[Federal Register Volume 60, Number 69 (Tuesday, April 11, 1995)]
[Rules and Regulations]
[Pages 18344-18346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8843]



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NUCLEAR REGULATORY COMMISSION

10 CFR Part 2

RIN 3150-AF24


NRC Size Standards; Revision

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending the NRC's 
size standards used to qualify an NRC licensee as a ``small entity'' 
under the Regulatory Flexibility Act. This action is necessary to 
establish a separate standard to be used to determine whether a 
licensee who is a manufacturer would qualify as a small entity, to 
adjust the receipts-based standard to account for the effects of 
inflation since 1985, and to eliminate the separate $1 million size 
standard for private practice physicians and apply the revised 
receipts-based size standard of $5 million to this class of licensees.

EFFECTIVE DATE: May 11, 1995.

FOR FURTHER INFORMATION CONTACT: Michael T. Lesar, Chief, Rules Review 
Section, Rules Review and Directives Branch, Division of Freedom of 
Information and Publications Services, Office of Administration, 
telephone (301) 415-7163.

SUPPLEMENTARY INFORMATION:

Background

    In 1983, the NRC surveyed its materials licensees to create an 
economic profile sufficient to consider regulatory alternatives 
tailored to the size of the licensee. After analyzing the data and 
consulting with the Small Business Administration (SBA), the NRC 
developed a proposed size standard that would be appropriate to use in 
determining which of its licensees would qualify as small entities for 
the purposes of compliance with the Regulatory Flexibility Act. The NRC 
published its proposed size standard for notice and comment in the 
Federal Register of May 21, 1985 (50 FR 20913). After considering the 
comments received, the NRC adopted its final size standards as noted in 
the Federal Register of December 9, 1985 (50 FR 50241). In the Federal 
Register of November 6, 1991 (56 FR 56671), the NRC restated the size 
standards to include the Regulatory Flexibility Act's definition of 
small governmental jurisdiction. To further improve clarity, the NRC 
changed the presentation of the size standards to conform to the 
listing of definitions of small entities in the Regulatory Flexibility 
Act.

The Proposed Rule

    On November 30, 1994 (59 FR 61293), the NRC published a proposed 
rule to amend the NRC's size standards. The NRC proposed to establish a 
separate standard to be used to determine whether a licensee who is a 
manufacturer would qualify as a small entity and to adjust the 
receipts-based standard to account for the effects of inflation since 
1985. In addition, the NRC proposed to eliminate the separate $1 
million size standard for private practice physicians and apply the 
revised receipts-based size standard of $5 million to this class of 
licensees. By amending the size standards through rulemaking, the NRC 
indicated its intent to codify NRC's size standards in 10 CFR part 2.
    As discussed in the preamble to the proposed rule, these amendments 
were developed after several factors indicated that some adjustments to 
the NRC's size standards were desirable.
    The NRC received a number of comments concerning its size standards 
and the failure of the NRC to promulgate a size standard that 
differentiates between manufacturing entities and service providers in 
response to the final rule implementing Public Law 101-508 (56 FR 
31472; July 10, 1991, and subsequent years). These commenters indicated 
that applying a gross receipts standard to a manufacturing concern 
resulted in an adverse impact on a manufacturer. The SBA size standards 
for manufacturers are prescribed in terms of a maximum number of 
employees rather than in terms of gross receipts.
    The NRC conducted a survey to update the economic profile of its 
materials licensees. The purpose of this survey was to evaluate the 
continued efficacy of NRC's size standards and to obtain the 
information needed to determine the necessity and effect of a separate 
standard for manufacturers within the context of the nuclear industry.
    The SBA adjusted its receipts-based size standard levels to 
mitigate the effects of inflation from 1984 to the present in a final 
rule published in the Federal Register of April 7, 1994 (59 FR 16513).

