commercial market would have the effect 
of increasing the number of DOE-produced SWUs purchased by domestic 
utilities for the purpose of commercial electricity generation in 
relation to the total number of DOE-produced SWUs purchased from DOE 
for all purposes, as stated in the EPACT. The Special Assessment 
invoices will contain information on the total number of DOE-produced 
SWUs purchased by domestic utilities, including those purchased from 
foreign utilities. When the reconciliation process is complete, DOE 
will provide utilities with a summary of all adjustments made during 
the process.

F. Treatment of Fabrication Losses in Calculation of the Special 
Assessment

    Several commenters requested clarification as to how DOE will treat 
fabrication losses in calculating the Special Assessment. The 
commenters stated that fuel fabrication losses were not used in 
commercial electricity generation and therefore should not be included 
in the calculation of the Special Assessments.
    In determining a utility's Special Assessment, the EPACT does not 
require a SWU to have actually been used in commercial electricity 
generation, but only to have been purchased for that purpose. 
Therefore, DOE will not adjust Special Assessments to exclude 
fabrication losses.

G. Treatment of SWUs Sold to Domestic Utilities That Shut Down Their 
Nuclear Power Plants Prior to Enactment of the EPACT

    Several commenters questioned the applicability of the Special 
Assessment to reactors that have ceased operations or are scheduled for 
shut down during the 15-year assessment period. The commenters asserted 
that the intent of EPACT is to levy Special Assessments only upon 
operating domestic utilities. Relying on EPACT's statement that a 
utility may recover the cost of its Special Assessment as a ``current 
cost of fuel * * * recoverable * * * in the same manner as the 
utility's other fuel cost,'' 42 U.S.C. Sec. 2297g-1(g), one commenter 
argued that Congress intended to exempt non-operating facilities. This 
language, according to the commenter, suggests a Congressional intent 
to subject a utility to the Special Assessment only if it has at least 
one operating facility, by which it incurs ``other fuel cost.''
    DOE believes that the EPACT is unambiguous in regard to the 
statutory applicability of the Special Assessment to domestic 
utilities. The statutory provision governing application of the Special 
Assessment is 42 U.S.C. Sec. 2297g-1(c). This section states that: 
``The Secretary shall collect a special assessment from domestic 
utilities,'' and that the amount collected from each utility shall be 
proportional to the ``total amount of separative work units such 
utility has purchased from the Department of Energy for the purpose of 
commercial electricity generation, before October 24, 1992.'' If prior 
to October 24, 1992, a utility purchased SWUs from DOE for the purpose 
of commercial electricity generation, EPACT's plain terms subject such 
a utility to the Special Assessment. EPACT provides no exceptions for 
utilities that satisfy this condition of applicability.
    One commenter points to a separate provision on rate recoverability 
as the basis for implying an exemption from the Special Assessment. DOE 
does not believe that the provision in EPACT authorizing a utility's 
rate recovery of its Special Assessments, 42 U.S.C. Sec. 2297g-1(g), 
was intended by Congress to be a limitation on the statutory 
applicability of the Special Assessments. The terms of this provision, 
entitled ``Treatment of Assessment,'' do not purport to create an 
exemption or to address the scope of applicability of the Special 
Assessment. The terms and separate placement of the rate recovery 
provision reflect its separate purpose, namely, to allow utilities to 
pass through the costs of their Special Assessments.
    We note that the statutory structure contemplates that current 
ratepayers will bear costs related to fuels that benefitted ratepayers 
years earlier. Congress apparently recognized this as a potential 
ratemaking issue, and thus directed that the present ratepayers of the 
utilities that benefitted from the fuel use would pay the Special 
Assessments.
    Accordingly, because the EPACT contains no exemption from the 
Special Assessment for non-operating reactors, DOE has not exempted 
non-operating reactors in this final rule.

H. Treatment of SWUs Sold to Another Domestic Utility at a Different 
Tails Assay in Calculation of the Special Assessment

    One commenter requested that DOE address how it would treat 
enrichment services that were purchased from DOE and subsequently sold 
to another utility at a different transaction tails assay that resulted 
in a net difference in SWUs.
    If a utility purchased DOE-produced SWUs from another utility, the 
purchasing utility's assessment will be based on the SWUs specified in 
contracts or other probative documents generated at the time of the 
secondary market purchase. The selling utility's assessment will be 
reduced by an amount that will be determined by the SWUs sold to the 
purchasing utility. For instance, in the event that the SWUs purchased 
in the secondary market transactions were less than the SWUs originally 
purchased from DOE, the selling utility will be assessed for the 
difference. If a transaction resulted in a net increase in SWUs, the 
purchasing utility will be assessed only for the amount of SWUs 
originally purchased from DOE; the selling utility's assessment will be 
reduced by the same amount. In general, where a secondary market sale 
resulted in a net difference in SWUs, there will be no increase or 
decrease, for Special Assessment purposes, in the total number of SWUs 
purchased from DOE. The Department bases this principle on its 
interpretation of EPACT, which requires Special Assessments to be 
determined on the basis of the total SWUs purchased from DOE by 
domestic utilities for the purpose of commercial electricity 
generation. To implement this requirement, DOE believes that secondary 
market transactions cannot be allowed to effect a net increase or 
decrease, for Special Assessment purposes, in the total number of SWUs 
that were purchased from DOE for all purposes. The following examples 
illustrate this principle:

