[Federal Register Volume 60, Number 118 (Tuesday, June 20, 1995)]
[Rules and Regulations]
[Pages 32218-32250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14879]
[[Page 32217]]
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Part II
Nuclear Regulatory Commission
_______________________________________________________________________
10 CFR Parts 170 and 171
Revision of Fee Schedules; 100% Fee Recovery, FY 1995; Final Rule
Federal Register / Vol. 60, No. 118 / Tuesday, June 20, 1995 / Rules
and Regulations
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[[Page 32218]]
NUCLEAR REGULATORY COMMISSION
10 CFR Parts 170 and 171
RIN 3150-AF07
Revision of Fee Schedules; 100% Fee Recovery, FY 1995
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending the
licensing, inspection, and annual fees charged to its applicants and
licensees. The amendments are necessary to implement the Omnibus Budget
Reconciliation Act of 1990, which mandates that the NRC recover
approximately 100 percent of its budget authority in Fiscal Year (FY)
1995 less amounts appropriated from the Nuclear Waste Fund (NWF). The
amount to be recovered for FY 1995 is approximately $503.6 million.
EFFECTIVE DATE: July 20, 1995.
ADDRESSES: Copies of comments received and the agency workpapers that
support these final changes to 10 CFR Parts 170 and 171 may be examined
at the NRC Public Document Room at 2120 L Street, NW. (Lower Level),
Washington, DC 20555.
FOR FURTHER INFORMATION CONTACT: C. James Holloway, Jr., Office of the
Controller, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
Telephone 301-415-6213.
SUPPLEMENTARY INFORMATION:
I. Background.
II. Responses to Comments.
III. Final Action.
IV. Section-by-Section Analysis.
V. Environmental Impact: Categorical Exclusion.
VI. Paperwork Reduction Act Statement.
VII. Regulatory Analysis.
VIII. Regulatory Flexibility Analysis.
IX. Backfit Analysis.
I. Background
Public Law 101-508, the Omnibus Budget Reconciliation Act of 1990
(OBRA-90), enacted November 5, 1990, requires that the NRC recover
approximately 100 percent of its budget authority, less the amount
appropriated from the Department of Energy (DOE) administered NWF, for
FYs 1991 through 1995 by assessing fees. OBRA-90 was amended in 1993 to
extend the NRC's 100 percent fee recovery requirement through FY 1998.
The NRC assesses two types of fees to recover its budget authority.
First, license and inspection fees, established in 10 CFR part 170
under the authority of the Independent Offices Appropriation Act
(IOAA), 31 U.S.C. 9701, recover the NRC's costs of providing
individually identifiable services to specific applicants and
licensees. Examples of the services provided by the NRC for which these
fees are assessed are the review of applications for the issuance of
new licenses or approvals, and amendments to or renewal of licenses or
approvals. Second, annual fees, established in 10 CFR part 171 under
the authority of OBRA-90, recover generic and other regulatory costs
not recovered through 10 CFR part 170 fees.
On March 20, 1995 (60 FR 14670), the NRC published its proposed
rule establishing the licensing, inspection, and annual fees necessary
for the NRC to recover approximately 100 percent of its budget
authority for FY 1995, less the appropriation received from the Nuclear
Waste Fund.
Several changes were proposed by the NRC to the fees to be assessed
for FY 1995. These changes were summarized in the proposed rule (60 FR
14671; March 20, 1995) and are as follows:
1. Change the method for allocating the budgeted costs that cause
fairness and equity concerns. Approximately $56 million would be
allocated to all NRC licensees based on the budgeted dollars for each
class of licensees.
2. Eliminate the materials ``flat'' inspection fees in 10 CFR
170.31 and include the inspection costs with the annual materials fees
in 10 CFR 171.16(d). These actions would streamline the license fee
process and result in more predictable fees.
3. Change the methodology for calculating the professional hourly
rate to better align the budgeted costs with the major classes of
licensees. Two professional staff-hour rates were proposed instead of a
single rate.
4. Change the methodology for calculating annual fees for power
reactors, fuel facilities, and uranium recovery licensees to improve
the relationship between annual fees and the cost of providing
regulatory services to the classes and subclasses of licensees, and to
improve NRC efficiency.
5. Implement the newly promulgated NRC small entity size standards
and establish a new lower-tier size standard for annual fee purposes.
The Commission held a public meeting on March 15, 1995, at which
the NRC staff briefed the Commission on the proposed changes for FY
1995. A transcript of the Commission meeting is available and has been
placed in the Public Document Room.
The American Mining Congress 1 filed a Petition for Rulemaking
which requested among other things that (1) annual fees not be assessed
for mills in a standby status; and (2) a licensee review board to
oversee NRC fees be established. The Commission denied the request on
April 28, 1995 (60 FR 20918) noting that (1) the NRC will continue its
current practice of providing available backup data to support 10 CFR
Part 170 licensing and inspection billings upon request by the
applicant or licensee and (2) petitioner's request that the Department
of Energy be assessed fees for Uranium Mill Tailings Radiation Control
Act (UMTRCA) actions was implemented in the final fee rule for FY 1994.
\1\ The American Mining Congress merged with the National Coal
Association on February 13, 1995, and is now the National Mining
Association.
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II. Responses to Comments
The NRC received twenty-two comments on the proposed rule. Although
the comment period ended on April 19, 1995, the NRC has reviewed and
evaluated all comments received, including those that were late.
Many of the comments were similar in nature. For evaluation
purposes, these comments have been grouped, as appropriate, and
addressed as single issues in this final rule. The comments are as
follows:
A. Comments regarding the major changes proposed in the FY 1995 fee
rule.
1. Change the Method for Allocating Those Budgeted Costs (About $56
Million) That Cause Fairness and Equity Concerns
Comment. The commenters agreed that the proposed method for
allocating approximately $56 million in budgeted costs for NRC
activities which are not directly related to the cost of regulating
licensees represented a more equitable method for distributing the
costs. Many commenters indicated that, pending legislative relief by
Congress to remedy this inequitable situation, they supported the
proposal to treat these costs similar to overhead and distribute these
costs based on the percentage of the budget directly attributable to a
class of licensees. However, the commenters also believed that these
costs should not be paid by any licensee and recommended that the NRC
should continue to urge Congress to modify OBRA-90 to remove these
costs from the fee base. For example, one commenter stated that the
proposed 89% allocation of these costs to power reactors results in a
charge of $511,000 [[Page 32219]] per operating power reactor. The
commenter argued that ``power reactor licensees should not have to bear
this ever increasing additional fee charge for NRC agency costs that
are not related to the regulatory costs of these licensees.
Accordingly, these costs should not be included in the user fee base to
be recovered from power reactor licensees.''
Response. The NRC is adopting in this final rule the allocation
method in the proposed rule because it represents an equitable way to
allocate the costs and most of the comments supported use of the
revised methodology. As noted in the comments, on February 23, 1994,
the NRC submitted its report to Congress on fees in compliance with the
Energy Policy Act of 1992. This report concluded that modifications to
existing statutes governing NRC fees are necessary to alleviate
licensees' major concerns about fairness and equity and to reduce the
NRC administrative burden resulting from assessing fees. The report
recommended enactment of legislation that would reduce the amount to be
recovered from fees from 100 percent of the NRC budget to approximately
90 percent, and eliminate the requirement that NRC assess 10 CFR Part
170 fees. Because the requested legislation has not been enacted, the
NRC in this final rule will allocate the costs (approximately $56
million) that have raised fairness and equity concerns among the
broadest base of NRC licensees. The Commission will continue to discuss
and work with the Congress to make fees more fair and equitable.
2. Streamline and Stabilize Fees
Comment. Commenters, for the most part, supported the proposal to
stabilize fees by adjusting the annual fees starting in FY 1996 by the
percentage change (decrease or increase) in the NRC's total budget.
Commenters also supported the NRC's plan to reexamine this approach
should there be a substantial change in the total NRC budget or in the
magnitude of a specific budget allocation to a specific class of
licensees. Commenters also were in agreement that the ``flat''
materials inspection fees of 10 CFR part 170 should be eliminated and
the costs included in the 10 CFR Part 171 annual fees. Most commenters
agreed that the proposed changes represent a simplification and
streamlining of the fee-setting procedures and are necessary in order
to eliminate the large swings in annual fees that have occurred in past
years and to allow for greater predictability of fees. Other commenters
indicated, however, that they are concerned about the simple annual
percentage change adjustment to future annual fees because there has
been no resolution of certain long-standing concerns associated with
the fairness and equity of NRC fees.
Response. The NRC is adopting in this final rule the proposed
methodology to streamline and stabilize fees based on the comments
received supporting the methodology. Although not a specific change in
this rule, the NRC plans to adjust the annual fees only by the
percentage change in NRC's total budget beginning in FY 1996. The NRC
believes that this action will help stabilize and improve the
predictability of fees. The fees established in this final rule will be
used as the base annual fee in subsequent years and the percentage
change (plus or minus) in the NRC total budget, adjusted to reflect
changes in the total number of licensees paying fees and estimated
collections from 10 CFR part 170 licensing and inspection fees, will be
used to establish annual fees. However, the NRC will make modifications
should there be a substantial change in the NRC budget or in the
magnitude of a specific budget allocation to a class of licensees. To
streamline fees, the NRC is eliminating the materials ``flat''
inspection fees in 10 CFR part 170 by including the cost of inspections
in certain materials licensees' 10 CFR part 171 annual fees.
3. Change the Methodology for Calculating the Professional Hourly Rate
to Better Align the Budgeted Costs With the Major Classes of Licensees
Comment. All commenters responding to this proposed change
supported the revised method of calculating hourly rates to separately,
and more equitably, allocate the costs associated with the reactor and
materials programs. Commenters believe that the new dual rate
structure, which establishes different rates for reactor and materials
reviews, is inherently fairer and more equitable to licensees. Most
commenters were pleased that the rates for both the reactor and
materials classes of applicants have been reduced as compared to FY
1994 and indicated that changing the method of calculating hourly rates
is a step in the right direction towards providing a more reasonable
relationship to the cost of providing regulatory services. Commenters
supported the use of the ``cost center'' concept to identify and
allocate the NRC budgeted resources to different types of major
programs, namely reactor and material licensees, and indicated that
this methodology is more consistent with Congressional intent that the
NRC identify and properly assess fees to the entities that utilize NRC
resources and regulatory services.
Other commenters, however, indicated that while they appreciate the
13 percent reduction in the professional hourly rate for the materials
program (from $133 per hour to $116 per hour), applying such a
uniformly high rate for NRC staff cannot be justified. These commenters
point out that the $116 hourly rate equals or exceeds the hourly
charges of senior consultants, principals, or project managers at major
consulting firms and substantially exceeds the generally accepted rate
for technical staff performing similar work in private industry.
Commenters encouraged the NRC to continue examining its budget
structure and cost allocation methods so that the hourly rate can be
made consistent with and representative of comparable services
performed by private industry. One commenter stated that the NRC has
still not adequately explained the derivation of the hourly rate, aside
from basing it on a presumed number of chargeable hours per full-time
equivalent, or how it relates to the services provided. Another
commenter stated that the hourly rates are arbitrary and do not reflect
the costs of providing regulatory services to licensees.
Response. In this final rule, the NRC has established two
professional hourly rates for FY 1995 which will be used to determine
the 10 CFR Part 170 fees. A rate of $123 per hour is established in
Sec. 170.20 for the reactor program and a second rate of $116 per hour
is established in Sec. 170.20 for the nuclear materials and nuclear
waste programs. The two rates are based on the ``cost center'' concept
that is now being used for budgeting purposes.
The NRC professional hourly rates are established to recover
approximately 100 percent of the agency's Congressionally-approved
budget, less the appropriation from the Nuclear Waste Fund (NWF), as
required by OBRA-90. The rates reflect the NRC cost per direct
professional hour. This cost includes the salary and benefits for the
direct hours, and a prorata share of the salary and benefits for the
program and agency overhead and agency general and administrative
expenses (e.g., rent, supplies, and information technology). Both the
method and budgeted costs used by the NRC in the development of the
hourly rates of $123 and $116 are discussed in detail in Part III,
Section-by-Section Analysis, relating to Sec. 170.20 of the proposed
rule (60 FR 14676; March 20, 1995) and the same section of this final
rule. For example, Table III shows the budgeted costs and
[[Page 32220]] the direct FTEs that must be recovered through fees
assessed for the hours expended by the direct FTEs. Additional details
on the hourly rate are provided in the NRC workpapers located in the
Public Document Room.
4. Modify NRC Small Entity and Lower-Tier Size Standards for Annual Fee
Purposes
Comment. Two commenters addressed the changes proposed by the NRC
for small entity fees. While generally supporting the changes, they
believed additional changes should be made. One commenter stated that
while he was relieved to see the dramatic reduction in materials annual
fees, the company's well logging department of only six employees is
still unable to qualify as a small entity even under the new standard
because the overall gross annual receipts of the consulting company
exceed $7 million. The second commenter stated that the proposed rule
that would raise the dollar threshold for a medical program from $1
million to $5 million will afford him great relief and ensures that
service will continue to be provided to patients. The commenter,
however, believes that a more equitable approach would be to base fees
on the nuclear medicine activity levels or nuclear medicine billing-
receipts levels rather than the total dollar volume of the entire
company.
Response. The NRC uses the receipts-based size standards
established by the Small Business Administration (SBA) to establish its
own small entity size standards. The SBA recently adjusted its
receipts-based size standard levels to account for the effects of
inflation. The NRC adjusted its receipts-based size standards in turn
from $3.5 million to $5 million, to conform to the SBA rule (60 FR
18344; April 11, 1995). The NRC has also eliminated the separate $1
million size standard for private practice physicians and will apply
the receipts-based standard of $5 million to this class of licensees.
This mirrors the revised SBA standard of $5 million for medical
practitioners. The NRC believes that these actions will reduce the
impact of annual fees on small businesses.
With respect to basing fees on the gross receipts for a department
within a company, or on activity levels or nuclear medicine billing-
receipts levels rather than the total dollar volume of the entire
entity, the NRC's size standards are based on the SBA guidance which
defines annual receipts as those which include ``revenues from sales of
products or services, interest, rent, fees, commissions and/or whatever
sources derived.'' Moreover, as NRC has stated previously, it is
impractical to base fees on the criteria suggested by the commenter.
See Regulatory Flexibility Analysis in Appendix A to the final rule
published July 10, 1991 (56 FR 31511-31513).
5. Change the Methodology for Calculating Annual Fees for Power
Reactors, Fuel Facilities, and Uranium Recovery Licensees
Comment. All the commenters representing the power reactor, fuel
facility, and uranium recovery industries supported the simplification
of annual fees and are encouraged that the annual fees have been
reduced compared to FY 1994 levels. Commenters from the reactor
industry favored a uniform fee for each operating power reactor.
Commenters from the uranium recovery industry supported attempts to
make the annual fees more accurately reflect the cost of providing
regulatory services and agreed that the proposed fees are far more
reasonable than in past years. However, these commenters believe that
NRC needs to address a fundamental industry concern that, as the
industry continues to shrink in size thereby decreasing the number of
licensees being charged annual fees, the costs associated with
regulatory services will continue to increase significantly for each
remaining licensee. This trend will force more hardships on an industry
that is already severely depressed. Other uranium recovery licensees
commented that they are concerned with the NRC's proposed fee
calculation matrix, which uses a qualitative estimation ranking of
``significant'', ``some'', ``minor'', or ``none'' to determine a factor
used for establishing the annual fee amount for each license.