Public Comment

    The comment period on the proposed rule closed December 30, 1994. 
The NRC received two letters of public comment on this action.
    One commenter objected to the inclusion of a size standard based on 
the [[Page 18345]] number of employees for qualification of a 
manufacturing concern as a small entity in the NRC's regulatory 
programs and the assessment of reduced annual fees. The commenter 
stated that the total employee population of a manufacturer has little 
bearing on revenue potential and revenue has little bearing on the risk 
to public health and safety. The commenter believes that although 
employee population may be a consideration, it must be considered in 
conjunction with revenue produced and with the complexity of the 
operation in determining size standards. The commenter also asserts 
that because manufacturers are authorized to possess significant 
quantities of multiple isotopes, both as sealed sources and loose 
material for use in the manufacture and distribution of products, they 
present a much higher risk than entities that hold a license for 
possession and use of sealed sources. The commenter states that the 
loss of revenue from manufacturers categorized as small entities will 
have to be made up by small licensees who may have only one or two 
devices on site.
    The NRC is retaining a separate standard based on the number of 
employees for manufacturers in the final rule because this standard is 
required by the Small Business Act (15 U.S.C. 632 (a)(2)). This 
provision prohibits a Federal department or agency from prescribing a 
size standard for categorizing a business concern as a small business 
concern unless the standard provides for determining the size of a 
manufacturing concern based upon employment.
    One commenter was pleased to see that the NRC raised the size 
standard for private practice physicians from $1 million to $5 million. 
However, the commenter indicated that this action did not go far enough 
in addressing the assessment of user fees. The commenter suggested that 
the NRC consider evaluating the gross receipts of departments within a 
medical facility that utilize NRC services and not the overall receipts 
of the facility. The commenter contends that if the NRC focused on the 
smaller entity within the license, many licensees would qualify for the 
small business exemptions and would pay fees based on the actual 
revenue generated under the license.
    The NRC notes that the Small Business Act establishes criteria for 
a small business concern. To qualify as a small business concern, the 
concern must be independently owned and operated and not dominant in 
its field of operation (15 U.S.C. 632 (a)(1)). A department of a 
medical facility does not meet this criterion. The NRC has included 
language in the final rule to address this type of situation.
    In response to each of the comments, the NRC further emphasizes 
that the purpose of this rule is to amend the size standards used by 
the NRC to qualify an NRC licensee as a ``small entity'' under the 
Regulatory Flexibility Act. The application of these standards in the 
fee schedule rulemaking, or any other rulemaking proceeding, is beyond 
the scope of this rule.

The Final Rule

    The NRC is adopting a size standard of 500 or fewer employees for 
business concerns that are manufacturing entities. This standard is the 
most commonly used SBA employee standard and would be the standard 
applicable to the types of manufacturing industries that would hold an 
NRC license. Under this standard, approximately 48 percent of the 
licensees who indicated that they were manufacturers would qualify as 
small entities.
    The NRC is adjusting its receipts-based size standard to 
accommodate inflation and to conform to the SBA final rule. The NRC is 
raising its receipts-based small business size standard from $3.5 
million to $5 million. The NRC also is eliminating the separate $1 
million size standard for private practice physicians and applying the 
revised receipts-based size standard of $5 million to this class of 
licensees. This mirrors the revised SBA standard of $5 million for 
medical practitioners. For greater clarity, the NRC has included a 
definition of the term receipts in the final rule.
    The survey of materials licensees indicated that 26 percent 
qualified as small entities under the NRC standards being replaced by 
this rule. Under the size standards adopted in this document, 35 
percent of these licensees would qualify as small entities, an increase 
of 9 percent. When NRC adopted its size standards in 1985, the NRC 
staff estimated that approximately 35 percent of the materials 
licensees would qualify as small entities.
    The Small Business Credit and Business Opportunity Enhancement Act 
of 1992 (Pub. L. 102-366) amended the Small Business Act concerning the 
establishment of agency-specific small business size standards. The NRC 
size standards were developed so as to meet the criteria specified in 
Pub. L. 102-366. As required by Pub. L. 102-366, the NRC size standards 
were approved by the Administrator, SBA.
    This final rule also codifies NRC's size standards in part 2 of the 
Commission's regulations. Previously, NRC's size standards had been 
published in the notices section of the Federal Register.

Environmental Impact: Categorical Exclusion

    The NRC has determined that this final rule is the type of action 
described in categorical exclusion 10 CFR 51.22(c)(1). Therefore, 
neither an environmental impact statement nor an environmental 
assessment has been prepared for this final regulation.