1. Utility A purchases 100 SWUs from DOE. Utility A's assessment would 
be based upon 100 SWUs.
2. Utility A purchases 100 SWUs from DOE. Utility A sells this material 
to Utility B in a transaction based on the same calculated number of 
SWUs. Utility B's assessment would be based upon 100 SWUs. Utility A's 
assessment would be based upon 0 SWUs.
3. Utility A purchases 100 SWUs from DOE. In a subsequent sale, Utility 
A changes the calculated SWUs and sells the 100 SWUs to Utility B in a 
transaction for only 80 SWUs. Utility B's assessment is based upon 80 
SWUs. Utility A's assessment is based upon the remaining 20 SWUs 
unaccounted for in the secondary market transaction.
4. Utility A purchases 100 SWUs from DOE. In a subsequent sale, Utility 
A changes the calculated SWUs and sells the 100 SWUs to Utility B in a 
transaction for 120 SWUs. Utility B's assessment is based upon 100 
SWUs, and Utility A's assessment is based upon 0 SWUs.

    Requests for assessment adjustments reflecting secondary market SWU 
transactions may be made pursuant to the requirements of section 
766.104. The liability for payment of the Special Assessment rests with 
the utility that originally purchased the SWUs from DOE, until such 
time that DOE makes a written determination granting or denying a 
requested adjustment pursuant to section 766.104(c). Such a 
determination must be based upon reliable and adequately probative 
information documenting the sale of the SWUs in question. DOE will use 
this information to reconcile its records of SWU purchases with both 
sellers and purchasers.

I. Treatment of SWUs Traded or Loaned in Calculation of the Special 
Assessment

    One commenter requested that definitions for the terms 
``purchased'' and ``sold'' be incorporated into the final rule, and 
that these terms be clearly defined to include enriched uranium trades 
and loans as purchases and sales.
    DOE has not included a definition of purchased and sold in the 
final rule because EPACT sufficiently describes these terms. The EPACT 
specifies that a utility is considered to have purchased a separative 
work unit from DOE if such separative work unit was produced by DOE, 
but purchased from another source; and a utility shall not be 
considered to have purchased a separative work unit from DOE if such 
separative work unit was purchased by the utility, but sold to another 
source.
    On a case by case basis, uranium enrichment trades and loans of 
SWUs will be considered for treatment as purchases for assessment 
purposes when probative and reliable documentation is provided under 
the reconciliation provisions set forth at section 766.104, and DOE 
determines that a particular trade or loan transaction constitutes a 
purchase pursuant to the requirements of the EPACT.

J. Invoicing of the Special Assessment in Proportion to U.S. 
Congressional Appropriations to the Fund

    The EPACT specifies that the annual Special Assessment of domestic 
utilities ``shall not exceed'' $150 million of the total $480 million 
in annual deposits to the Fund. One commenter stated that the ratio 
(.4545) of the maximum amount of Special Assessments ($150 million) to 
the total amount of government deposits ($330 million) represents the 
maximum percentage of total deposits the utilities can be assessed in a 
given fiscal year. This percentage should be applied against the 
Federal Government contributions to the Fund to determine the ceiling 
for each annual Special Assessment of domestic utilities. For example, 
if the Federal Government contributes $100 million in a given fiscal 
year, the utility contribution should be $45.45 million ($100 million x 
.4545). The commenter contended that use of this capping method would 
make the domestic utility contributions to the Fund proportional to 
those made by the Federal Government and would eliminate the 
possibility of utility over-subscription to the Fund.
    EPACT authorizes the Department to collect a Special Assessment 
from domestic utilities up to $150 million per fiscal year without any 
requirement for proportionality between the Federal Government and 
utility contributions that are actually made to the Fund. Therefore, 
DOE will not impose an annually adjusted ceiling on the Fund or a 
requirement for actual proportionality between the two Fund sources.

K. Payment Schedule for Future Assessments

    Several commenters expressed concern over the condensed payment 
schedule for payment of the Special Assessment in Fiscal Years 1993, 
1994, and 1995. These commenters contended that this payment schedule 
presents an unfair burden on domestic utilities, and may make it 
difficult for utilities to obtain full rate recovery of the Special 
Assessment.
    DOE accommodated this concern in the proposed rule in stating that 
``Fiscal Year 1994 invoicing will be postponed two quarters to 
accommodate the reconciliation of records.'' This delay also allows for 
more time between the Fiscal Year 1993 and Fiscal Year 1994 Special 
Assessments. In addition, the EPACT affords utilities full rate 
recovery protection without regard to the timing of payments (42 U.S.C. 
Sec. 2297g-1(g)).

L. Fixed Annual Date for Invoicing

    Several commenters expressed the need for a fixed date for 
invoicing of the Special Assessment to allow domestic utilities to plan 
for payment of the Special Assessment. DOE has modified the final rule 
to accommodate this concern. The final rule provides for annual 
invoicing of the Special Assessment on or about October 1 of each 
fiscal year with payment due 30 calendar days from the date of invoice, 
beginning with the Fiscal Year 1995 Special Assessment.