Commenters suggest a more quantitative approach should be applied,
using actual costs and resource time allocations, to determine a more
accurate fee assessment schedule.
Response. In this final rule, the NRC has established a single
uniform annual fee for each operating power reactor and has refined its
method of calculating annual fees for fuel facilities and uranium
recovery facilities. The NRC indicated in the final FY 1994 fee rule
that given the questions raised at that time by B&W Fuel Company,
General Atomics, and other fuel facilities, it would reexamine the fuel
facility subclass categorizations, and include any restructuring
resulting from this reexamination in the FY 1995 proposed rule for
notice and comment (59 FR 36901; July 20, 1994). The NRC's revised
methodologies for determining annual fees for fuel facility and uranium
recovery licensees, described in the proposed rule, are based on this
reexamination. These revised methodologies have been used to determine
the final FY 1995 annual fees. The use of the revised methodologies
results in an annual fee that more accurately reflects the cost of
providing regulatory services to the subclasses of fuel facility and
uranium recovery licensees. The revised methodologies are explained in
more detail in Section IV--Section-by-Section Analysis of this final
rule.
With respect to the suggestion that a more quantitative approach be
used to develop the annual fees, the NRC has corroborated the
qualitative estimates with resource and time allocation data where such
data exist. However, such data in some cases are not available at the
level necessary to corroborate the qualitative determinations. The NRC
believes that in such cases the approach to be used still results in a
more fair and accurate annual fee being charged to fuel facility and
uranium recovery licensees.
In response to the comment relative to annual fee increases as a
result of the decrease in the number of licenses, the changes in this
final rule to stabilize fees should minimize large fee changes as a
result of decreases in licenses. See response to Comment A.1.
B. Other Comments
1. Amendments to Sec. 170.11
Comment. One commenter supported the proposal to amend Sec. 170.11
to conform to section 161w. of the Atomic Energy Act which would permit
charging 10 CFR Part 170 fees to not only power reactors operated by
the Tennessee Valley Authority and other Federal government entities,
but also to uranium enrichment facilities operated by the United States
Enrichment Corporation (USEC).
Response. The NRC has been assessing the USEC 10 CFR Part 170 fees
under the authority provided in 161w. of the Atomic Energy Act of 1954,
as amended (AEA). The NRC is amending Sec. 170.11 to conform its
regulations to this statutory provision.
2. Low-Level Waste Costs
Comment. One commenter was concerned that the proposed fee schedule
does not adequately reflect the long-term regulatory costs which are
associated with power reactors. The commenter believed that the NRC's
$7 million in annual costs for generic low-level waste work is low in
comparison to long-term costs associated with these activities. The
commenter indicated that it might be prudent to assume that the long-
term costs associated with low- [[Page 32221]] level waste sites will
eventually exceed the revenues immediately collected upon disposal.
Response. The amount of $7 million for NRC's low-level waste
activities is the amount identified in the FY 1995 budget to be
recovered through fees for these activities. If the NRC costs of these
activities increase over the long term and are included in the NRC
budget, the NRC is required by OBRA-90 to identify and to recover the
increased costs from its licensees in the year in which the costs are
budgeted. OBRA-90 does not permit the NRC to recover potential future
costs that are not included in the current FY 1995 budget.
3. Spent Fuel Storage
Comment. One commenter encouraged the NRC to ensure that any costs
associated with spent fuel storage and transportation, particularly the
costs associated with the review of the Department of Energy's (DOE)
multi-purpose canister program, are kept properly separated from the
costs for specific utility licensing actions. Because these activities
are funded from different sources, the commenter stated that NRC must
ensure that the cost burden for the DOE reviews is not reflected in
utility licensing fees. The commenter noted that in the FY 1995
proposed rule there is no explanation for maintaining the fees for
general licenses for storage of spent fuel at substantially higher
levels than the fee in 1992 ($43,000) or 1993 ($136,000). The commenter
questioned whether the fee charged to spent fuel storage licensees
includes amounts allocated for other activities.
Response. The costs associated with the review of the DOE's multi-
purpose canister program are costs related to the High-Level Waste
program which are appropriated from the High Level Waste Fund and
separated from specific utility licensing actions. Therefore, in
accordance with OBRA-90, the DOE review costs are not included in
utility licensing fees, but rather are recovered from the Nuclear Waste
Fund. Although the FY 1995 annual fee for spent storage licenses
($279,000) is higher than in FY 1992 ($43,000) or 1993 ($136,000), it
is lower than the fee assessed in FY 1994 ($365,170). The reasons for
the increases over FY 1992 and FY 1993 were explained in detail in the
final FY 1994 rule (59 FR 36902; July 20, 1994). To recap, first, the
budgeted amount necessary to regulate spent fuel facilities increased
to provide regulatory oversight for the increased number of facilities.
Additionally, as the licensing of these facilities was completed, the
amount of fees from 10 CFR part 170 necessarily decreased. This
resulted in an increased amount that must be recovered from annual fees
in 10 CFR part 171.
4. Annual Fees Should Be Prorated When a License is Downgraded
Comment. One commenter proposed that Sec. 171.17(b) be amended to
allow proration of annual fees for licenses that are downgraded during
the year.
Response. The NRC agrees with the commenter that some provision
should be made in the annual fee regulations for those instances where
a license is downgraded to a license category with a lower annual fee
during the fiscal year. Although the NRC currently has in place a
system to track applications for new licenses and terminations which
can be readily used for fee purposes, no similar system exists that
could easily track upgrades or downgrades of licenses. As a result,
Sec. 171.17 is amended to allow for proration of the annual fee for a
downgraded license upon request of the licensee. Such a request must be
filed with the NRC within 90 days from the effective date of the final
rule establishing the annual fees for which a proration is sought.
Absent extraordinary circumstances, any request for proration of the
annual fee for a downgraded license filed beyond that date will not be
considered.
If a timely proration request is filed, annual fees for licenses
downgraded after October 1 of a fiscal year will be prorated on the
basis of when the applications for downgrade are received by the NRC,
provided the licensee permanently ceased the stated activities during
the specified period. Annual fees for licenses for which applications
to downgrade are filed during the period October 1 through March 31 of
the fiscal year will be prorated as follows: (1) Licenses for which
applications have been filed to reduce the scope of the license from a
higher fee category(ies) to a lower fee category(ies) will be assessed
one-half the annual fee for the higher fee category(ies) and one-half
the annual fee for the lower fee category(ies), and, if applicable, the
full annual fee for fee categories not affected by the downgrade; and
(2) licenses with multiple fee categories for which applications have
been filed to downgrade by deleting a fee category will be assessed
one-half the annual fee for the fee category being deleted and the full
annual fee for the remaining categories. Licenses for which
applications for downgrade are filed on or after April 1 of the fiscal
year are assessed the full fee for that fiscal year.
5. Avoid Billing for Services Rendered One Year Prior to Billing Date
Comment. One commenter proposed that the NRC void any bill for
costs of regulatory services that were performed more than one year
prior to the invoice date. The commenter stated that this would result
in the NRC striving to issue invoices in a timely manner to assure
recovery of its budget authority and would not place the licensee in a
position of having to pay an unexpected and potentially large invoice.
Response. The NRC has not included this proposal in the final rule.
The NRC is required by the Federal Claims Collection Act of 1966 and
the Debt Collection Act of 1982 to pursue debts and claims owed to the
U.S. government. However, the NRC has made efforts to issue bills in a
more timely manner. During the past year, the NRC has implemented
procedures to bill for licensing reviews and inspections within 30 days
of the close of the billing quarter during which the review or
inspection occurred or was completed. Although there have been rare
cases where bills were not issued in a timely manner for licensing and
inspection activities, the NRC believes that the 30-day billing
procedures will help to minimize the number of such occurrences in the
future.
6. Reinstate Fee Ceiling for Topical Report Reviews
Comment. One commenter requested that the NRC reinstate a fee
ceiling in 10 CFR part 170 for topical report reviews because a fee
ceiling would encourage the submittal of topical reports, thus
contributing to the advance of the state-of-the-art in the nuclear
industry and the resultant improvement in nuclear plant safety. The
commenter stated that the current uncapped fee structure encourages
prolonged and unreasonably detailed technical reviews by NRC
contractors.
Response. The NRC indicated in the FY 1991 final fee rule that it
had decided to eliminate the ceiling for topical report reviews based
on the 100 percent recovery requirement and Congressional guidance that
each licensee or applicant pay the full costs of all identifiable
regulatory services received from the NRC. Further, the NRC's costs for
topical report reviews vary significantly depending on the particular
topical report reviewed. This makes it impractical to establish an
equitable fee ceiling or flat fee (56 FR 31478; July 10, 1991).
Recently, the Commission revisited this issue as part of its review of
fee policy required by EPA-92. The policy of assessing 10 CFR
[[Page 32222]] part 170 fees, without a ceiling, for the review and
approval of topical reports was reconfirmed. For these reasons, the NRC
is not establishing a fee ceiling for topical reports in this final
rule.
7. Comment
Several comments were received from uranium recovery licensees.
Commenters suggested (1) a tiered fee system that would result in full
fees for operating facilities and reduced fees for facilities in
shutdown or standby status; (2) a licensee review board be established
to review NRC fees annually; (3) the NRC establish standards for its
activities, such as a schedule for response intervals for processing
licensing actions; and (4) 10 CFR part 170 bills be itemized to show
hours spent, a description of the work performed, the names of
individuals who completed the work and the dates the work was
performed.
Response. In response to a petition for rulemaking from the
American Mining Congress (60 FR 20918), the NRC addressed each of these
comments in the Federal Register on April 28, 1995. While denying the
petition, the NRC noted that it would continue its current practice of
providing available backup data to support Part 170 licensing and
inspection billings upon request by the licensee or applicant.
8. Establish Reimbursable Agreements With Agreement States and Other
Government Agencies
Comment. Several commenters chose to comment on this change, even
though the NRC indicated in the proposed rule that the issue of
reimbursable agreements falls outside the scope of the proposed
rulemaking. The commenters indicated that such action by NRC will
affect the levels of fees to be paid by licensees. Those commenting on
this change were encouraged by the NRC's initiative in seeking a better
way to charge these expenses and supported the NRC's decision to
increase the use of reimbursable agreements to eliminate certain costs
that do not benefit NRC licensees. Most of the commenters on this
issue, however, encouraged the NRC to proceed immediately to negotiate
these reimbursable agreements and not wait until FY 1997 because NRC
licensees are currently paying for these costs. One commenter suggested
that, in the interest of properly and fairly allocating costs, this
program be expanded to cover more, if not all, of the costs of the
regulatory support to and oversight of Agreement States (about $20
million) rather than limit recovery under reimbursable agreement to
costs associated with training, travel and technical support provided
to Agreement States.
In addition, several commenters believe that the NRC should assess
the Environmental Protection Agency (EPA) for NRC work such as review
of regulations promulgated by EPA relating to radionuclide emission
standards. One commenter stated that costs to support certain
activities related to international treaties may best be covered by the
Department of State, the Department of Energy or the Agency for
International Development.
On April 5 and 6, 1995, the NRC hosted an Agreement State Managers
Workshop in Rockville, Maryland. At that meeting, the Agreement States
expressed strong opposition to the reimbursable agreement concept,
arguing that such agreements would have a negative impact on their
programs. The NRC has also received letters from Agreement States
expressing strong disagreement with the reimbursable program.
Response. The NRC indicated in the proposed rule (60 FR 14672;
March 20, 1995) that it planned to increase the use of reimbursable
agreements with Agreement States and Federal agencies and because this
change affected the budget and does not alter fee policies or methods,
it falls outside the scope of this rulemaking for FY 1995. It is,
however, a subject that has generated strong responses, both positive
and negative, on the part of licensees and Agreement States. As
indicated previously, this policy does not affect the issuance of this
FY 1995 rule and the NRC is proceeding to issue the FY 1995 final rule.
The reimbursable agreement issue will be addressed as a separate policy
issue in the future.
With respect to the interaction between the NRC and EPA on the
promulgation of regulations, the Independent Offices Appropriation Act
of 1952, as amended, precludes the NRC from charging fees to Federal
agencies for specific services rendered. While the NRC can assess
annual fees to Federal agencies holding NRC licenses, the EPA is not
considered a licensee of the NRC with respect to regulations
promulgated by EPA relating to radionuclide emission standards.
Further, NRC interactions with EPA are an integral part of NRC's
responsibilities under the Atomic Energy Act. Therefore, NRC must
include the costs of this work in its budget and cannot perform such
work under reimbursable agreements.
With respect to the NRC's international activities, the NRC budget
includes certain international activities that are not directly related
to NRC applicants or licensees. These activities are performed because
of their benefit to U.S. national interests. The NRC is required to
perform some of these activities by the Atomic Energy Act (AEA) and,
therefore, must budget for them. Over the past several years, the NRC
has considered various means to recover the costs for international
activities involving broad U.S. national interests, but has found no
viable, fair way to do so. Further, it would not be practical to assess
fees to foreign organizations, foreign governments, or to the State
Department to whom some of the support is provided. For example,
assessment of such fees might create foreign policy tensions that could
complicate U.S. goals such as foreign reactor safety and nuclear non-
proliferation. Until such time as legislation is enacted allowing the
NRC to exclude the cost of international activities from the fee base,
the cost of these activities must continue to be recovered from NRC
licensees. These costs will be recovered from the broadest base of NRC
licensees as described in the response to Comment A.1.
9. Fee Deferral Policy for Standard Plant and Early Site Reviews
Comment. One commenter urged the NRC to reestablish the NRC's
previous fee deferral policy for standard plant and early site reviews
in order to encourage the development of standardized designs and in
light of the NRC decision to issue designs to be certified through
rulemaking rather than by granting a license for the certified design.
Response. The Commission decided in its FY 1991 final fee rule that
the costs for standardized reactor design reviews, whether for domestic
or foreign applicants, should be assessed under 10 CFR part 170 to
those filing an application with the NRC for approval or certification
of a standardized design (56 FR 31478; July 10, 1991). Recently, the
Commission revisited this issue as part of its review of fee policy
required by EPA-92 and reconfirmed its FY 1991 decision. The NRC
continues to believe that the costs of these reviews should be assessed
to advanced reactor applicants. The NRC finds no compelling
justification for singling out these types of applications for special
treatment and shifting additional costs to operating power reactors or
other NRC licensees, and does not believe the points made by the
commenter are sufficient to change current policy. [[Page 32223]]
10. Assessing Fees to Design Certification Applicants for Costs
Following the Final Design Approval
Comment. Two commenters stated that the Commission should revisit
its policy decision to charge fees to design certification applicants
following the issuance by the NRC staff of a Final Design Approval
(FDA).
Response. The statement of considerations accompanying the proposed
rule said that the NRC would charge a vendor 10 CFR Part 170 fees for a
design certification to recover all the costs of certification except
the costs of any hearing that might be held under 10 CFR 52.51(b)
before an Atomic Safety and Licensing Board (60 FR 14673; March 20,
1995). These charges are required by existing rules. The only reason
the NRC mentioned these fees in the statement of considerations was to
reflect in a widely-read document a policy that NRC had articulated
fully only in letters to the vendor applicants in December 1994. The
letters were in response to inquiries from three vendors last summer.