Paperwork Reduction Act Statement

    This final rule does not contain a new or amended information 
collection requirement subject to the Paperwork Reduction Act of 1980 
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the 
Office of Management and Budget, approval number 3150-0136.

Regulatory Analysis

    A regulatory analysis has not been prepared for this final rule 
because the final rule is administrative in that it amends the criteria 
the NRC uses for determining which of its licensees qualify as small 
entities for the purposes of compliance with the Regulatory Flexibility 
Act. The amended size standards conform to SBA's revised standards and 
result in an increase in the number of NRC licensees that qualify as 
small entities.

Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), the Commission certifies that this rule does not have a 
significant economic impact on a substantial number of small entities. 
The final rule is administrative in that it amends the criteria the NRC 
uses in determining which of its licensees qualify as small entities 
for the purposes of compliance with the Regulatory Flexibility Act. The 
amended size standards conform to SBA's revised standards and result in 
an increase in the number of NRC licensees that would qualify as small 
entities.

Backfit Analysis

    The NRC has determined that the backfit rule, 10 CFR 50.109, does 
not apply to this final rule and, therefore, that a backfit analysis is 
not required for this final rule because these amendments do not impose 
any provisions that would impose backfits as defined in 10 CFR 
50.109(a)(1).

List of Subjects in 10 CFR Part 2

    Administrative practice and procedure, Antitrust, Byproduct 
material, Classified information, Environmental protection, Nuclear 
[[Page 18346]] materials, Nuclear power plants and reactors, Penalties, 
Sex discrimination, Source material, Special nuclear material, Waste 
treatment and disposal.
    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended; the Energy Reorganization 
Act of 1974, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting 
the following amendment to 10 CFR part 2.

PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND 
ISSUANCE OF ORDERS

    1. The authority citation for part 2 continues to read as follows:

    Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 
5841); 5 U.S.C. 552.
    Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 
105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 
U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub. 
L. 97-425, 96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec. 102, 
Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 
88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 
2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat. 
936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 
2135, 2233, 2239). Section 2.105 also issued under Pub. L. 97-415, 
96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued 
under secs. 161b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 83 
Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206, 88 Stat 1246 
(42 U.S.C. 5846). Sections 2.600-2.606 also issued under sec. 102, 
Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332). Sections 
2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 
2.770, 2.780 also issued under 5 U.S.C. 557. Section 2.764 and Table 
1A of Appendix C also issued under secs. 135, 141, Pub. L. 97-425, 
96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also 
issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 
5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 
553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub. 
L. 85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also 
issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. 
L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued 
under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also 
issued under sec. 6, Pub. L. 91-560, 84 Stat. 1473 (42 U.S.C. 2135). 
Appendix B also issued under sec. 10, Pub. L. 99-240, 99 Stat. 1842 
(42 U.S.C. 2021b et seq.).

    2. Section 2.810 is added to read as follows:


Sec. 2.810  NRC size standards.

    The NRC shall use the size standards contained in this section to 
determine whether a licensee qualifies as a small entity in its 
regulatory programs.
    (a) A small business is a for-profit concern and is a--
    (1) Concern that provides a service or a concern not engaged in 
manufacturing with average gross receipts of $5 million or less over 
its last 3 completed fiscal years; or
    (2) Manufacturing concern with an average number of 500 or fewer 
employees based upon employment during each pay period for the 
preceding 12 calendar months.
    (b) A small organization is a not-for-profit organization which is 
independently owned and operated and has annual gross receipts of $5 
million or less.
    (c) A small governmental jurisdiction is a government of a city, 
county, town, township, village, school district, or special district 
with a population of less than 50,000.
    (d) A small educational institution is one that is--
    (1) Supported by a qualifying small governmental jurisdiction; or
    (2) Not state or publicly supported and has 500 or fewer employees.
    (e) For the purposes of this section, the NRC shall use the Small 
Business Administration definition of receipts (13 CFR 121.402(b)(2)). 
A licensee who is a subsidiary of a large entity does not qualify as a 
small entity for purposes of this section.

    Dated at Rockville, Maryland, this 31st day of March, 1995.


    For the Nuclear Regulatory Commission.

James M. Taylor,

Executive Director for Operations.

[FR Doc. 95-8843 Filed 4-10-95; 8:45 am]
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