M. Payment of the Special Assessment for Utilities Transferring All of 
Their SWUs to Another Domestic Utility

    One commenter recommended an exemption from payment of the Special 
Assessment for utilities that transferred, or plan to transfer, their 
entire portfolio of SWUs to other domestic utilities.
    EPACT requires the Special Assessment to be calculated on the basis 
of SWUs purchased from DOE prior to the date of enactment of the 
legislation. Therefore, domestic utilities shall be liable for the 
Special Assessment based upon SWUs purchased prior to the date of 
enactment without regard to potential or actual transfers of SWU 
portfolios, except that transfers that were a result of sales made 
prior to the date of enactment will be treated as adjustments to a 
utility's assessment during reconciliation, in accordance with the 
requirements set forth in section 766.104. See Section R.

N. Submittal of Special Assessment Payment After Approval From Public 
Utility Commissions

    One commenter requested that utilities be allowed to submit their 
payments of the Special Assessment after regulatory approval is 
obtained from their public utility commission for rate recovery of 
these costs. There is no basis for such a contingency in the EPACT. The 
EPACT requires DOE to assess and collect an annual Special Assessment 
and provides for separate utility rate recovery of the assessments as a 
current cost of fuel. Making payment contingent upon a public utility 
commission's approval of Special Assessment costs could lead to undue 
delay in the collection of the Special Assessments and lost interest 
income for the Department. This delay could also cause DOE to risk 
violating EPACT by collecting more in a given fiscal year than the $150 
million that is authorized, since DOE would lose control over the 
timing of collections. Therefore, DOE will not permit a delay in 
payment pending public utility commission cost recovery authorization.

O. Establishment of a D&D Trust Fund Managed by the Domestic Utilities

    Several commenters requested that the annual Special Assessments, 
once collected, be placed into a Trust Fund to be managed by the 
domestic utilities. These commenters stated that such an arrangement 
would demonstrate prudence to rate regulators, and enable utilities to 
provide greater cost-control assurance to their customers.
    The EPACT requires that the Fund be established in the Treasury of 
the United States, and that amounts contained in the Fund be invested 
by the Secretary of the Treasury in obligations of the United States. 
(42 U.S.C. Sec. 2297g). Since the EPACT does not leave management of 
the Fund to DOE discretion, the Department cannot establish a utility 
managed trust fund.

P. Payment of Interest on Credits to Future Special Assessments

    Several commenters expressed concern about the inability of 
domestic utilities to recover interest on any credits to future Special 
Assessments as a result of changes to utility Special Assessments from 
the reconciliation process. In the absence of specific authority, DOE 
cannot pay interest. The EPACT provides no authority for the payment of 
interest on credits or refunds made to utilities. However, DOE expects 
the majority of credits to Special Assessments to be completed in 
Fiscal Year 1994 as a result of the reconciliation process.

Q. Method of Payment

    One commenter requested that DOE modify the final rule, which 
requires payment to be made by wire transfer, to allow domestic 
utilities to make payment of the Special Assessment by other electronic 
funds transfer methods.
    The final rule continues to specify wire transfer as the method of 
payment because this is the only electronic method accepted by the 
Department of Treasury. This method is consistent with payment methods 
already in use and familiar to domestic utilities. DOE is currently 
investigating the use of the Automated Clearing House method of payment 
with the Department of Treasury. Should this collection procedure 
become available, DOE may propose modification to this rule to reflect 
the change.

R. Reconciliation Adjustments and Appeals

    Several commenters remarked that thirty days from the date of a 
Special Assessment invoice was insufficient time to file a notice 
requesting an invoice adjustment. One of the commenters recommended 
that DOE clarify the phrase in section 766.104(a) ``* * * filing of the 
notice is complete only upon receipt by DOE.'' The commenter was 
concerned that this language could be construed to mean that filing of 
a notice is only complete when DOE deems the documentation supplied 
with such notice to be acceptable. DOE believes that thirty days is 
sufficient time to file a notice requesting adjustment. The final rule 
clarifies that domestic utilities are considered to have met the 30-day 
filing deadline upon receipt by DOE of the notice requesting an 
adjustment, and not contingent upon acceptance of supporting 
documentation by DOE. If more time is needed to gather probative 
information, DOE will consider utility requests for additional time, up 
to 90 days, to gather the necessary information based on a showing of 
need.
    One commenter requested that DOE provide guidelines for 
verification of transactions involving non-utilities and foreign 
utilities, and for the recalculation of utility assessments and the 
notification of changes in assessments. DOE does not believe that 
guidelines would be helpful for these purposes because the use of 
reliable and probative documentation, provided by selling and 
purchasing utilities and other sources, would be adequate and would 
provide flexibility in accomplishing the purpose of the reconciliation 
process.
    One domestic utility requested that DOE amend the Section-by-
Section Analysis in the interim final rule to clarify that DOE is 
giving equal weight to the seller's and purchaser's documentation 
submitted in the reconciliation process. DOE has amended section 
766.104 and the Section-by-Section Analysis to reflect this request.
    DOE has also amended the final rule to allow the Department to 
acquire probative documentation that may not reside with the Department 
or with a domestic utility, if the Department believes that such 
information would be useful for reconciliation of SWU records. During 
the reconciliation process, DOE will provide to the affected utilities 
the substance of any data obtained from other sources, but may withhold 
the source of the information consistent with applicable 
confidentiality requirements.
    One commenter was concerned that DOE had not provided for refunds 
of over-payments of Special Assessments. The final rule provides for 
refunds of Special Assessment payments in cases where it is determined 
that an over-payment has been made, with the exception of FY 1993 
invoices. For FY 1993, DOE has already issued credits or refunds as 
appropriate.