The vendors, particularly ABB-Combustion Engineering Nuclear Systems
(ABB-CE), had argued that all the costs of certification should be
recovered through annual fees charged to the NRC's current power
reactor licensees. ABB-CE, which received an FDA last year for the
System 80+ and has applied for certification of the same design, wrote
extensive comments on what NRC said about certification fees in the
statement of considerations.2
\2\ Stone & Webster Engineering Corporation submitted brief
comments on this issue. Those comments match some of ABB-CE's.
---------------------------------------------------------------------------
Having considered ABB-CE's arguments, which were largely those ABB-
CE had made last summer, the NRC has decided not to change the existing
rules and policy on this issue. Although this whole topic is, strictly
speaking, not part of this rulemaking, the NRC considers this
rulemaking notice to be a useful vehicle for informing a larger public
in some detail of ABB-CE's arguments and our responses. NRC's
statements here are largely a repetition of arguments NRC made in the
letters to the vendors and in a February 24, 1995, letter to the Senate
Committee on Appropriations.
Comment. ABB-CE charges that ``NRC is proposing to change its fee
rules in the middle of the process to the detriment of certification
applicants. * * * '' (Comments at 10)
Response. Section 170.21 of the Commission's regulations has long
explicitly listed standard design ``certifications'' among the
regulatory actions for which ``full cost'' will be recovered through
fees charged to applicants. See 10 CFR 170.21 (1994), Schedule of
Facility Fees, heading B, ``Standard Reference Design Review''. This
policy has been the law since Part 52 was first promulgated. (See 54 FR
15372, 15399; April 18, 1989.) Even when, in the past, 10 CFR part 170
called for deferring payment of fees until a utility referenced the
certified design, 10 CFR part 170 clearly said that the vendor would
have to pay the ``full cost of review for a standardized design
approval or certification.'' 10 CFR 170.12(e)(2)(1) (emphasis added).
Comment. ABB-CE's most important argument for changing long-
standing policy is that, according to ABB-CE, there is no benefit to
ABB-CE in certification, except perhaps an ``indirect'' benefit of
making the certified design attractive to U.S. utilities. (Comments at
4) ABB-CE says, ``With the issuance of NRC's FDA in July 1994, * * *
System 80+ constitutes a complete and approved standardized design
which, without design certification rulemaking, has been accepted for
bidding in the global marketplace.'' (Comments at 2) ABB-CE also argues
that the nuclear utilities and their ratepayers and stockholders are
the ``direct'' beneficiaries of certification, because it provides them
with greatly reduced licensing risk, and because it contributes to the
``continued viability * * * of an important energy option'' and to the
maintenance of the nuclear servicing-supply sector infrastructure.
(Comments at 4)
Response. While the utilities may benefit from certifications, the
vendor is more likely to benefit than is any given utility. The NRC
knows neither whether, nor how many, applicants for combined
construction permits and operating licenses (COLs) will benefit from a
given certification. Certainly, not all current power reactor licensees
will reference every certified design, and so current licensees will
not benefit from every certification. If the design is referenced, the
vendor will benefit directly, but most utilities will not. The NRC
believes that had ABB-CE not had a reasonable expectation of deriving
benefits from the certification, ABB-CE would not have applied for it.
Comment. ABB-CE points out that the vendor applicant does not
become a ``holder'' of the design certification. In fact, a vendor
other than the one that applied for certification can, as a matter of
law, supply the certified design to a COL applicant. ABB-CE believes
that this situation is incompatible with the notion that the original
vendor is the primary beneficiary of the certification.
Response. The NRC agrees that the design certification applicant
does not become a ``holder'' of the design certification. However,
several things will make it difficult for a vendor other than the
certification applicant to supply the design to a utility. First,
proprietary information is protected during the certification
proceeding (see 10 CFR 52.51(c)). Second, any vendor that supplies a
design to an applicant for a COL must be prepared to provide the NRC
with a large amount of design information not contained in the rule
certifying the design. This information includes the detailed design of
site-specific portions of the plant, and ``information normally
contained in certain procurement specifications and construction and
installation specifications'' (see 10 CFR 52.63(c)). Third, any vendor
supplying a COL applicant a certified design which another vendor
brought to certification must pay part of any deferred fees the
original vendor owes (see 10 CFR 170.12(e)(2)(i)). Fourth and last, the
original vendor's superior knowledge of the design will give that
vendor a great advantage over competitors.
Comment. ABB-CE also argues that 10 CFR Part 170 fees should not be
charged for a certification rulemaking because such a rulemaking is
``generic.'' ABB-CE points out that the Commission has said that it
will not charge 10 CFR part 170 fees for ``generic rulemaking and
guidance (e.g., 10 CFR part 52 and Regulatory Guides) for standard
plants. * * *'' (56 FR 31478; July 10, 1991.) ``* * * NRC has used the
certification,'' ABB-CE says, ``* * * to resolve broadbased policy
issues that otherwise would have required independent public rulemaking
proceedings.'' (Comments at 7) ABB-CE goes so far as to say that
``nearly all of the procedural and substantive provisions in the
proposed rule for System 80+ are similar or identical to those for the
ABWR.'' (Comments at 6)
Response. The proposed rules which would certify the System 80+ and
the ABWR are no more generic than licenses certifying the same designs
would have been.3 The resolutions of policy issues in the proposed
rules are resolutions specific to those two designs. Moreover, the two
proposed rules are quite different. It is important to understand that
the few pages of the [[Page 32224]] proposed rules which appeared in
the Federal Register are only small parts of the rules. Both will
incorporate by reference ``Tiers'' 1 and 2 of the complete designs.
Thus the proposed rules are substantively as different as the designs
themselves. Even the portions published in the Federal Register have no
legal force with respect to other designs.
\3\ It might have been difficult, if not impossible, for the
System 80+ to be certified by license. Section 103d of the Atomic
Energy Act says in part, ``No license may be issued to an alien or
any corporation or other entity if the Commission knows or has
reason to believe it is owned, controlled, or dominated by an alien,
a foreign corporation, or a foreign government.''
---------------------------------------------------------------------------
The NRC did state that 10 CFR part 170 fees would not be charged
for ``generic rulemakings (e.g., 10 CFR part 52) on standard plants.''
However, as the parenthetical reference to 10 CFR part 52 shows, the
NRC was using the phrase ``generic rulemaking'' to refer to rulemaking
which, like 10 CFR part 52 itself, applies to all, or at least many,
designs.
Comment. ABB-CE asserts that the whole of a design certification
rulemaking should be regarded as a ``contested hearing'' and thus have
no 10 CFR part 170 fees charged in connection with it. ABB-CE's
argument is, first, that under the Administrative Procedure Act (APA),
notice and comment rulemaking constitutes a ``hearing'', and second,
that the rulemaking surely will be ``contested'', because there will,
in all likelihood, be filed ``material comments reasonably opposing
aspects of the proposed rule.'' (Comments at 9)
Response. It has long been the policy of the NRC not to charge 10
CFR part 170 fees for ``contested'' hearings, namely those adjudicatory
hearings which are not mandated by law. The costs of such hearings are
recovered through annual fees imposed under 10 CFR part 171. The NRC
agrees that applicants for design certification should not be charged
10 CFR part 170 fees for any hearings held before an Atomic Safety and
Licensing Board under 10 CFR 52.51(b), which offers an opportunity for
a hearing on a proposed certification.
However, ABB-CE's position that the whole rulemaking is a
``contested hearing'' is neither required by law nor consistent with
the meaning usually attributed to the phrase ``contested hearing'' in
discussions of NRC matters. The phrase refers to those hearings, or
parts of hearings, which are held under subpart G or subpart L of 10
CFR part 2, but which would not take place unless some party outside
the agency asked for them. The Supreme Court case cited by ABB-CE for
the proposition that every rulemaking is a ``contested hearing'', US v.
Florida East Coast Railway, 410 US 224 (1973), says only that notice
and comment rulemaking will, in certain circumstances, satisfy a
statute's requirement for a rulemaking hearing. The Court's decision
does not say that every rulemaking is a hearing.
Comment. ABB-CE argues that charging vendors for the costs of
certification is inconsistent with the NRC's recent decision to recover
the costs of confirmatory research ``related to the design'' from the
utilities, under 10 CFR part 171. If NRC recovers those costs from the
utilities, then, argues ABB-CE, NRC should recover all the costs of
certification from the utilities, because those costs too are ``related
to the design.''
Response. ABB-CE misconstrues the policy. Its aim is to charge
vendors applying for FDAs and certifications of standard designs for
only the research which is necessary to support the issuance of the FDA
or certification. Research initiated to address generic issues, such as
human factors or code development, would be charged to the utilities
under 10 CFR part 171, even if it had a bearing on the review of a
standard design. (See 60 FR 14673; March 20, 1995.) There is in this
nothing inconsistent with the existing regulations on certification
fees. In both cases, the NRC is charging the vendors for what must be
done before issuance of the FDA or certification.
III. Final Action
The NRC is amending its licensing, inspection, and annual fees to
recover approximately 100 percent of its FY 1995 budget authority,
including the budget authority for its Office of the Inspector General,
less the appropriations received from the NWF. For FY 1995, the NRC's
budget authority is $525.6 million of which approximately $22.0 million
has been appropriated from the NWF. Therefore, OBRA-90 requires that
the NRC collect approximately $503.6 million in FY 1995 through 10 CFR
part 170 licensing and inspection fees and 10 CFR part 171 annual fees.
This amount to be recovered for FY 1995 is about $9.4 million less than
the total amount to be recovered for FY 1994 and $15.3 million less
when compared to the amount to be recovered for FY 1993. The NRC
estimates that approximately $141.1 million will be recovered in FY
1995 from the fees assessed under 10 CFR part 170. The remaining $362.5
million will be recovered through the 10 CFR part 171 annual fees
established for FY 1995.
Recognizing that OBRA-90 may have resulted in certain fees that
were unfair or inequitable, Congress in Section 2903(c), of the Energy
Policy Act of 1992 (EPA-92), directed the NRC to review its annual fee
policy, solicit public comment on the need for changes to this policy,
and recommend to the Congress any changes to existing law needed to
prevent placing unfair burdens on NRC licensees. The NRC reviewed more
than 500 public comments submitted in response to the request for
comment published in the Federal Register on April 19, 1993 (58 FR
21116), and sent its report to Congress on February 23, 1994. A copy of
this report has been placed in the Public Document Room. This report
concluded that modifications to existing statutes governing NRC fees
are necessary to alleviate licensees' major concerns about fairness and
equity and to reduce the NRC administrative burden resulting from
assessing fees. The report recommended enactment of legislation that
would reduce the amount to be recovered from fees from 100 percent of
the NRC budget to approximately 90 percent of the budget and eliminate
the requirement that NRC assess 10 CFR part 170 fees.
In view of the fact that legislation has not been enacted to
address licensees' fairness and equity concerns and the concern about
the additional workload generated by 100 percent fee recovery, the
Commission has reexamined its existing fee policies to determine
whether they can be made more equitable. This reexamination was
undertaken with the goal of addressing, within the limitations of the
existing laws governing NRC fees, the concerns identified in the report
to Congress and improving other features of the NRC fee program. Based
on this reexamination, the NRC is amending 10 CFR parts 170 and 171 to
partially alleviate the identified concerns and improve the process of
collecting NRC fees.
These final changes are summarized as follows and detailed in the
following sections.
1. The method for allocating the budgeted costs that cause fairness
and equity concerns is changed. Approximately $56 million of NRC costs
either do not directly benefit NRC licensees or provide benefits to
non-NRC licensees. These costs will be treated similar to overhead and
distributed to the broadest base of NRC licensees based on the percent
of the budget for each class. As a result, power reactors will pay a
greater percentage of these costs.
2. The selected materials inspection fees (i.e., flat fees and
others with reasonable averages), hereinafter referred to as ``flat''
inspection fees in 10 CFR 170.31, are eliminated and the inspection
costs are included with the annual materials fees in 10 CFR 171.16(d).
These actions will streamline [[Page 32225]] the license fee process
and provide more predictable fees.
3. The methodology for calculating the professional hourly rate is
changed to better align the budgeted costs with the major classes of
licensees. Two professional staff-hour rates are established instead of
a single rate.
4. The methodology for calculating annual fees for power reactors,
fuel facilities and uranium recovery licensees is changed to make
annual fees more closely reflect the cost of providing regulatory
services to the classes and subclasses of licensees and to improve
efficiency.
5. NRC small entity and lower-tier size standards are modified for
annual fee purposes.
6. The proration provision in 10 CFR 171 has been amended to allow
proration of annual fees when materials licenses are downgraded during
the year.
As a result of the reduced budget amount to be recovered for FY
1995, increased 10 CFR part 170 fee collections from power reactors,
and these final changes, the annual fees for a large majority of the
licensees have been reduced. The following provides illustrative
examples of the changes in the annual fees.
------------------------------------------------------------------------
Annual fee
Class of licensees -------------------------
FY 1994 FY 1995
------------------------------------------------------------------------
Power Reactors................................ $3,078,000 $2,936,000
Nonpower Reactors............................. 62,200 56,500
High Enriched Fuel Facility................... 3,231,770 2,569,000
Low Enriched Fuel Facility.................... 1,484,770 1,261,000
UF6 Conversion................................ 1,179,770 639,200
Uranium Mills................................. 74,670 60,900
Typical materials licenses
Radiographers................................. 19,170 13,900
Well Loggers.................................. 12,870 8,100
Gauge Users................................... 2,470 1,700
Broad Scope Medical........................... 32,570 23,200
------------------------------------------------------------------------
To help stabilize fees, beginning in FY 1996, the NRC will adjust
the annual fees only by the percent change in NRC's total budget. The
annual fees in this final FY 1995 rule will be used as a base, and the
percentage change (plus or minus) in the NRC total FY 1995 budget will
be applied to all annual fees for the next four years (FY 1996-FY 1998
and FY 1999 if OBRA-90 is extended) unless there is a substantial
change in the total NRC budget or the magnitude of the budget allocated
to a specific class of licensees, in which case the annual fee base
would be reestablished. The decision on whether to establish a new
baseline will be made each year during budget formulation. For example,
if the total NRC budget is reduced by 3 percent and the number of
licenses and the amount estimated to be recovered under 10 CFR part 170
remains constant in a given fiscal year, then all annual fees would be
reduced by approximately 3 percent.
The NRC contemplates that any fees to be collected as a result of
this final rule will be assessed on an expedited basis to ensure
collection of the required fees by September 30, 1995, as stipulated in
OBRA-90. Therefore, as in FYs 1991-1994 the fees will become effective
30 days after publication of the final rule in the Federal Register.
The NRC will send a bill for the amount of the annual fee to the
licensee or certificate, registration, or approval holder upon
publication of the final rule. Payment will be due on the effective
date of the FY 1995 rule.
The NRC will continue the proration of annual fees, established in
FY 1994, in accordance with the provisions of Sec. 171.17 for new
licensees and requests for termination. The annual fees for both
reactor and material licensees are prorated based on (1) The date
applications are filed during the FY to terminate a license or obtain a
possession-only license (POL) and (2) the date new licenses are issued
during the FY.
A. Amendments to 10 CFR part 170: Fees for Facilities, Materials,
Import and Export Licenses, and Other Regulatory Services
Four amendments have been made to part 170. These amendments do not
change the underlying basis for the regulation--that fees be assessed
to applicants, persons, and licensees for specific identifiable
services rendered. The amendments also comply with the guidance in the
Conference Committee Report on OBRA-90 that fees assessed under the
Independent Offices Appropriation Act (IOAA) recover the full cost to
the NRC of identifiable regulatory services each applicant or licensee
receives.
First, Sec. 170.11 is amended to conform it to section 161w. of the
Atomic Energy Act of 1954, as amended (AEA). That section of the AEA
currently allows the Commission to charge part 170 fees to power
reactors operated by the Tennessee Valley Authority or other Federal
government entities and to uranium enrichment facilities operated by
the United States Enrichment Corporation, as these reactors and
facilities are licensed or certified by the NRC. In all other cases,
the NRC is prevented from charging part 170 fees to Federal agencies
for services rendered, due to a prohibition on such charges contained
in the Independent Offices Appropriation Act, 31 U.S.C. 9701.
Second, the current method of calculating the 10 CFR part 170
professional hourly rate is revised. Currently, there is one
professional hourly rate established in Sec. 170.20, which is used to
determine the fees assessed by the NRC. This professional hourly rate
was $133 per hour for FY 1994. The NRC has established two professional
hourly rates for FY 1995, which will be used to determine the part 170
fees. The NRC has established a rate of $123 per hour ($214,765 per
direct FTE) for the reactor program. This rate is applicable to those
activities covered by 10 CFR 170.21 of the fee regulations. A second
rate of $116 per hour ($203,096 per direct FTE) is established for the
nuclear materials and nuclear waste program. This rate is applicable to
those activities covered by 10 CFR 170.31 of the fee regulations. These
rates are based on the FY 1995 direct FTEs and that portion of the FY
1995 budget that does not constitute direct program support
(contractual services costs) and is not recovered through the
appropriation from the NWF.
The two rates are based on cost center concepts that are now being
used for NRC budgeting purposes. In implementing cost center concepts,
all budgeted resources for each cost center are assigned to that center
for analysis and license fee purposes to the extent they can be
separately distinguished. These costs include all salaries and
benefits, contract support, and travel that are required for each cost
center activity. Additionally, all resources for the Advisory Committee
on Reactor Safeguards (ACRS), the Advisory Committee on Nuclear Waste
(ACNW), the Office of Investigation (OI), the Office of Enforcement
(OE), and all program direct resources for the Office of the General
Counsel (OGC) are assigned to cost centers. The NRC took a first step
in this direction in FY 1994 when it directly assigned additional
effort to the reactor and materials programs for OI, OE, ACRS and ACNW.
Commenters supported this change in FY 1994 indicating that such
assignment better defines the beneficiaries of certain regulatory
activities and more equitably allocates the fees for services provided
(59 FR 36897; July 20, 1994). The cost center concept is discussed more
fully in [[Page 32226]] Section IV--Section-by-Section Analysis.
Third, the current part 170 licensing and inspection fees in
Secs. 170.21 and 170.31 for applicants and licensees are revised to
reflect both the revised hourly rates and the results of the review
required by the Chief Financial Officers (CFO) Act. To comply with the
requirements of the CFO Act, the NRC has evaluated historical
professional staff hours used to process a licensing action (new
license, renewal, and amendment) for those materials licensees whose
fees are based on the average cost method (flat fees).
Based on evaluation of the historical data related to the average
number of professional staff hours needed to complete materials
licensing actions, the NRC has increased the fees in some categories
and decreased the fees in others to reflect the costs incurred in
completing the licensing actions. Thus, the revised average
professional staff hours reflect the changes in the NRC licensing
review program that have occurred since FY 1993. The revised licensing
fees are based on the new average professional staff hours needed to
process the licensing actions multiplied by the nuclear materials
professional hourly rate for FY 1995 of $116 per hour. The data for the
average number of professional staff hours needed to complete licensing
actions were last updated in FY 1993 (58 FR 38666; July 20, 1993). For
new licenses and amendments, the licensing fees for FY 1995 are reduced
in approximately 50 percent of the cases, while the fees for renewals
increase in over 70 percent of the cases.
Fourth, the NRC is streamlining the fee program and improving the
predictability of fees by eliminating the materials ``flat'' inspection
fees in Sec. 170.31 and including the cost of the inspections in 10 CFR
part 171. Eliminating the 10 CFR part 170 materials ``flat'' fees
recognizes that the ``regulatory service'' to licensees, referred to in
OBRA-90, comprises the total regulatory activities that NRC determines
are needed to regulate a class of licensees. These regulatory services
include not only inspections, but also research, rulemaking, orders,
enforcement actions, responses to allegations, incident investigations,
and other activities necessary to regulate classes of licensees. This
action does not result in any net fee increases for affected licensees
and will provide those licensees with greater fee predictability, a
frequent request made in licensees' comments on past fee rules. The
materials annual fees, which include the cost of inspections, become
effective for FY 1995, and those materials licensees who paid a
``flat'' 10 CFR part 170 fee for inspections conducted in FY 1995 will
receive a credit for those payments towards the FY 1995 annual fee
assessed under 10 CFR part 171. Because there is no annual fee for
licensees operating under reciprocity in non-Agreement States, the
reciprocity inspection fee has been combined with the application fee.
In summary, the NRC is (1) establishing two 10 CFR part 170 hourly
rates; (2) revising the licensing fees assessed under 10 CFR part 170
in order to comply with the CFO Act's requirement that fees be revised
to reflect the cost to the agency of providing the service; and (3)
eliminating the materials ``flat'' inspection fees in Sec. 170.31 and
including the costs of inspections with the materials annual fees in
Sec. 171.16(d), or with the reciprocity application fee in Sec. 170.31,
fee Category 16.
B. Amendments to 10 CFR Part 171: Annual Fees for Reactor Operating
Licenses, and Fuel Cycle Licenses and Materials Licenses, Including
Holders of Certificates of Compliance, Registrations, and Quality
Assurance Program Approvals and Government Agencies Licensed by NRC
Ten amendments have been made to 10 CFR part 171. First, the NRC is
modifying its method for recovering certain budgeted costs. The NRC's
February 23, 1994, report to Congress in response to EPA-92 identified
fairness and equity concerns regarding the fees charged to recover the
cost of certain NRC activities. Many licensees believed it was unfair
to charge them fees for activities and policies undertaken by the NRC
that did not benefit them and were not requested by them. The NRC is
modifying its current policies for allocating the budgeted costs for
these and other activities that cause fairness and equity concerns,
including international activities, the nonprofit educational
exemption, the 10 CFR part 170 statutory exemption for Federal
agencies, the small entity annual fee reduction resulting from
implementing the Regulatory Flexibility Act, certain Site
Decommissioning Management Program (SDMP), generic decommissioning and
reclamation activities, and regulatory activities that support both NRC
and Agreement State licensees. The budgeted costs of approximately $56
million for these activities have been allocated to the broadest base
of NRC licensees because the activities are necessary for the NRC to
carry out its responsibilities but, in most instances, go beyond the
regulation of those licensees or applicants that pay fees. Thus, the
NRC is allocating the approximately $56 million in fees for activities
that raise fairness and equity concerns to the broadest base of NRC
licensees, based on the budgeted dollars for the class of licensees. By
allocating the costs in this way, the entire population of NRC
licensees pay the costs. The allocation is based on the amount of the
budget directly attributable to a class of licensees. This results in
operating power reactors paying approximately 89 percent of the costs
of the activities in question with other classes of licensees paying
their respective share of these costs as follows: 3 percent to fuel
facilities, 5 percent to materials licensees, and 1 percent to each of
the spent fuel, uranium recovery and transportation classes of
licensees.
Second, 10 CFR 171.13 is amended to provide that the NRC will
publish the proposed rule in the Federal Register as early as is
practicable but no later than the third quarter of the fiscal year.
Currently, the regulations provide for issuance of the proposed rule
during the first quarter of the fiscal year.
Third, Secs. 171.15 and 171.16 are amended to revise the annual
fees for FY 1995 to recover approximately 100 percent of the FY 1995
budget authority, less fees collected under 10 CFR part 170 and funds
appropriated from the NWF.
Fourth, the annual fees for operating power reactors in
Sec. 171.15(d) are revised to reflect a single uniform annual fee. The
NRC is streamlining the fee program by assessing one uniform annual fee
for all operating power reactors.
Fifth, as discussed earlier, the annual fees for materials licenses
in Sec. 171.16(d) include the budgeted costs for certain materials
inspections which were previously recovered under 10 CFR 170.31.
Sixth, the NRC is refining the method for calculating the annual
fees for fuel facilities and uranium recovery facilities. The NRC
indicated in its final FY 1994 fee rule that given the questions raised
at that time by B&W Fuel Company, General Atomics, and other fuel
facilities, it would reexamine the fuel facility subclass
categorizations, and include any restructuring resulting from this
reexamination in the FY 1995 proposed rule for notice and comment (59
FR 36901; July 20, 1994). The NRC's revised methodologies for
determining annual fees for fuel facility and uranium recovery
licensees, described in the proposed rule, are based on this
reexamination. These revised methodologies have been used to
[[Page 32227]] determine the FY 1995 annual fees for both fuel facility
and uranium recovery licensees. The use of the revised methodologies
results in an annual fee that more accurately reflects the cost of
providing regulatory services to each fuel facility and uranium
recovery licensee. The revised methodologies are explained in more
detail in Section IV--Section-by-Section Analysis.
Seventh, the NRC is modifying the lower-tier size standard for
those licensees that qualify as a small entity under the NRC's size
standards. On April 7, 1994 (59 FR 16513), the Small Business
Administration (SBA) issued a final rule changing its size standards.
The SBA adjusted its receipts-based size standard levels to mitigate
the effects of inflation from 1984 to 1994. On April 11, 1995 (60 FR
18344), the NRC published a final rule amending the NRC's size
standards. The NRC adjusted its receipts-based size standards from $3.5
million to $5 million to accommodate inflation and to conform to the
SBA final rule. The NRC also eliminated the separate $1 million size
standard for private practice physicians and applied the receipts-based
size standard of $5 million to this class of licensees. This mirrors
the revised SBA standard of $5 million for medical practitioners. The
NRC also established 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 applies to the types of
manufacturing industries that hold an NRC license.
The NRC has used the revised standards in the final FY 1995 fee
rule. The small entity fee categories in Sec. 171.16(c) of this final
fee rule have been modified to reflect the changes in the NRC's size
standards. The existing maximum small entity annual fee of $1800 is
continued for all small entities except those defined as lower-tier
small entities in this rule. The existing lower-tier small entity fee
of $400 will be assessed for those manufacturing industries and
educational institutions not State or publicly supported with less than
35 employees, small governmental jurisdictions with a population of
less than 20,000, and non-manufacturing entities with gross receipts of
less than $350,000, a higher threshold than the current lower-tier
level of $250,000 in gross receipts.
Eighth, Footnote 1 of 10 CFR 171.16(d) is amended to provide for a
waiver of the FY 1995 annual fees for those materials licensees, and
holders of certificates, registrations, and approvals who either filed
for termination of their licenses or approvals or filed for possession
only/storage licenses prior to October 1, 1994, and permanently ceased
licensed activities entirely by September 30, 1994. All other licensees
and approval holders who held a license or approval on October 1, 1994,
are subject to FY 1995 annual fees. This change is in recognition of
the fact that since the final FY 1994 rule was published in July 1994,
licensees have continued to file requests for termination of their
licenses or certificates with the NRC. Other licensees have either
called or written to the NRC since the FY 1994 final rule became
effective requesting further clarification and information concerning
the annual fees assessed. The NRC is responding to these requests as
quickly as possible. However, the NRC was unable to respond and take
action on all of the requests before the end of the fiscal year on
September 30, 1994. Similar situations existed after the FY 1991, FY
1992, and FY 1993 rules were published, and in those cases, NRC
provided an exemption from the requirement that the annual fee is
waived only when a license is terminated before October 1 of each
fiscal year.
Ninth, Sec. 171.17 is amended to add a proration provision for
materials licenses that are downgraded during the year to a lower fee
category. This provision would permit those materials licensees who
filed applications to downgrade their licenses to a lower fee category
during the period October 1 through March 31 of a fiscal year to pay
reduced annual fees.
Tenth, Sec. 171.19 is amended to credit the quarterly partial
annual fee payments and ``flat'' inspection fee payments for FY 1995
inspections already made by certain licensees in FY 1995 either toward
their total annual fee to be assessed or to make refunds, if necessary.
The amounts to be collected through annual fees in the amendments
to 10 CFR part 171 are based on the two revised professional hourly
rates discussed previously in the summary of the changes to 10 CFR part
170. The amendments to 10 CFR part 171 do not change the underlying
basis for 10 CFR part 171; that is, charging a class of licensees for
NRC costs attributable to that class of licensees. The changes are
consistent with the Congressional guidance in the Conference Committee
Report on OBRA-90, which states that the ``conferees contemplate that
the NRC will continue to allocate generic costs that are attributable
to a given class of licensees to such class'' and the ``conferees
intend that the NRC assess the annual charge under the principle that
licensees who require the greatest expenditures of the agency's
resources should pay the greatest annual fee'' (136 Cong. Rec. at
H12692-93). For those NRC costs not attributable to a class of
licensees, the amendments to 10 CFR part 171 follow the conferees'
guidance which states that ``the Commission should assess the charges
for these costs as broadly as practicable in order to minimize the
burden for these costs on any licensee or class of licensees * * *''
(136 Cong. Rec. at H12692-3).
C. FY 1995 Budgeted Costs
The FY 1995 budgeted costs, by major activity, that will be
recovered through 10 CFR parts 170 and 171 fees are shown in Table I.
Table I.--Recovery of NRC's FY 1995 Budget Authority
[Dollars in millions]
------------------------------------------------------------------------
Estimated
Recovery method amount
------------------------------------------------------------------------
Nuclear waste fund......................................... $22.0
Part 170 (license and inspection fees)..................... 141.1
Other receipts............................................. .1
Part 171 (annual fees):
Power Reactors........................................... 262.2
Nonpower Reactors........................................ .3
Fuel Facilities.......................................... 10.1
Spent Fuel Storage....................................... 1.6
Uranium Recovery......................................... 1.8
Transportation........................................... 4.2
Material Users........................................... \1\ 24.7
Rare Earth Facilities.................................... .1
------------
Subtotal Part 171...................................... $305.0
Costs remaining to be recovered not identified above....... 57.4
------------
Total.................................................. $525.6
------------------------------------------------------------------------
\1\ Includes $5.8 million that will not be recovered from small
materials licensees because of the reduced small entity fees.