S. Prepayment of Special Assessments

    Subsequent to the comment period, one domestic utility requested to 
prepay future year Special Assessments. For convenience and expediency, 
DOE agrees to accommodate this request and has added to the final rule 
a new section 766.107 permitting prepayments. However, DOE will apply 
only the pro- rata share of any prepayment to a given fiscal year to 
ensure that the total Special Assessment for any fiscal year does not 
exceed $150 million (adjusted for inflation).

T. Miscellaneous Comments

    One commenter requested that section 766.1 be revised to read as 
follows: ``The provisions of this part establish policies applicable to 
administration of the Fund established by sections 1801, 1802, and 1803 
of the Act as amended.'' DOE has revised the final rule to reflect this 
request.
    Another commenter requested that a definition for the term 
``delivery'' be included in the final rule, asserting that unused SWU 
credits held by a utility should not be considered deliveries for 
purposes of determining the utility's SWU purchases. DOE does not 
believe a definition of delivery is necessary because it is relying 
upon the Toll Enrichment Services System (TESS), which is defined in 
the final rule. The TESS does not define the term delivery but includes 
data on SWU deliveries to domestic utilities. DOE intends to use TESS 
data in determining SWU deliveries for purposes of determining SWU 
purchases from DOE. As appropriate, DOE will modify the application of 
TESS data for any discrepancies or further transactions raised during 
the reconciliation process.
    One commenter requested DOE to insert the word ``commercial'' 
immediately before ``electricity generation'' in the definition of 
Domestic Utility. This comment is consistent with the EPACT, and DOE 
has revised the final rule to incorporate the change.
    Two commenters requested that the number of significant digits used 
in calculating the Special Assessment be specified in the final rule. 
The final rule has been modified to specify that five significant 
digits will be used in the calculation of the Special Assessment.
    In addition to the changes made in response to comments, DOE has 
also made a number of clarifying editorial changes in the final rule.

U. Review Under Executive Order 12866

    Several commenters addressed DOE's decision not to consider the 
final rule as a major rule under Executive Order 12291 (recently 
replaced by Executive Order 12866). The commenters believe that the 
annual Special Assessment of $150 million appears to satisfy the 
criteria for a major rule, or in the case of Executive Order 12866 a 
significant regulatory action, having an effect of over $100 million on 
the economy. While the assessments to be paid by members of the 
electric utility industry will exceed $100 million annually, and may 
even be considered a major cost to the industry, these costs are not 
the result of any exercise of DOE's discretion in this final rule, but 
rather are specifically imposed by EPACT. After consultation with the 
Office of Management and Budget, DOE has determined the final rule is 
not a significant regulatory action.

V. Review Under the Paperwork Reduction Act

    Many commenters stated that the final rule imposes an additional 
paperwork burden on the public, and that hundreds of hours have already 
been spent in additional paperwork in response to this rule. In 
consultation with the Office of Management and Budget (OMB), DOE has 
determined, under the Paperwork Reduction Act (44 U.S.C. Sec. 3501 et 
seq.), that the final rule imposes relatively minimal additional 
paperwork burden on the public. Therefore, DOE will not amend the 
rule's information collection requirements.

IV. Section by Section Analysis

A. Subpart A--General

    1. Sections 766.1 and 766.2  Purpose and Applicability
    Section 766.1 specifies that the purpose of this rule is to 
establish procedures for the Special Assessment of domestic utilities 
for the Fund pursuant to sections 1801, 1802 and 1803 of the Act. 
Section 766.2 describes the applicability of the rule, stating that it 
applies to all domestic utilities in the United States that purchased 
SWUs from the Department between 1945 and October 23, 1992.
2. Section 766.3  Definitions
    Section 766.3 sets forth pertinent definitions applicable to Part 
766. DOE has added definitions for ``commercial electricity 
generation'' and ``use and burnup charges.''