In addition to the $57.4 million remaining to be recovered in Table
I, approximately $5.8 million must be collected as a result of
continuing the $1,800 maximum fee for small entities and the lower-tier
small entity fee of $400 for certain licensees. The composition of the
$63.2 million is as follows:
Table II.--Activities To Be Recovered Through Assessment of a Surcharge
------------------------------------------------------------------------
Dollars in
Activities millions
------------------------------------------------------------------------
Federal Agency Exemption................................... $1.6
Nonprofit Educational Exemption............................ 6.1
International Activities................................... 10.5
Small Entity Subsidy....................................... 5.8
[[Page 32228]]
Agreement State Oversight.................................. 6.2
Regulatory Support to Agreement States..................... 14.2
Site Decommissioning Management Plan....................... 6.2
Generic Decommissioning and Reclamation.................... 5.6
Generic Low Level Waste (LLW).............................. 7.0
------------
Total.................................................. $63.2
------------------------------------------------------------------------
The NRC is continuing the existing policy for recovering the $7
million for generic LLW activities from licensees that generate
significant LLW. The revised method of allocation, described in detail
in the FY 1993 final rule (58 FR 38669; July 20, 1994) allocates the
LLW costs between two groups: large generators (power reactors and
large fuel facilities) and small generators (all other LLW-producing
licensees). The remaining $56.2 million is distributed to virtually all
classes of licensees based on the percentage of the total budget
directly allocated to each class. The resulting allocations of the
$63.2 million are as follows:
$55.2 million to operating power reactors;
$2.2 million to fuel facilities;
$.6 million to spent fuel storage licensees;
$.6 million to transportation licensees;
$.6 million to uranium recovery facilities; and
$4.0 million to other materials licensees.
IV. Section-by-Section Analysis
The following analysis of those sections that are amended by this
final rule provides additional explanatory information. All references
are to Title 10, Chapter I, U.S. Code of Federal Regulations.
Part 170
Section 170.11 Exemptions
This section is amended to conform the fee regulations to section
161 w. of the Atomic Energy Act of 1954, as amended (AEA). That section
of the AEA currently allows the Commission to charge part 170 fees to
power reactors operated by the Tennessee Valley Authority or other
Federal government entities and to uranium enrichment facilities
operated by the United States Enrichment Corporation (USEC), as these
reactors and facilities are licensed or certified by the NRC. The NRC
has been assessing the USEC 10 CFR part 170 fees under the authority
provided in section 161w. of the AEA. In this final rule, the NRC is
now amending Sec. 170.11 to conform its regulations to this statutory
provision. In all other cases, the NRC is prevented from charging 10
CFR part 170 fees to Federal agencies for services rendered, due to a
prohibition on such charges contained in the Independent Offices
Appropriation Act, 31 U.S.C. 9701.
Section 170.20 Average Cost Per Professional Staff Hour
This section is amended to establish two professional staff-hour
rates based on FY 1995 budgeted costs--one for the reactor program and
one for the nuclear material and nuclear waste program. Accordingly,
the NRC reactor professional staff-hour rate for FY 1995 for all
activities that are based on full cost under Sec. 170.21 is $123 per
hour, or $214,765 per direct FTE. The NRC nuclear material and nuclear
waste professional staff-hour rate for all materials activities that
are based on full cost under Sec. 170.31 is $116 per hour, or $203,096
per direct FTE. The rates are based on the FY 1995 direct FTEs and NRC
budgeted costs that are not recovered through the appropriation from
the NWF. The NRC has used cost center concepts in reallocating certain
costs to the reactor and materials programs in order to more closely
align the budgeted costs with specific classes of licensees. The method
used to determine the two professional hourly rates is as follows:
1. The direct program FTE levels are identified for both the
reactor program and the nuclear material and waste program.
2. Direct contract support, which is the use of contract or other
services in support of the line organization's direct program, is
excluded from the calculation of the hourly rate because these support
costs are charged directly through the various categories of fees.
3. All other direct program costs (i.e., Salaries and Benefits,
Travel) represent ``in-house'' costs and are to be collected by
dividing them uniformly by the total number of direct FTEs for the
program. In addition, Salary and Benefits plus contracts for General
and Administrative Support are allocated to each program based on that
program's salary and benefits. This method results in the following
costs, to be included in the hourly rates.
Table III.--FY 1995 Budget Authority To Be Included in Hourly Rates
[Dollars in millions]
------------------------------------------------------------------------
Reactor Materials
Salary and benefits program program
------------------------------------------------------------------------
Program........................................... $148.5 $43.5
Allocated Agency Management and Support........... 39.9 11.7
---------------------
Subtotal...................................... 188.4 55.2
---------------------
General and Administrative Support (G&A):
Program Travel and Other Support................ 13.3 2.7
Allocated Agency Management and Support......... 73.6 21.6
---------------------
Subtotal...................................... 86.9 24.3
---------------------
Less offsetting receipts........................ .1 .........
---------------------
Total Budget Included in Hourly Rate.......... 275.2 79.5
=====================
Program Direct FTEs............................... 1,281.6 391.6
Rate per Direct FTE............................... 214,765 203,096
Professional Hourly Rate.......................... 123 116
------------------------------------------------------------------------
Dividing the $275.2 million budget for the reactor program by the
number of reactor program direct FTEs (1281.6) results in a rate for
the reactor program of $214,765 per FTE for FY 1995. Dividing the $79.5
million budget for the nuclear materials and nuclear waste program by
the number of program direct FTEs (391.6) results in a rate of $203,096
per FTE for FY 1995. The Direct FTE Hourly Rate for the reactor program
is $123 per hour (rounded to the nearest whole dollar). This rate is
calculated by dividing the cost per direct FTEs ($214,765) by the
number of productive hours in one year (1744 hours) as indicated in OMB
Circular A-76, ``Performance of Commercial Activities.'' The Direct FTE
Hourly Rate for the materials program is $116 per hour (rounded to the
nearest whole dollar). This rate is calculated by dividing the cost per
direct FTEs ($203,096) by the number of productive hours in one year
(1744 hours). The two professional rates of $123 per hour and $116 per
hour are lower than the FY 1994 rate of $133 per hour because the
budget has been reduced and cost center concepts have been implemented
with the effect that more direct FTEs have been charged to the
programs. [[Page 32229]]
Section 170.21 Schedule of Fees for Production and Utilization
Facilities, Review of Standard Reference Design Approvals, Special
Projects, Inspections and Import and Export Licenses
The licensing and inspection fees in this section, which are based
on full-cost recovery, are revised to reflect the FY 1995 budgeted
costs and to recover costs incurred by the NRC in providing licensing
and inspection services to identifiable recipients. The fees assessed
for services provided under the schedule are based on the professional
hourly rate, as shown in Sec. 170.20, for the reactor program and any
direct program support (contractual services) costs expended by the
NRC. Any professional hours expended on or after the effective date of
this final rule will be assessed at the FY 1995 hourly rate for the
reactor program as shown in Sec. 170.20. Although the average amounts
of time to review import and export licensing applications have not
changed, the fees in Sec. 170.21, facility Category K, have decreased
from FY 1994 as a result of the decrease in the hourly rate.
For those applications currently on file and pending completion,
footnote 2 of Sec. 170.21 is revised to provide that the professional
hours expended up to the effective date of the final rule will be
assessed at the professional rates in effect at the time the service
was rendered. For topical report applications currently on file which
are still pending completion of the review and for which review costs
have reached the applicable fee ceiling established by the July 2, 1990
rule, the costs incurred after any applicable ceiling was reached
through August 8, 1991, will not be billed to the applicant. Any
professional hours expended for the review of topical report
applications, amendments, revisions, or supplements to a topical report
on or after August 9, 1991, are assessed at the applicable rate
established by Sec. 170.20.
Section 170.31 Schedule of Fees for Materials Licenses and Other
Regulatory Services, Including Inspections and Import and Export
Licenses
The licensing and inspection fees in this section, which are based
on full-cost recovery, are modified to recover the FY 1995 costs
incurred by the NRC in providing licensing and inspection services to
identifiable recipients. The fees assessed for services provided under
the schedule will be based on both the professional hourly rate as
shown in Sec. 170.20 for the materials program and any direct program
support (contractual services) costs expended by the NRC. Those
licensing fees, which are based on the average time to review an
application (``flat'' fees), are adjusted to reflect both the revised
average professional staff hours needed to process a licensing action
(new license, renewal, and amendment) and the decrease in the
professional hourly rate from $133 per hour in FY 1994 to $116 per hour
in FY 1995. The ``flat'' materials inspection fees in Sec. 170.31 are
eliminated and combined with the materials annual fees in
Sec. 171.16(d). Because there is no annual fee for licensees operating
under reciprocity in non-Agreement States, the application fee includes
the costs of inspections.
As previously indicated, the CFO Act requires that the NRC conduct
a review, on a biennial basis, of fees and other charges imposed by the
agency for its services and revise those charges to reflect the costs
incurred in providing the services. Consistent with the CFO Act
requirement, the NRC has completed its most recent review of license
and inspection fees assessed by the agency. The review focused on the
flat fees that are charged to nuclear materials users for licensing
actions (new licenses, renewals, and amendments). The full cost license
and inspection fees (e.g., for fuel facilities) and annual fees were
not included in this biennial review because the hourly rate for full
cost fees and the annual fees are reviewed and updated annually in
order to recover 100 percent of the NRC budget authority.
To determine the licensing flat fees for materials licensees and
applicants, the NRC uses historical data to determine the average
number of professional hours required to perform a licensing action for
each license category. These average hours are multiplied by the
revised materials program professional hourly rate of $116 per hour for
FY 1995. Because the professional hourly rate is updated annually and
the NRC is eliminating materials ``flat'' inspection fees, the FY 1995
biennial review examined only the average number of hours per licensing
action with regard to the 10 CFR Part 170 fees. The review indicated
that the NRC needed to modify the average number of hours on which the
current licensing flat fees are based in order to recover the cost of
providing licensing services. The average number of hours required for
licensing actions was last reviewed and modified in 1993 (58 FR 38666;
July 20, 1993). Thus the revised hours used to determine the fees for
FY 1995 reflect the changes in the licensing program that have occurred
since that time. For example, new initiatives underway for certain
types of licenses and management guidance that reviewers conduct more
detailed reviews of certain renewal applications based on historical
enforcement actions in order to insure public health and safety have
been incorporated into the revised fees. For new licenses and
amendments, the licensing fees for FY 1995 are reduced in approximately
50 percent of the cases, while the fees for renewals have increased in
over 70 percent of the cases.
The amounts of the licensing flat fees were rounded by applying
standard rules of arithmetic so that the amounts rounded would be de
minimis and convenient to the user. Fees that are greater than $1,000
are rounded to the nearest $100. Fees under $1,000 are rounded to the
nearest $10.
The licensing flat fees are applicable to fee categories 1.C and
1.D; 2.B and 2.C; 3.A through 3.P; 4.B through 9.D, 10.B, 15A through
15E and 16. Applications filed on or after the effective date of the
final rule are subject to the revised fees in this final rule. Although
the average amounts of time to review import and export licensing
applications have not changed, the fees in Category 15 have decreased
from FY 1994 as a result of the decrease in the hourly rate.
For those licensing, inspection, and review fees assessed that are
based on full-cost recovery (cost for professional staff hours plus any
contractual services), the materials program hourly rate of $116, as
shown in Sec. 170.20, applies to those professional staff hours
expended on or after the effective date of the final rule.
Part 171
Section 171.13 Notice
The language in this section is revised to reflect more accurately
when the NRC expects to publish its annual proposed fee rules. The
NRC's experience indicates that the agency has been unable to publish
the proposed rule during the first quarter of the fiscal year as
indicated in the current FY 1994 rule. Therefore, this section is
revised to indicate that the NRC will publish the proposed rule in the
Federal Register as early as is practicable but no later than the third
quarter of the fiscal year.
Section 171.15 Annual Fee: Reactor Operating Licenses
The annual fees in this section are revised to reflect FY 1995
budgeted costs. Paragraphs (a), (b)(3), (c)(1), (c)(2), (d), and (e)
are revised to comply with the requirement of OBRA-90 to recover
approximately 100 percent of the NRC budget for FY 1995. Table IV shows
the [[Page 32230]] budgeted costs that are allocated directly to
operating power reactors as part of the base annual fee. They have been
expressed in terms of the NRC's FY 1995 programs and cost centers. The
resulting total base annual fee amount for power reactors is shown, as
well as the one uniform base annual fee that will be assessed to all
operating reactors.
The NRC is streamlining the fee program by assessing one uniform
base annual fee for all operating power reactors. During the past four
years, the NRC has followed a somewhat lengthy and time consuming
process in calculating the amount of the power reactor annual fees. The
annual fees were determined in three ways. First, within the operating
power reactor class, a distinction was made between the four vendor
groups, that is, Babcock & Wilcox, Combustion Engineering, General
Electric and Westinghouse. Second, within each vendor group, a
distinction was made using the type of containment, for example,
General Electric Mark I, II or III. Third, a distinction was made based
on the location of the reactor: whether or not it is located east or
west of the Rocky Mountains. The NRC indicated in the FY 1991 rule (56
FR 31479; July 10, 1991) and again in its request for public comment on
NRC fee policy (58 FR 21119; April 19, 1993) that it would be
reexamining this approach with a view toward simplifying the method for
determining annual fees and streamlining the fee process without
causing an unfair burden. The NRC Office of the Inspector General
(OIG), in its report dated October 26, 1993, on license fees, described
the fee process as very detailed and labor intensive and stated that
substantial effort is expended in attempting to make the process
equitable and the costs reasonable. The OIG stated that the
determination of the Part 171 fees could be simplified by eliminating
and streamlining much of the detailed analyses performed as part of the
process. This detailed breakdown of the reactor annual fees was
implemented when there were significant differences in the NRC research
funding for the various types of reactors. This is no longer the case.
For example, in FY 1991, the difference between the highest and lowest
power reactor annual fee was $229,000 and in FY 1993 the difference was
$96,000. The NRC, for FY 1995, calculated the reactor annual fees using
both the current method (different fees for different types of
reactors) and the uniform method. The uniform annual fee of $2,936,000
is $23,000 higher than the lowest fee under the current method, which
is less than 1 percent of the $2.9 million annual fee for an operating
power reactor and $11,000 lower than the highest fee under the current
method. Because of this extremely small difference, the NRC is
establishing a single uniform annual fee for each operating power
reactor. Not only will this not cause an unfair burden, but it will
allow the NRC to streamline the fee program and simplify the fee
process.
Table IV.--Allocation of NRC FY 1995 Budget to Power Reactors' Base Fees\1\
----------------------------------------------------------------------------------------------------------------
Program total Allocated to power reactors
---------------------------------------------------------------------------
Program Program
support($,K) Direct FTE support($,K) Direct FTE
----------------------------------------------------------------------------------------------------------------
Reactor Program
Cost Center: Reactor Regulation:
Inspections..................... $4,350 471.4 $4,350 471.4
Reactor Oversight............... 11,615 357.0 11,615 357.0
Reactor and Site Licensing...... 1,660 26.3 1,660 26.3
Reactor Aging and Renewal....... 19,973 54.7 19,973 54.7
Safety Assessment and Regulatory
Development.................... 33,687 69.5 33,687 69.5
Independent Analysis of
Operational Experience......... 7,939 47.0 7,939 47.0
Technical Training and
Qualification.................. 4,728 19.0 4,728 19.0
Investigations, Enforcement and
Legal Advice................... 11 59.0 11 59.0
Independent Review.............. 536 42.0 536 42.0
---------------------------------------------------------------------------
Cost Center Total........... ................. ................. $84,499 1,145.9
===========================================================================
Cost Center: Standard Reactor
Designs:
Design Certification............ $6,873 91.6 $6,873 91.6
Safety Assessment............... 14,885 19.7 14,885 19.7
Legal Advice.................... ................. 3.0 ................. 3.0
Independent Review.............. 86 10.0 86 10.0
---------------------------------------------------------------------------
Cost Center Total........... ................. ................. $21,844 124.3
===========================================================================
Nuclear Materials and Nuclear Waste
Program
Cost Center: Fuel Facilities:
Licensing and Inspection........ 1,304 28.5 ................. .1
Cost Center: LLW and
Decommissioning:
Licensing and Inspection........ 50 2.6 ................. .9
Reactor Decommissioning......... 100 6.7 100 6.7
Radiological Surveys............ 1,653 ................. 331 .................
---------------------------------------------------------------------------
Cost Center Total........... ................. ................. $431 7.6
===========================================================================
Management and Support Programs
Cost Center: Special Technical
Programs:
Educational Grants.............. $1,050 ................. $1,050 .................
Small Business Innovation
Research....................... 1,844 ................. 1,844 .................
[[Page 32231]]
Nuclear Materials Mgt. and
Safeguards System.............. 1,165 1.0 850 .7
---------------------------------------------------------------------------
Cost Center Total............. ................. ................. $3,744 .7
---------------------------------------------------------------------------
Reactor Program Total......... ................. ................. $110,518 1,278.6
===========================================================================
Total base fee amount
allocated to power reactors.. ................. ................. ................. \2\ $385.0
million
Less estimated part 170 power
reactor fees................. ................. ................. ................. $122.9 million
---------------------------------------------------------------------------
Part 171 amount for operating
power reactors............... ................. ................. ................. $262.1 million
Part 171 base fee for each
operating reactor............ ................. ................. ................. $262.1 million
---------------------------------------------------------------------------
(\3\)
----------------------------------------------------------------------------------------------------------------
\1\ Base annual fees include all costs attributable to the operating power reactor class of licensees. The base
fees do not include costs allocated to power reactors for policy reasons.
\2\ Amount is obtained by multiplying the direct FTE times the rate per FTE ($214,765) and adding the program
support funds.
\3\ 108 reactors=$2,427,000 per reactor.
Paragraph (b)(3) is revised to establish the base uniform annual
fee for each operating power reactor and to change the fiscal year
references from FY 1994 to FY 1995.
Paragraphs (c)(1) and (c)(2) are amended to show the amount of the
budget allocated for policy reasons (surcharge) to operating reactors
for FY 1995. This surcharge is added to the base annual fee for each
operating power reactor. The purpose of this surcharge is to recover
those NRC budgeted costs that are not directly or solely attributable
to operating power reactors but nevertheless must be recovered to
comply with the requirements of OBRA-90.
The FY 1995 budgeted costs that are to be recovered in the
surcharge from all licensees are as follows:
Table V
[In millions of dollars]
------------------------------------------------------------------------
FY 1995 budgeted
Category of costs costs ($ in
millions)
------------------------------------------------------------------------
1. Activities not attributable to an existing NRC
licensee or class of licensee:
a. International cooperative safety program and
international safeguards activities............. 10.5
b. Agreement State oversight..................... 6.2
c. Low-level waste disposal generic activities;
and............................................. 7.0
d. Site decommissioning management plan
activities not recoverable under 10 CFR Part 170 5.6
2. Activities not assessed Part 170 licensing and
inspection fees or Part 171 annual fees based on
existing law or Commission policy:
a. Fee Exemption of nonprofit educational
institutions;................................... 6.1
b. Licensing and inspection activities associated
with other Federal agencies;.................... 1.6
c. Costs not recovered from Part 171 for small
entities........................................ 5.8
3. Activities supporting NRC operating licensees
and Others......................................
a. Regulatory support to Agreement States........ 14.2
b. Decommissioning-Reclamation................... 6.2
------------------
Total budgeted costs........................... 63.2
------------------------------------------------------------------------
Excluding low-level waste costs totalling $7 million, the current
policy allocates the remaining $56.2 million based on three different
methods. First, 100 percent of costs for certain activities (e.g.,
international activities and the nonprofit educational institution
exemption) are allocated to operating power reactors, based on the
guidance in the Conference Committee report accompanying OBRA-90 which
stated that these types of costs may be recovered from such licensees
as the Commission determines can fairly, equitably and practicably
contribute to their payment. The second method prorates the costs of
some activities (e.g., small entity subsidy and Agreement State
oversight) to all licensees under the implicit assumption that no one
class of licensees should have to bear the full cost. Under the third
method, 100 percent of the costs of some activities (e.g., SDMP and
regulatory support to Agreement States) are allocated to the class of
licensees to which the activities relate, independent of whether the
activities are needed for current licensees/applicants or support non-
NRC licensees. In addition to being based on three different
principles, the current policy creates significant annual fee problems
for classes of licensees with a small or declining number of licensees.
For example, as more states become Agreement States, the relatively
fixed costs for generic regulatory activities (e.g., rulemaking,
research, evaluation of operational data and policy development) that
support both NRC and Agreement State licensees will be allocated to a
smaller number of [[Page 32232]] materials licensees, causing the NRC
materials licensees' annual fees to increase substantially. For
example, if the four States who have expressed interest in becoming
Agreement States do so within the next few years, then the remaining
NRC materials licensees' annual fees would increase by about 30 percent
from current levels.
Therefore, the NRC is changing the current policy for allocating
the costs for activities which have raised fairness and equity concerns
among many NRC licensees. The changes are based on the premise that
these costs should be borne by all NRC licensees, because while the
activities are necessary for the NRC to carry out its responsibilities,
in most instances, they go beyond the regulation of those licensees or
applicants that pay fees. Thus, the NRC has allocated the costs in
question to the broadest base of NRC licensees that pay annual fees.
The allocation is based on the amount of the budget directly
attributable to a class of licensees and results in, for instance,
operating power reactors paying 89 percent of the cost of these
activities, compared to approximately 50 percent of these costs in the
FY 1994 rule.
This change is consistent with the guidance in the Conference
Committee Report that accompanied OBRA-90. First, by allocating these
costs to the broadest base of NRC licensees, this change is consistent
with the Conference Report guidance that: ``The Commission should
assess the charge for these activities as broadly as practicable in
order to minimize the burden for these costs on any licensee or class
of licensees so as to establish as fair and equitable a system as is
feasible.'' Second, allocating a higher percentage of these costs to
operating power reactors as opposed to other classes of licensees is
also consistent with the Conference Report guidance that: ``These
expenses may be recovered from such licensees as the Commission, in its
discretion, determines can fairly, equitable and practicably contribute
to their payment.'' Allocating these costs to the universe of NRC
licenses will minimize the impact of the declining numbers of licenses
in any specific class, because the costs will be allocated over the
maximum number of licensees. It will also put in place both a policy
that will help mitigate future fee concerns associated with declining
number of licenses, and a single methodology for allocating these types
of costs, something that has been requested in comments submitted on
previous proposed fee rules.
The annual additional charge for each operating power reactor is
determined as follows:
[GRAPHIC][TIFF OMITTED]TR20JN95.000
With respect to Big Rock Point, a smaller older reactor, the NRC
hereby grants a partial exemption from the FY 1995 annual fees similar
to FY 1994 based on a request filed with the NRC in accordance with
Sec. 171.11. The total amount of $0.2 million to be paid by Big Rock
Point has been subtracted from the total amount assessed operating
reactors as a surcharge.
Based on the information in Tables IV and V, each operating power
reactor, except Big Rock Point, will pay a base annual fee of
$2,427,000 and an additional charge of $509,000 for a total FY 1995
annual fee of $2,936,000. The annual fee in this final rule is less
than the annual fee shown in the proposed rule because of higher
estimated collections anticipated in FY 1995 from 10 CFR Part 170 fees.
Paragraph (d) is revised to show the amount of the total FY 1995
uniform annual fee, including the surcharge, to be assessed to each
operating power reactor.
Paragraph (e) is revised to show the amount of the FY 1995 annual
fee for nonpower (test and research) reactors. In FY 1995, $339,000 in
costs are attributable to those commercial and non-exempt Federal
government organizations that are licensed to operate test and research
reactors. Applying these costs uniformly to those nonpower reactors
subject to fees results in an annual fee of $56,500 per operating
license. The Energy Policy Act of 1992 established an exemption for
certain Federally-owned research reactors that are used primarily for
educational training and academic research purposes, where the design
of the reactor satisfies certain technical specifications set forth in
the legislation. Consistent with this legislative requirement, the NRC
granted an exemption from annual fees for FY 1992 and FY 1993 to the
Veterans Administration Medical Center in Omaha, Nebraska, the U.S.
Geological Survey for its reactor in Denver, Colorado, and the Armed
Forces Radiobiological Institute in Bethesda, Maryland, for its
research reactor. This exemption was initially codified in the July 20,
1993 (58 FR 38695) final fee rule at Sec. 171.11(a) and more recently
in the March 17, 1994 (59 FR 12543) final rule at Sec. 171.11(a)(2).
The NRC amended Sec. 171.11(a)(2) on July 20, 1994 (59 FR 36895) to
exempt from annual fees the research reactor owned by the Rhode Island
Atomic Energy Commission. The NRC will continue to grant exemptions
from the annual fee to those Federally-owned and State owned research
and test reactors who meet the exemption criteria specified in
Sec. 171.11.
Section 171.16 Annual fees: Materials Licensees, Holders of
Certificates of Compliance, Holders of Sealed Source and Device
Registrations, Holders of Quality Assurance Program Approvals, and
Government Agencies Licensed by the NRC
Section 171.16(c) covers the fees assessed for those licensees that
can qualify as small entities under NRC size standards. On April 7,
1994 (59 FR 16513), the Small Business Administration (SBA) issued a
final rule [[Page 32233]] changing its size standards. The SBA adjusted
its receipts-based size standard levels to mitigate the effects of
inflation from 1984 to 1994. On April 11, 1995 (60 FR 18344), the NRC
published a final rule amending its size standards. The size standards
are as follows:
(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 three 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 purposes of this section, the NRC shall use the Small
Business Administration definition of receipts. (13 CFR 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.
Therefore, the small entity categories in Sec. 171.16(c) of this
final fee rule have been modified to reflect the changes in the NRC's
size standards. Consistent with the establishment of an employee size
standard for manufacturers, the NRC is establishing a new maximum small
entity fee for manufacturing industries with 35 to 500 employees at
$1,800 and a lower-tier small entity fee of $400 is established for
those manufacturing industries and educational institutions not State
or publicly supported with less than 35 employees. The lower-tier
receipts-based threshold of $250,000 is raised to $350,000 to reflect
approximately the same percentage adjustment as that made by the SBA
when they adjusted the receipts-based standard from $3.5 million to $5
million.
Section 171.16(d) is revised to reflect the FY 1995 budgeted costs
for materials licensees, including Government agencies, licensed by the
NRC. These fees are necessary to recover the FY 1995 generic and other
regulatory costs totalling $42.5 million that apply to fuel facilities,
uranium recovery facilities, rare earth facilities, spent fuel
facilities, holders of transportation certificates and QA program
approvals, and other materials licensees, including holders of sealed
source and device registrations.
Tables VI and VII show the NRC programs, cost centers, and
resources that are attributable to fuel facilities and materials users,
respectively. The costs attributable to the uranium recovery and rare
earth classes of licensees are those associated with uranium recovery
and rare earth licensing, inspection, and generic activities. For
transportation, the costs are those budgeted for transportation
licensing, inspection, and generic activities. Similarly, the budgeted
costs for spent fuel storage are those for spent fuel storage
licensing, inspection and generic activities.
Table VI.--Allocation of NRC FY 1995 Budget to Fuel Facility Base Fees\1\
----------------------------------------------------------------------------------------------------------------
Total program element Allocated to fuel facility
---------------------------------------------------------------------------
Program support Program support
$,K FTE $,K FTE
----------------------------------------------------------------------------------------------------------------
Cost Center: Fuel Facilities:
Fuel Fabricators Oversight and
Inspections.................... $1,698 59.0 $1,486 56.1
Cost Center: LLW and
Decommissioning:
Decommissioning................. 4,447 50.0 325 1.7
Cost Center: Other Nuclear Materials
and Waste:
Independent Analysis of
Operating Experience........... 346 8.0 69 1.6
Technical Training and
Qualification.................. 692 2.0 138 .4
Adjudicatory Reviews............ - 1.0 - .5
Investigations, Enforcement,
Legal Advice................... 11 39.0 1 1.6
Cost Center: Special Technical
Program:
Nuclear Materials Mgt. and
Safeguards System.............. 1,165 1.0 47 -
---------------------------------------------------------------------------
Total......................... ................. ................. $2,066 61.9
===========================================================================
Total Base Fee Amount
Allocated to Fuel Facilities. ................. ................. ................. \2\ $14.6 million
Less Part 170 Fuel Facility
Fees......................... ................. ................. ................. 4.5 million
---------------------------------------------------------------------------
Part 171 Base Fees for Fuel
Facilities................... ................. ................. ................. $10.1 million
----------------------------------------------------------------------------------------------------------------
\1\ Base annual fee includes all costs attributable to the fuel facility class of licensees. The base fee does
not include costs allocated to fuel facilities for policy reasons.
\2\ Amount is obtained by multiplying the direct FTE times the rate per FTE ($203,096) and adding the program
support funds.
[[Page 32234]]
Table VII.--Allocation of FY 1995 Budget to Material Users' Base Fees \1\
----------------------------------------------------------------------------------------------------------------
Total program element Allocated to materials users
---------------------------------------------------------------------------
Program support Program support
$,K FTE $,K FTE
----------------------------------------------------------------------------------------------------------------
Nuclear Materials & Nuclear Waste
Program
Cost Center: Materials Users:
Licensing/Inspection of
Materials Users................ 2,436 113.0 721 82.3
Materials Licensee Performance.. 700 1.8 189 .5
Materials Regulatory Standards.. 1,494 12.8 403 3.5
Radiation Protection Health
Effects........................ 1,621 5.3 438 1.4
---------------------------------------------------------------------------
Cost Center Total............. ................. ................. 1,751 87.7
===========================================================================
Cost Center: LLW & Decommissioning:
Licensing & Inspections......... 50 2.6 ................. .2
Decommissioning................. 214 32.8 69 3.5
Radiological Surveys............ 1,653 ................. 372 .................
---------------------------------------------------------------------------
Cost Center Total............. ................. ................. 441 3.7
===========================================================================
Cost Center: Other Nuclear
Materials:
Analysis of Operational
Experience..................... 346 8.0 184 1.7
Technical Training.............. 692 2.0 498 1.4
Adjudicatory Reviews............ ................. 1.0 ................. .5
Investigations/Enforcement...... 11 39.0 9 24.4
Event Evaluation............... ................. 16.0 ................. 4.4
---------------------------------------------------------------------------
Cost Center Total............. ................. ................. 691 32.4
===========================================================================
Total Program................. ................. ................. 2,883 123.8
Management & Support Program
Cost Center: Special Technical
Programs:
Nuclear Material Management &
Safeguard Systems.............. 1,165 1.0 74 .1
---------------------------------------------------------------------------
Total All Programs........... ................. ................. 2,957 123.9
===========================================================================
Base Amount Allocated to
Materials Users.............. ................. ................. ................. \2\ 28.1 million
Less Part 170 Materials Users
Fees......................... ................. ................. ................. 3.4 million
---------------------------------------------------------------------------
Part 171 Base Fees For
Materials Users.............. ................. ................. ................. 24.7 million
----------------------------------------------------------------------------------------------------------------
\1\ Base annual fee includes all costs attributable to the materials class of licensees. The base fee does not
include costs allocated to materials licensees for policy reasons.