B. Subpart B--Procedures for the Special Assessment for the Uranium 
Enrichment Decontamination and Decommissioning Fund

1. Section 766.101  Data Utilization
    Section 766.101 identifies the records upon which the determination 
of the SWUs purchased for domestic, foreign, and defense purposes shall 
be based. An audit was completed on records in DOE's possession on July 
19, 1993, by an independent accounting firm prior to initial billing. 
These records reflect all SWUs produced and delivered by DOE (or DOE's 
predecessor agencies) from 1945 to October 23, 1992. These records 
reflect initial production and delivery of SWUs, and do not reflect 
subsequent transactions involving DOE SWUs by domestic utilities. 
Accordingly, DOE may also use privately held, reliable, and probative 
records of SWU transactions. Access to DOE records is subject to 
generally applicable laws and regulations governing classified and 
sensitive unclassified information and materials. Requests for 
confidential treatment of business records submitted to DOE are subject 
to 10 CFR Part 1004.
2. Section 766.102  Calculation Methodology
    Section 766.102 describes the method for calculating Special 
Assessments. It is based on the formula described in the text of the 
Act. The rule has been modified so that all calculations will be 
carried to five significant digits.
3. Section 766.103  Special Assessment Invoices
    Section 766.103 addresses the billing of the Special Assessments. 
DOE issued Fiscal Year 1993 invoices in September 1993, along with a 
summary of supporting information as described in paragraph (b) of 
section 766.103. Under paragraph (c), DOE will issue similar invoices 
in future fiscal years and update supporting information as 
appropriate.
4. Section 766.104  Reconciliation, Adjustments, and Appeals
    Section 766.104 outlines procedures that must be followed by 
domestic utilities when seeking adjustments of invoices. DOE 
anticipates that this procedure will be used most often with respect to 
the Fiscal Year 1993 Special Assessment as domestic utilities present 
records of secondary market SWU transactions for reconciliation of the 
allocation of SWUs. Following reconciliation of records, DOE will 
provide, in appropriate cases, refunds or additional assessments. 
Determinations under section 766.104 will serve as precedents, and may 
be the basis for summary determinations for repetitious claims filed in 
the years following Fiscal Year 1993.
    During the administrative reconciliation process, each domestic 
utility will have the opportunity to question the allocation of SWUs 
that was the basis of the Special Assessment, and DOE will have the 
opportunity to adjust the allocation of SWUs based on probative 
information it obtains from other sources. In most instances, 
documentary evidence of SWU transactions, in the nature of resales or 
purchases of DOE SWUs from other sources, is in the possession of 
domestic utilities or other parties involved in the secondary market. 
Domestic utilities will be responsible for raising the issue of resales 
and purchases and should be prepared to respond to any questions 
regarding their records of resales and purchases; however, DOE may rely 
on information from other sources, if it is reliable and adequately 
probative of the transactions documented, to validate the content of 
utility records. DOE shall attempt to verify all claims with 
corroborating documentation provided by both the seller and purchaser. 
In order to obtain corroborating evidence, DOE may rely on its subpoena 
authority pursuant to section 161(c) of the Act. DOE may also seek 
relevant data from the Nuclear Regulatory Commission's NMMSS. DOE may 
give greater weight to documents that were prepared contemporaneously 
with the purchase or sale of SWUs, although other documentation will be 
considered. As appropriate, DOE will modify its application of TESS 
data for discrepancies and additional transactions raised during the 
reconciliation process.
    DOE considered the possibility of delaying the requirement to make 
payments until reconciliation of records is complete, but rejected such 
a procedure because the time required to reconcile records would have 
unduly delayed the program. This would have frustrated Congress's 
intention to establish the Fund expeditiously, and caused domestic 
utilities to encounter delays in obtaining appropriate rate relief.
    Section 766.104 also provides an administrative appeal procedure 
for domestic utilities to challenge an adverse determination by DOE on 
a Special Assessment. Appeals may be filed with the Office of Hearings 
and Appeals (OHA), a quasi-judicial body that reports to the Secretary 
of Energy. The OHA is responsible for conducting many of the informal 
adjudicative proceedings of DOE involving separation of functions. DOE 
chose OHA to conduct the appeals process because of its expertise in 
developing administrative records regarding economic issues. In 
connection with these duties, OHA holds hearings, receives evidence, 
develops a record, and issues a final determination, which is subject 
to review in federal courts. The procedures of OHA applicable to this 
rule are set forth in 10 CFR Part 205, Subpart H. DOE has revised the 
rule to clarify that it will rely upon decisions from the OHA and any 
ruling from courts with appropriate jurisdiction in revising records of 
SWU transactions.
5. Section 766.105  Payment Procedures
    Section 766.105 provides that DOE shall specify the procedures that 
shall be followed by domestic utilities in payment of their apportioned 
share of the Special Assessment. Wire transfer is identified as the 
method of payment.
6. Section 766.106  Late Payment Fees
    Section 766.106 addresses procedures for assessment of late payment 
fees in case of a late payment by a domestic utility of its special 
assessment.
7. Section 766.107  Prepayment of Special Assessments
    Section 766.107 has been added to the rule to allow prepayment of 
future year Special Assessments.

V. Review Under Executive Order 12866

    DOE has reviewed this final rule and, after consultation with the 
Office of Information and Regulatory Affairs within the OMB, determined 
that the final rule is not a ``significant regulatory action'' under 
Executive Order 12866, ``Regulatory Planning and Review,'' (58 FR 
51735, October 4, 1993). Accordingly, today's action was not subject to 
review under the Executive Order by the Office of Information and 
Regulatory Affairs.
    Under one criterion of the Executive Order, a regulatory action is 
deemed significant if it is expected to have an annual effect on the 
economy of $100 million or more. It was determined that this criterion 
did not apply to today's action for the following reasons. While the 
money to be paid by members of the electric utility industry under the 
Special Assessment will exceed $100 million annually, these costs are 
not the result of any exercise of DOE's discretion in the rule. Rather, 
these costs are specifically imposed by the EPACT and reflect for 
domestic utilities their statutory pro rata share of costs related to 
the remediation and D&D of DOE's uranium enrichment facilities.

VI. Review Under the Regulatory Flexibility Act

    In accordance with section 605 (b) of the Regulatory Flexibility 
Act, 5 U.S.C. Sec. 601 et seq., DOE finds that sections 603 and 604 of 
that Act do not apply to this rule because it will not have a 
significant economic impact on a substantial number of small entities. 
This finding is based on a determination that the domestic utilities 
who will be assessed are not small entities.