\2\ Amount is obtained by multiplying the direct FTE times the rate per FTE ($203,096) and adding the program
support funds.
Major Fuel Facilities
The allocation of the NRC's $10.1 million in budgeted costs to the
individual fuel facilities is based on the revised methodologies
indicated earlier. The NRC indicated in its final FY 1994 fee rule that
given the questions raised at that time by B&W Fuel Company, General
Atomics, and other fuel facilities it would reexamine the fuel facility
subclass categorizations and that any restructuring resulting from this
reexamination would be included in the FY 1995 proposed rule for notice
and comment (59 FR 36901; July 20, 1994). The NRC is therefore
establishing a revised methodology for determining annual fees for fuel
facilities. The revised methodology has been used to determine the FY
1995 annual fees. The objective of revising the methodology is to
reflect more precisely agency generic costs attributable to fuel
facility licensees. This new methodology results in the creation of
five fuel facility license fee categories. Licenses are grouped into
these categories according to their license (nuclear material type,
enrichment, form, quantity, and use/associated activity) and according
to the scope, depth of coverage and rigor of generic regulatory
programmatic effort applicable to each category. This methodology can
be applied to determine fees for new licenses, current licenses and for
licensees in unique license situations. In each case, the existing
license was used to determine values for licensed nuclear material and
its use without regard for current or planned licensee activities,
which are at the discretion of the licensee.
The methodology is amenable to changes in the number of licenses,
licensed material/activities, and total programmatic resources to be
recovered through annual fees. When a license is modified, given that
NRC recovers approximately 100 percent of its generic regulatory
program costs through fee recovery, this revised fuel facility fee
methodology may result in a change in fee category and may have an
effect on the fees assessed to other licensees. For example, if a fuel
facility licensee amended its license so as to avoid part 171 fees for
fuel facilities, the budget for the safety component would be spread
only among those remaining licensees, resulting in a higher annual fee
for those licensees.
Therefore, the methodology is applied as follows. First, a fee
category is assigned based on certain criteria and the licensed nuclear
material and use/associated activity. Although a licensee may choose
not to fully utilize a license, the license is still used as the source
for determining authorized nuclear material and use/associated
activity. Next, the category/license information is used to
[[Page 32235]] determine where the license will fit into the matrix.
The matrix depicts the categorization of licenses by authorized
material and use/activity and the relative programmatic effort
associated with each category. The programmatic effort (expressed as a
value in the matrix) reflects the safety or safeguards significance
associated with the authorized nuclear material and use/activity, and
the commensurate generic regulatory program (i.e., scope, depth and
rigor). The relative weighted factors per facility for the various
subclasses are as follows:
------------------------------------------------------------------------
Relative weight per
Number of facility
facilities -------------------------
Safety Safeguards
------------------------------------------------------------------------
High Enriched Fuel............... 2 1.00 1.00
Low Enriched Fuel................ 4 .52 .34
Limited Operations Facility...... 1 .20 .11
UF6 Conversion................... 1 .30 ...........
Others........................... 3 .12 .09
------------------------------------------------------------------------
The above weighted factors for the safety and safeguards portion
are applied to the $10.1 million base fee. To this base fee, the LLW
and other surcharges are added. The resulting annual fee for each fuel
facility, including the additional charge (surcharge) is shown below.
------------------------------------------------------------------------
Type of facility Annual fee
------------------------------------------------------------------------
High Enriched Fuel:
Babcock & Wilcox......................................... $2,569,000
Nuclear Fuel Services.................................... 2,569,000
Low Enriched Fuel:
Combustion Engineering (Hematite)........................ 1,261,000
General Electric......................................... 1,261,000
Siemens Nuclear Power.................................... 1,261,000
Westinghouse............................................. 1,261,000
Limited Operation Facilities:
B&W Fuel Company......................................... 501,700
UF6 Conversion:
AlliedSignal Corp........................................ 639,200
Other Fuel Facilities:
Babcock & Wilcox......................................... 340,700
General Atomics.......................................... 340,700
General Electric......................................... 340,700
------------------------------------------------------------------------
Uranium Recovery
Of the $2.3 million ($1.8 million in base budget plus $0.5 million
in surcharge) attributable to the uranium recovery class of licensees,
approximately $1.9 million will be assessed to the Department of Energy
(DOE) to recover the costs associated with DOE facilities under the
Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA). In
September 1993, DOE became a general licensee of the NRC because post-
reclamation closure of the Spook, Wyoming site had been achieved. There
are two additional UMTRCA sites now under the general license: Burrell,
Pennsylvania and Loman, Idaho.
As indicated earlier, the NRC has refined its methodology for
establishing part 171 annual fees for non-DOE uranium recovery
licenses. The methodology identifies three categories of licenses: (1)
Conventional uranium mills; (2) solution mining uranium mills; and (3)
mill tailings disposal facilities, each of which benefits from the
generic uranium recovery program. In order to determine the benefits to
each uranium recovery category, a matrix was established to relate the
category and the level of benefit, by program element and subelement.
The two major program elements of the generic uranium recovery program
are activities related to facility operations and those related to
facility closure. Each of these elements was further divided into three
subelements. The three major subelements of generic activities related
to uranium facility operations are activities related to: (1) The
operation of the mill; (2) the handling and disposal of waste; and (3)
prevention of groundwater contamination. The three major subelements of
generic activities related to uranium facility closure are activities
related to: (1) decommissioning of facilities and cleanup of land; (2)
reclamation and closure of the tailings impoundment; and (3) cleanup of
contaminated groundwater. Weighted factors were assigned to each
program element and subelement.
The two existing categories of mills, those that perform
conventional milling and those that perform solution mining and
milling, are continued. The existing category for licenses whose
purpose is to dispose of Section 11e.(2) byproduct material is also
continued. The matrix also contains a category for conventional mills
with Possession Only Licenses that are also authorized to dispose of
more than 5,000 cubic yards of byproduct material, as defined in
section 11e.(2) of the Atomic Energy Act of 1954, as amended, from
other facilities. Currently, there are three mills authorized for such
waste disposal. The applicability of the generic program in each
subelement to each uranium recovery category was qualitatively
estimated as either significant, some, minor, or none.
The resulting relative weighted factor per facility for the various
subclasses is as follows:
------------------------------------------------------------------------
Relative
Number of weight per
facilities facility
------------------------------------------------------------------------
Class I facilities.............................. 3 1.00
Class II facilities............................. 6 .57
11e.(2) disposal................................ 1 .73
11e.(2) disposal incidental to existing tailings
sites.......................................... 3 .13
------------------------------------------------------------------------
Using this refined approach, the remaining $0.4 million not
recovered from DOE results in annual fees for each class of licensees
as follows:
2.A.(2)--Class I facilities: $60,900
2.A.(2)--Class II facilities: $34,400
2.A.(2)--Other facilities: $22,000
2.A.(3)--11e(2) disposal: $44,700
2.A.(4)--11e(2) disposal incidental to existing tailings site: $7,900
Rare Earth Facilities
Because rare earth facilities are now budgeted for separately, a
separate class has been established for these licensees in this final
rule. For rare earth facilities, the generic and other regulatory costs
of $66,000 have been spread uniformly among licensees who have a
specific license for receipt and processing of source material. This
results in an annual fee of $22,000 for each facility.
Spent Fuel Storage Facilities
For spent fuel storage licenses, the costs of $2.2 million ($1.6
million in base budget plus $0.6 million in surcharge) have been spread
uniformly among those licensees who hold specific or general licenses
for receipt and storage of spent fuel at an ISFSI. This results in an
annual fee of $279,000 for each facility. This represents a fee
decrease compared to FY 1994 because there are now more licensees in
this [[Page 32236]] class. It also represents a fee decrease compared
to the proposed rule because of higher estimated collections
anticipated in FY 1995 from 10 CFR part 170 fees.
Materials Licenses
To equitably and fairly allocate the $24.7 million directly
attributable to the approximately 6,200 diverse material users and
registrants plus the materials share ($2.8 million) of the surcharge,
the NRC has continued to base the annual fee on the 10 CFR Part 170
application fees and an estimated cost for inspections. Because the
application fees and inspection costs are indicative of the complexity
of the license, this approach continues to provide a proxy for
allocating the generic and other regulatory costs to the diverse
categories of licensees based on how much it costs NRC to regulate each
category. The fee calculation also continues to consider the inspection
frequency, which is indicative of the safety risk and resulting
regulatory costs associated with the categories of licensees. In
summary, the annual fee for these categories of licenses is developed
as follows:
Annual Fee=(Application Fee+Average Inspection Cost/Inspection
Priority) x Constant+(Unique Category Costs).
The constant is the multiple necessary to recover $24.7 million and
is 1.7 for FY 1995. The unique costs are any special costs that the NRC
has budgeted for a specific category of licensees. For FY 1995, unique
costs of approximately $1.0 million were identified for the medical
improvement program which is attributable to medical licensees.
For the first time, the NRC is combining the ``flat'' material
inspection fees in 10 CFR part 170 with the annual fees in 10 CFR part
171. This is being done to recognize that the ``regulatory service'' to
licensees referred to in OBRA-90, comprises the total regulatory
activities that NRC determines are needed to regulate a class of
licensees. These regulatory services include not only ``flat'' fee
inspections but also research, rulemaking, orders, enforcement actions,
responses to allegations, incident investigations and other activities
necessary to regulate classes of licensees. In addition to being
consistent with the regulatory service concept in OBRA-90, the NRC
believes that materials licensees' ``flat'' inspection fees can be
combined with their annual fees without creating any significant
questions of fairness. This is because the concept of the annual fee,
including the inspection fee, has, in effect, already been implemented
for most materials licensees. First, materials licensees currently pay
a ``flat fee'' per inspection based on the average cost of an
inspection for their fee category, and second, the routine inspection
frequency is identical for most licensees in the same fee category.
Furthermore, past experience suggests that less than 10 percent of the
materials inspections for these licensees are nonroutine. Thus,
licensees in the same materials license fee category currently pay
essentially the same average annual cost for inspections. Therefore,
combining inspection and annual fees results in essentially the same
average cost per license over time. Additionally, this approach will
provide materials licensees with simpler and more predictable NRC fee
charges as there will be no additional fees paid for periodic
inspections. Because certain materials FY 1995 annual fees include
inspection costs, those materials licensees who paid a ``flat'' 10 CFR
part 170 inspection fee for inspections conducted in FY 1995 will
receive a credit for those payments towards their FY 1995 annual fee
assessed under 10 CFR part 171. Those Agreement state licensees who
paid an inspection fee for inspections conducted in FY 1995 will not
receive a credit-refund because they pay no annual fee.
Materials annual fees for FY 1995 have decreased compared to the FY
1994 annual fees. There are two basic reasons for this. First, the FY
1995 budgeted amount attributable to materials licensees is about 35
percent lower than the comparable FY 1994 amount, based on the
reallocation of certain materials budgeted costs to the broadest base
of NRC licensees rather than to materials licensees as discussed
earlier. Second, the professional hourly rate for the materials program
has decreased from $133 per hour to $116 per hour, due to the use of
cost center concepts in allocating NRC budgeted costs. These decreases
are partially offset by a decrease in the number of licensees to be
assessed annual fees in FY 1995 (from about 6,500 to about 6,200) and
the inclusion of the average annual inspection costs with the annual
fee. The annual fees for some categories in this final rule have
decreased compared to the proposed rule because of higher estimated
collections anticipated in FY 1995 from 10 CFR part 170 fees.
A materials licensee may pay a reduced annual fee if the licensee
qualifies as a small entity under the NRC's size standards and
certifies that it is a small entity using NRC Form 526.
Transportation
To recover the $4.7 million attributable to the transportation
class of licensees, $1.2 will be assessed to the Department of Energy
(DOE) to cover all of its transportation casks under Category 18. The
remaining transportation costs for generic activities ($3.5 million)
are allocated to holders of approved QA plans. The annual fee for
approved QA plans is $77,800 for users and fabricators and $1,000 for
users only.
The amount or range of the FY 1995 annual fees for all materials
licensees is summarized as follows:
Materials Licenses--Annual Fee Ranges
------------------------------------------------------------------------
Category of license Annual fees
------------------------------------------------------------------------
Part 70--High enriched fuel................... $2,569,000.
Part 70--Low enriched fuel.................... 1,261,000.
Part 40--UF6 conversion....................... 639,200.
Part 40--Uranium recovery..................... 22,000 to 60,900.
Part 30--Byproduct Material................... 480 to 23,200.\1\
Part 71--Transportation of Radioactive 1,000 to 77,800.
Material.
Part 72--Independent Storage of Spent Nuclear 279,000.
Fuel.
------------------------------------------------------------------------
\1\ Excludes the annual fee for a few military ``master'' materials
licenses of broad-scope issued to Government agencies, which is
$415,300.
Surcharge
Section 171.16(e) is amended to establish the additional charge
which is included in the annual fees shown in Sec. 171.16(d) of this
final rule. The Commission is continuing the approach established in FY
1993 to assess the budgeted low-level waste (LLW) costs to two broad
categories of licensees (large LLW generators and small LLW generators)
based on historical disposal data. This surcharge is included in the
annual fees for the applicable categories in Sec. 171.16(d). Although
these NRC LLW disposal regulatory activities are not directly
attributable to regulation of NRC materials licensees, the costs
nevertheless must be recovered in order to comply with the requirements
of OBRA-90. For FY 1995, the additional charge recovers approximately
18 percent of the NRC budgeted costs of $7.0 million relating to LLW
disposal generic activities from small generators, which are comprised
of materials licensees that dispose of LLW. The percentage distribution
reflects the [[Page 32237]] deletion of costs for LLW disposed of by
Agreement State licensees. Of the $7.0 million in budgeted costs shown
above for LLW activities, 82 percent of the amount ($5.7 million) is
allocated to the 119 large waste generators (reactors and fuel
facilities) included in 10 CFR part 171. This results in an additional
charge of $48,000 per facility. Thus, the LLW charge will be $48,000
per HEU, LEU, UF6 facility, and each of the other three fuel
facilities. The remaining $1.3 million is allocated to the materials
licensees in categories that generate low-level waste (895 licensees)
as follows: $1,400 per materials license except for those in Category
17. Those licensees that generate a significant amount of low-level
waste for purposes of the calculation of the $1,400 surcharge are in
fee Categories 1.B, 1.D, 2.C, 3.A, 3.B, 3.C, 3.L, 3.M, 3.N, 4.A, 4.B,
4.C, 4.D, 5.B, 6.A, and 7.B. The surcharge for licenses in fee Category
17, which also generate and/or dispose of low-level waste, is $21,000.
Certain costs that caused fairness and equity concerns are
allocated to materials licensees based on the percent of the budget
that each class comprises. This allocation approach was explained in
the previous explanation of changes to Sec. 171.15 of this section.
Footnote 1 of 10 CFR 171.16(d) is amended to provide for a waiver
of the annual fees for those materials licensees, and holders of
certificates, registrations, and approvals who either filed for
termination of their licenses or approvals, or filed for possession
only/storage only licenses before October 1, 1994, and permanently
ceased licensed activities entirely by September 30, 1994. All other
licensees and approval holders who held a license or approval on
October 1, 1994 are subject to the FY 1995 annual fees.