VII. Review Under the Paperwork Reduction Act

    The information collection requirements in this rule have been 
approved by the OMB under the Paperwork Reduction Act and have been 
assigned OMB control number 1910-1400.

VIII. Review Under the National Environmental Policy Act

    This rule establishes procedures for the Special Assessment of 
domestic utilities for amounts that are to be deposited in the Fund. 
The Fund will be used to pay for the cost of D&D and remedial action 
activities at DOE's uranium enrichment facilities, and for the 
reimbursement of certain costs of D&D, reclamation, and other remedial 
actions incurred by licensees at active uranium or thorium processing 
sites, as specified in Title X of the EPACT. Implementation of this 
rule will not affect the legally required cleanup of the sites or 
result in any other environmental impacts. The Department has therefore 
determined that this rule is covered under the Categorical Exclusion 
found at paragraph A.6 of Appendix A to Subpart D, 10 CFR Part 1021, 
which applies to the establishment of procedural rulemakings. 
Accordingly, neither an environmental assessment nor an environmental 
impact statement is required.

IX. Review Under Executive Order 12612

    This final rule does not have a substantial direct effect on the 
states, the relationship between the states and the Federal Government, 
or the distribution of power and responsibilities among various levels 
of Government. No Federalism assessment under Executive Order 12612 is 
required.

X. Review Under Executive Order 12778

    Section 2 of Executive Order 12778 instructs each agency to adhere 
to certain requirements in promulgating new regulations and reviewing 
existing regulations. These requirements, set forth in sections 2 (a) 
and (b), include eliminating drafting errors and needless ambiguity, 
drafting the regulations to minimize litigation, providing clear and 
certain legal standards for affected conduct, and promoting 
simplification and burden reduction. Agencies are also instructed to 
make every reasonable effort to ensure that the regulation clearly 
specifies any preemptive effect, effect on existing Federal law or 
regulation, and retroactive effect, describes any administrative 
proceedings to be available prior to judicial review and any provisions 
for the exhaustion of such administrative proceedings; and defines key 
terms. DOE certifies that today's final rule meets the requirements of 
sections 2 (a) and (b) of Executive Order 12778.

List of Subjects in 10 CFR Part 766

    Confidential Business Information, Electric Power Rates, Electric 
Utilities, Nuclear Materials, Radioactive Materials, Reclamation, 
Reporting & Recordkeeping Requirements, Uranium, Waste Treatment & 
Disposal.

    Issued in Washington, D.C., on this 8th day of August, 1994
Thomas P. Grumbly,
Assistant Secretary for Environmental Management.
    For the reasons set forth in the Preamble, Part 766 of Title 10 of 
the Code of Federal Regulations is revised to read as set forth below:

PART 766--URANIUM ENRICHMENT DECONTAMINATION AND DECOMMISSIONING 
FUND; PROCEDURES FOR SPECIAL ASSESSMENT OF DOMESTIC UTILITIES

Subpart A--General

Sec.
766.1 Purpose
766.2 Applicability
766.3 Definitions

Subpart B--Procedures for Special Assessment

766.100 Scope
766.101 Data utilization
766.102 Calculation methodology
766.103 Special Assessment invoices
766.104 Reconciliation, adjustments and appeals
766.105 Payment procedures
766.106 Late payment fees
766.107 Prepayment of future special assessments

    Authority: 42 U.S.C. Secs. 2201, 2297g, 2297g-1, 2297g-2, 7254.

Subpart A--General


Sec. 766.1  Purpose.

    The provisions of this part establish procedures for the Special 
Assessment of domestic utilities for the Uranium Enrichment 
Decontamination and Decommissioning Fund pursuant to sections 1801, 
1802 and 1803 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 
Sec. 2011 et seq.).


Sec. 766.2  Applicability.

    This part applies to all domestic utilities in the United States 
that purchased separative work units from the DOE between 1945 and 
October 23, 1992.


Sec. 766.3  Definitions.

    For the purposes of this part, the following terms shall be defined 
as follows:
    CPI-U means the Consumer Price Index for all-urban consumers 
published by the Department of Labor.
    Commercial electricity generation means the production of 
electricity for sale to consumers.
    DOE means the United States Department of Energy and its 
predecessor agencies.
    Domestic utility means any utility in the United States that has 
purchased SWUs produced by DOE for the purpose of commercial electrical 
generation during the period beginning in 1945 to October 23, 1992.
    Fund means an account in the U.S. Treasury referred to as the 
Uranium Enrichment Decontamination and Decommissioning Fund, 
established by section 1801 of the Atomic Energy Act of 1954, as 
amended.
    Oak Ridge Operations Office means the Oak Ridge Operations Office 
of the Department of Energy in Oak Ridge, Tennessee.
    Special Assessment means the Special Assessment levied on domestic 
utilities for payments into the Fund.
    SWU means a separative work unit, the common measure by which 
uranium enrichment services are sold.
    TESS means the Toll Enrichment Services System, which is the 
database that tracks uranium enrichment services transactions of the 
DOE Oak Ridge Operations Office for the purpose of planning, toll 
transaction processing, customer invoicing and historical tracking of 
SWU deliveries.
    Use and burnup charges mean lease charges for the consumption of 
SWUs and natural uranium.

Subpart B--Procedures for Special Assessment


Sec. 766.100  Scope.

    This subpart sets forth the procedures for the Special Assessment 
of domestic utilities for funds to be deposited in the Fund.


Sec. 766.101  Data utilization.

    DOE shall use the records from the Toll Enrichment Services System 
(TESS) and other records maintained by the Oak Ridge Operations Office 
in order to determine the total SWUs purchased from DOE for all 
purposes. DOE shall use records from TESS, relevant records of domestic 
utilities, and such other information as DOE deems to be reliable and 
probative in determining the number of SWUs that were purchased by each 
domestic utility prior to October 24, 1992. A domestic utility shall be 
considered to have purchased a SWU from DOE if the SWU was produced by 
DOE but purchased by the domestic utility from another source. DOE 
shall consider a purchase to have occurred upon the delivery of a SWU 
to the domestic utility purchasing the SWU. A domestic utility shall 
not be considered to have purchased a SWU from DOE if the SWU was 
purchased by the domestic utility but subsequently sold to another 
source.


Sec. 766.102  Calculation methodology.

    (a) Calculation of Domestic Utilities' Annual Assessment Ratio to 
the Fund. Domestic utilities shall be assessed annually for their share 
of the Fund. The amount of the assessment shall be determined by the 
ratio of SWUs produced by DOE and purchased by domestic utilities prior 
to October 24, 1992, to the total number of SWUs produced by DOE for 
all purposes (including SWUs produced for defense purposes). All 
calculations will be carried out to the fifth significant digit. This 
ratio is expressed by the following hypothetical example:

------------------------------------------------------------------------
 SWUs purchased                 Total SWUs                   Special    
by all domestic               produced--all                 assessment  
   utilities                     purposes                     ratio     
------------------------------------------------------------------------
12345..........            45678            =        .27026     
------------------------------------------------------------------------

    (b) Calculation of the Baseline Total Annual Special Assessment for 
Domestic Utilities. The Annual Special Assessment ratio calculated in 
paragraph (a) of this section shall be multiplied by $480 million, 
yielding the total amount of the Baseline Total Annual Special 
Assessment as of October 1992. In the event that this amount is in 
excess of $150 million, the Baseline Total Annual Special Assessment 
shall be capped at $150 million. All calculations will be carried out 
to the fifth significant digit. The Baseline Total Annual Special 
Assessment is determined as shown in the following hypothetical 
example:

------------------------------------------------------------------------
                                  Annual                Baseline total  
     Total fund                 assessment              annual special  
                                  ratio                   assessment    
------------------------------------------------------------------------
$480,000,000.......     x         0.27026        =       $129,724,800   
------------------------------------------------------------------------

    (c) Calculation of Baseline Total Annual Special Assessment per 
Utility. The ratio of the total number of SWUs purchased by an 
individual domestic utility for commercial electricity generation, to 
the total number of SWUs purchased by all domestic utilities for 
commercial electricity generation, multiplied by the Baseline Total 
Annual Special Assessment calculated in paragraph (b) of this section, 
determines an individual utility's share of the Baseline Total Annual 
Special Assessment. All calculations will be carried out to the fifth 
significant digit. A hypothetical example of such a calculation 
follows:

----------------------------------------------------------------------------------------------------------------
                                                                           Baseline total                       
    Single               All utility            Utility ratio              annual special     Individual utility
utility SWUs                SWUs                                            assessment       special Assessment 
----------------------------------------------------------------------------------------------------------------
300..........            12345        =         .02430       x          $129,724,800        $3,152,312.64  
----------------------------------------------------------------------------------------------------------------

    (d) Calculation of Inflation Adjustment. The Baseline Total Annual 
Special Assessment billed to domestic utilities shall be adjusted for 
inflation using the most recently published monthly CPI-U and the CPI-U 
for October 1992. All calculations will be carried out to the fifth 
significant digit. A hypothetical example of such a calculation 
follows:

------------------------------------------------------------------------
                                                           Adjustment   
 CPI-U (Mar 93)               CPI-U (Oct 92)               multiplier   
------------------------------------------------------------------------
150.............            141.8         =         1.05783     
------------------------------------------------------------------------


                                                                        
  Utility special              Adjustment              Adjusted utility 
    Assessment                 multiplier                assessment     
                                                                        
$3,152,312.64......    x         1.05783        =       $3,334,610.88   
                                                                        

Sec. 766.103  Special Assessment invoices.

    (a) DOE shall issue annually a Special Assessment invoice to each 
domestic utility. This invoice will specify itemized quantities of 
enrichment services by reactor. In each Special Assessment invoice, DOE 
shall require payment, on or before 30 days from the date of each 
invoice, of that utility's prorated share of the Baseline Total Annual 
Special Assessment, as adjusted for inflation using the most recently 
published monthly CPI-U data.
    (b) DOE shall enclose with the Fiscal Year 1993 Special Assessment 
invoice a sealed, business confidential, summary SWU transaction 
statement including:
    (1) TESS information which documents, by reactor, the basis of the 
utility's assessment;
    (2) A list of domestic utilities subject to the Special Assessment;
    (3) The total number of SWUs purchased from DOE by all domestic 
utilities for all purposes prior to October 24, 1992.
    (4) The total number of SWUs purchased from DOE for all purposes 
prior to October 24, 1992, including SWUs purchased or produced for 
defense purposes; and
    (5) Such other information as may be appropriate.
    (c) With regard to any fiscal year after Fiscal Year 1993, DOE 
shall enclose a summary SWU transaction statement with Special 
Assessment invoices that will include updated information regarding 
adjustments to Special Assessments resulting from the reconciliation 
and appeals process under Section 766.104.
    (d) The date of each Annual Special Assessment invoicing will be 
set on or about October 1 with payment due 30 calendar days from the 
date of invoice starting with the Fiscal Year 1995 Special Assessment.


Sec. 766.104 Reconciliation, adjustments and appeals.

    (a) A domestic utility requesting an adjustment shall, within 30 
days from the date of a Special Assessment invoice, file a notice 
requesting an adjustment. Such notice shall include an explanation of 
the basis for the adjustment and any supporting documents, and may 
include a request for a meeting with DOE to discuss its invoice. If 
more time is needed to gather probative information, DOE will consider 
utility requests for up to 90 days additional time, providing that the 
initial notice requesting an adjustment was timely filed. The notice 
shall be filed at the address set forth in the Special Assessment 
invoice, and filing of this notice is complete only upon receipt by 
DOE. Domestic utilities are considered to have met the filing 
requirements upon DOE's receipt of the notice requesting an adjustment 
without regard to DOE's acceptance of supporting documentation. The 
filing of a notice for an adjustment shall not stay the obligation to 
pay.
    (b) DOE may request additional information from domestic utilities 
and may acquire data from other sources.
    (c) After reviewing a notice submitted under paragraph (a) of this 
section and other relevant information, and after making any necessary 
adjustment to its records in light of reliable and adequately probative 
records submitted in connection with the request for adjustment or 
otherwise obtained by DOE, DOE shall make a written determination 
granting or denying the requested adjustment. As appropriate, DOE shall 
modify the application of TESS data for any discrepancies or further 
transactions raised during the reconciliation process.
    (d) Any domestic utility that wishes to dispute a written 
determination under paragraph (c) of this section shall have the right 
to file an appeal with the Office of Hearings and Appeals, U.S. 
Department of Energy, 1000 Independence Avenue S.W., Washington, DC 
20585. Except for the Fiscal Year 1993 Special Assessment, any appeal 
must be filed on or before 30 days from the date of the written 
determination and should contain information of the type described in 
10 CFR Part 205, Subpart H. With regard to a written determination 
under paragraph (c) of this section concerning a Fiscal Year 1993 
Special Assessment, a domestic utility must file an appeal on or before 
30 days from the effective date of this paragraph or from the date of 
such written determination, whichever is later. The decision of the 
Office of Hearings and Appeals shall be the final decision of DOE. Upon 
completion of the reconciliation process, all records of SWU 
transactions shall be finalized and shall become the basis of 
subsequent Special Assessment invoices. These records shall be revised 
to reflect any decisions from the Office of Hearings and Appeals and 
any applicable court rulings.
    (e) Refunds of Special Assessments shall be provided in cases where 
DOE has determined, as a result of reconciliation, that an overpayment 
has been made by a domestic utility, and that the domestic utility has 
no further current obligation to DOE.


Sec. 766.105  Payment procedures.

    DOE shall specify payment details and instructions in all Special 
Assessment invoices. Each domestic utility shall make payments to the 
Fund by wire transfer to the Department of Treasury.


Sec. 766.106  Late payment fees.

    In the case of a late payment by a domestic utility of its Special 
Assessment, the domestic utility shall pay interest at the per annum 
rate (365-day basis) established by DOE for general application to 
monies due DOE and not received by DOE on or before a designated due 
date. Interest shall accrue beginning the date of the designated 
payment except that, whenever the due date falls on a Saturday, Sunday, 
or a United States legal holiday, interest shall commence on the next 
day immediately following which is not a Saturday, Sunday, or United 
States legal holiday. Late payment provisions for the Special 
Assessment to the Fund shall be based on the Treasury Current Value of 
Funds Rate (which is published annually by the Treasury and used in 
assessing interest charges for outstanding debts on claims owed to the 
United States Government), plus six (6) percent pro rata on a daily 
basis. The additional six (6) percent charge shall not go into effect 
until five (5) business days after payment was originally due. Late 
payment fees shall be invoiced within two days of receipt of utility 
payment of the special assessment when delinquency is less than 30 
days. For longer periods of delinquency, DOE will submit additional 
invoices, as appropriate. Late payment fees will be due 30 days from 
the date of invoice.


Sec. 766.107  Prepayment of future Special Assessments

    DOE shall accept prepayment of future Special Assessments upon 
request by a domestic utility. A domestic utility's liability for the 
future assessments shall be satisfied to the extent of the prepayments. 
DOE shall use the pro rata share of prepayments attributable to a given 
fiscal year plus the Special Assessments collected from utilities who 
did not prepay for that fiscal year, in order to determine that the 
total amount of Special Assessments collected from domestic utilities 
in a given fiscal year does not exceed $150 million, annually adjusted 
for inflation.

[FR Doc. 94-19922 Filed 8-12-94; 8:45 am]
BILLING CODE 6450-01-P