Section 171.17 Proration
10 CFR 171.17 is amended to add a proration provision to allow for
proration of the annual fee for a downgraded materials license upon
request of the licensee. A proration request must be filed with the NRC
within 90 days from the effective date of the final rule establishing
the annual fees for which a proration is sought. Absent extraordinary
circumstances, any request for proration of the annual fee for a
downgraded materials license filed beyond that date will not be
considered.
Annual fees for materials licenses downgraded after October 1 of a
fiscal year will be prorated on the basis of when the applications for
downgrade are received by the NRC, provided the licensee permanently
ceased the stated activities during the specified period. Annual fees
for materials licenses for which applications to downgrade are filed
during the period October 1 through March 31 of the fiscal year will be
prorated as follows: (1) Licenses for which applications have been
filed to reduce the scope of the license from a higher fee
category(ies) to a lower fee category(ies) will be assessed one-half
the annual fee for the higher fee category(ies) and one-half the annual
fee for the lower fee category(ies), and, if applicable, the full
annual fee for fee categories not affected by the downgrade; and (2)
licenses with multiple fee categories for which applications have been
filed to downgrade by deleting a fee category will be assessed one-half
the annual fee for the fee category being deleted and the full annual
fee for the remaining categories. Materials licenses for which
applications for downgrade are filed on or after April 1 of the FY are
assessed the full fee for that fiscal year.
Section 171.19 Payment
This section is revised to give credit for partial payments made by
certain licensees in FY 1995 toward their FY 1995 annual fees. The NRC
anticipates that the first, second, and third quarterly payments for FY
1995 will have been made by operating power reactor licensees and some
materials licensees before the final rule is effective. Therefore, the
NRC will credit payments received for those quarterly annual fee
assessments toward the total annual fee to be assessed. The NRC will
adjust the fourth quarterly bill in order to recover the full amount of
the revised annual fee, or to make refunds, as necessary. The NRC also
expects that certain materials licensees will have paid inspection fees
for inspections that were performed in FY 1995, whereas this final rule
includes such costs in the annual fee. The FY 1995 annual fee bills
will reflect a credit for these inspection fee payments. As in FY 1994,
payment of the annual fee is due on the effective date of the rule and
interest accrues from the effective date of the rule. However, interest
will be waived if payment is received within 30 days from the effective
date of the rule.
During the past four years many licensees have indicated that
although they held a valid NRC license authorizing the possession and
use of special nuclear, source, or byproduct material, they were in
fact either not using the material to conduct operations or had
disposed of the material and no longer needed the license. In
responding to licensees about this matter, the NRC has stated that
annual fees are assessed based on whether a licensee holds a valid NRC
license that authorizes possession and use of radioactive material.
Whether or not a licensee is actually conducting operations using the
material is a matter of licensee discretion. The NRC cannot control
whether a licensee elects to possess and use radioactive material once
it receives a license from the NRC. Therefore, the NRC reemphasizes
that the annual fee will be assessed based on whether a licensee holds
a valid NRC license that authorizes possession and use of radioactive
material. To remove any uncertainty, the NRC issued minor clarifying
amendments to 10 CFR 171.16, footnotes 1 and 7 on July 20, 1993 (58 FR
38700).
V. 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 impact
assessment has been prepared for the final regulation.
VI. Paperwork Reduction Act Statement
This final rule contains no information collection requirements
and, therefore, is not subject to the requirements of the Paperwork
Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
VII. Regulatory Analysis
With respect to 10 CFR part 170, this final rule was developed
pursuant to Title V of the Independent Offices Appropriation Act of
1952 (IOAA) (31 U.S.C. 9701) and the Commission's fee guidelines. When
developing these guidelines the Commission took into account guidance
provided by the U.S. Supreme Court on March 4, 1974, in its decision of
National Cable Television Association, Inc. v. United States, 415 U.S.
36 (1974) and Federal Power Commission v. New England Power Company,
415 U.S. 345 (1974). In these decisions, the Court held that the IOAA
authorizes an agency to charge fees for special benefits rendered to
identifiable persons measured by the ``value to the recipient'' of the
agency service. The meaning of the IOAA was further clarified on
December 16, 1976, by four decisions of the U.S. Court of Appeals for
the District of Columbia, National Cable Television Association v.
Federal Communications Commission, 554 F.2d 1094 (D.C. Cir. 1976);
National Association of Broadcasters v. Federal Communications
Commission, 554 F.2d 1118 (D.C. Cir. 1976); Electronic
[[Page 32238]] Industries Association v. Federal Communications
Commission, 554 F.2d 1109 (D.C. Cir. 1976) and Capital Cities
Communication, Inc. v. Federal Communications Commission, 554 F.2d 1135
(D.C. Cir. 1976). These decisions of the Courts enabled the Commission
to develop fee guidelines that are still used for cost recovery and fee
development purposes.
The Commission's fee guidelines were upheld on August 24, 1979, by
the U.S. Court of Appeals for the Fifth Circuit in Mississippi Power
and Light Co. v. U.S. Nuclear Regulatory Commission, 601 F.2d 223 (5th
Cir. 1979), cert. denied, 444 U.S. 1102 (1980). The Court held that--
(1) The NRC had the authority to recover the full cost of providing
services to identifiable beneficiaries;
(2) The NRC could properly assess a fee for the costs of providing
routine inspections necessary to ensure a licensee's compliance with
the Atomic Energy Act and with applicable regulations;
(3) The NRC could charge for costs incurred in conducting
environmental reviews required by NEPA;
(4) The NRC properly included the costs of uncontested hearings and
of administrative and technical support services in the fee schedule;
(5) The NRC could assess a fee for renewing a license to operate a
low-level radioactive waste burial site; and
(6) The NRC's fees were not arbitrary or capricious.
With respect to 10 CFR part 171, on November 5, 1990, the Congress
passed Pub. L. 101-508, the Omnibus Budget Reconciliation Act of 1990
(OBRA-90) which required that for FYs 1991 through 1995, approximately
100 percent of the NRC budget authority be recovered through the
assessment of fees. OBRA-90 was amended in 1993 to extend the 100
percent fee recovery requirement for NRC through 1998. To accomplish
this statutory requirement, the NRC, in accordance with Sec. 171.13, is
publishing the final amount of the FY 1995 annual fees for operating
reactor licensees, fuel cycle licensees, materials licensees, and
holders of Certificates of Compliance, registrations of sealed source
and devices and QA program approvals, and Government agencies. OBRA-90
and the Conference Committee Report specifically state that--
(1) The annual fees be based on the Commission's FY 1995 budget of
$525.6 million less the amounts collected from Part 170 fees and the
funds directly appropriated from the NWF to cover the NRC's high level
waste program;
(2) The annual fees shall, to the maximum extent practicable, have
a reasonable relationship to the cost of regulatory services provided
by the Commission; and
(3) The annual fees be assessed to those licensees the Commission,
in its discretion, determines can fairly, equitably, and practicably
contribute to their payment.
The NRC is establishing a uniform annual fee rather than an annual
fee that considers the various vendors, the types of containment, and
the location of the operating power reactors. The NRC believes the
difference in annual fees of about $20,000 between the highest and
lowest annual fee assessed under the current method is small enough
relative to the size of the $2.9 million annual fees, to justify moving
to a uniform annual fee particularly in light of the administrative
savings that will follow. The annual fees for fuel cycle licensees,
materials licensees, and holders of certificates, registrations and
approvals and for licenses issued to Government agencies take into
account the type of facility or approval and the classes of the
licensees.
10 CFR Part 171, which established annual fees for operating power
reactors effective October 20, 1986 (51 FR 33224; September 18, 1986),
was challenged and upheld in its entirety in Florida Power and Light
Company v. United States, 846 F.2d 765 (D.C. Cir. 1988), cert. denied,
490 U.S. 1045 (1989).
10 CFR parts 170 and 171, which established fees based on the FY
1989 budget, were also legally challenged. As a result of the Supreme
Court decision in Skinner v. Mid-American Pipeline Co., 109 S. Ct. 1726
(1989), and the denial of certiorari in Florida Power and Light, all of
the lawsuits were withdrawn.
The NRC's FY 1991 annual fee rule was largely upheld by the D.C.
Circuit Court of Appeals in Allied Signal v. NRC, 988 F.2d 146 (D.C.
Cir. 1993).
VIII. Regulatory Flexibility Analysis
The NRC is required by the Omnibus Budget Reconciliation Act of
1990 to recover approximately 100 percent of its budget authority
through the assessment of user fees. OBRA-90 further requires that the
NRC establish a schedule of charges that fairly and equitably allocates
the aggregate amount of these charges among licensees.
This final rule establishes the schedules of fees that are
necessary to implement the Congressional mandate for FY 1995. The final
rule results in a decrease in the annual fees charged to most
licensees, and holders of certificates, registrations, and approvals,
including those licensees who are classified as small entities under
the Regulatory Flexibility Act. The Regulatory Flexibility Analysis,
prepared in accordance with 5 U.S.C. 604, is included as Appendix A to
this final rule.
IX. Backfit Analysis
The NRC has determined that the backfit rule, 10 CFR 50.109, does
not apply to this final rule and that a backfit analysis is not
required for this final rule. The backfit analysis is not required
because these final amendments do not require the modification of or
additions to systems, structures, components, or design of a facility
or the design approval or manufacturing license for a facility or the
procedures or organization required to design, construct or operate a
facility.
List of Subjects
10 CFR Part 170
Byproduct material, Import and export licenses, Intergovernmental
relations, Non-payment penalties, Nuclear materials, Nuclear power
plants and reactors, Source material, Special nuclear material.
10 CFR Part 171
Annual charges, Byproduct material, Holders of certificates,
registrations, approvals, Intergovernmental relations, Non-payment
penalties, Nuclear materials, Nuclear power plants and reactors, Source
Material, Special Nuclear Material.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended, and 5 U.S.C. 552 and 553,
the NRC is adopting the following amendments to 10 CFR parts 170 and
171.
PART 170--FEES FOR FACILITIES, MATERIALS, IMPORT AND EXPORT
LICENSES, AND OTHER REGULATORY SERVICES UNDER THE ATOMIC ENERGY ACT
OF 1954, AS AMENDED
1. The authority citation for Part 170 continues to read as
follows:
Authority: 31 U.S.C. 9701, 96 Stat. 1051; sec. 301, Pub. L. 92-
314, 86 Stat. 222 (42 U.S.C. 2201w); sec. 201, Pub. L. 93-4381, 88
Stat. 1242, as amended (42 U.S.C. 5841); sec. 205, Pub. L. 101-576,
104 Stat. 2842, (31 U.S.C. 901).
2. In Sec. 170.11, paragraph (a)(5) is revised to read as follows:
Sec. 170.11 Exemptions.
(a) * * *
(5) A construction permit, license, certificate of compliance, or
other [[Page 32239]] approval applied for by, or issued to, a
Government agency, except where the Commission is authorized by statute
to charge such fees.
* * * * *
3. Section 170.20 is revised to read as follows:
Sec. 170.20 Average cost per professional staff-hour.
Fees for permits, licenses, amendments, renewals, special projects,
part 55 requalification and replacement examinations and tests, other
required reviews, approvals, and inspections under Secs. 170.21 and
170.31 that are based upon the full costs for the review or inspection
will be calculated using the following applicable professional staff-
hour rates:
Reactor Program (Sec. 170.21 Activities)......... $123 per hour.
Nuclear Materials and Nuclear Waste Program (Sec. $116 per hour.
170.31 Activities).
4. In Sec. 170.21, the introductory text, Category K, and footnotes
1 and 2 to the table are revised to read as follows:
Sec. 170.21 Schedule of fees for production and utilization
facilities, review of standard referenced design approvals, special
projects, inspections and import and export licenses.
Applicants for construction permits, manufacturing licenses,
operating licenses, import and export licenses, approvals of facility
standard reference designs, requalification and replacement
examinations for reactor operators, and special projects and holders of
construction permits, licenses, and other approvals shall pay fees for
the following categories of services.
Schedule of Facility Fees
[See footnotes at end of table]
------------------------------------------------------------------------
Facility categories and type of fees Fees \1\ \2\
------------------------------------------------------------------------
* * * *
* * *
K. Import and export licenses:
Licenses for the import and export only of
production and utilization facilities or the
import and export only of components for
production and utilization facilities issued
pursuant to 10 CFR part 110:
1. Application for import or export of
reactors and other facilities and components
which must be reviewed by the Commission and
the Executive Branch, for example, actions
under 10 CFR 110.40(b):
Application--New license................... $7,500
Amendment.................................. $7,500
2. Application for import or export of
reactor components and initial exports of
other equipment requiring Executive Branch
review only, for example, those actions
under 10 CFR 110.41(a)(1)-(8):
Application--New license................... $4,600
Amendment.................................. $4,600
3. Application for export of components
requiring foreign government assurances
only:
Application--New license................... $2,900
Amendment.................................. $2,900
4. Application for export or import of other
facility components and equipment not
requiring Commission review, Executive
Branch review, or foreign government
assurances:
Application--New license................... $1,200
Amendment.................................. $1,200
5. Minor amendment of any export or import
license to extend the expiration date,
change domestic information, or make other
revisions which do not require analysis or
review:
Amendment.................................. $120
------------------------------------------------------------------------
\1\ Fees will not be charged for orders issued by the Commission
pursuant to Sec. 2.202 of this chapter or for amendments resulting
specifically from the requirements of these types of Commission
orders. Fees will be charged for approvals issued under a specific
exemption provision of the Commission's regulations under Title 10 of
the Code of Federal Regulations (e.g. Secs. 50.12, 73.5) and any
other sections now or hereafter in effect regardless of whether the
approval is in the form of a license amendment, letter of approval,
safety evaluation report, or other form. Fees for licenses in this
schedule that are initially issued for less than full power are based
on review through the issuance of a full power license (generally full
power is considered 100 percent of the facility's full rated power).
Thus, if a licensee received a low power license or a temporary
license for less than full power and subsequently receives full power
authority (by way of license amendment or otherwise), the total costs
for the license will be determined through that period when authority
is granted for full power operation. If a situation arises in which
the Commission determines that full operating power for a particular
facility should be less than 100 percent of full rated power, the
total costs for the license will be at that determined lower operating
power level and not at the 100 percent capacity.
\2\ Full cost fees will be determined based on the professional staff
time and appropriate contractual support services expended. For
applications currently on file and for which fees are determined based
on the full cost expended for the review, the professional staff hours
expended for the review of the application up to the effective date of
the final rule will be determined at the professional rates in effect
at the time the service was provided. For those applications currently
on file for which review costs have reached an applicable fee ceiling
established by the June 20, 1984, and July 2, 1990, rules but are
still pending completion of the review, the cost incurred after any
applicable ceiling was reached through January 29, 1989, will not be
billed to the applicant. Any professional staff-hours expended above
those ceilings on or after January 30, 1989, will be assessed at the
applicable rates established by Sec. 170.20, as appropriate, except
for topical reports whose costs exceed $50,000. Costs which exceed
$50,000 for any topical report, amendment, revision or supplement to a
topical report completed or under review from January 30, 1989,
through August 8, 1991, will not be billed to the applicant. Any
professional hours expended on or after August 9, 1991, will be
assessed at the applicable rate established in Sec. 170.20. In no
event will the total review costs be less than twice the hourly rate
shown in Sec. 170.20.
* * * * *
5. Section 170.31 is revised to read as follows:
Sec. 170.31 Schedule of fees for materials licenses and other
regulatory services, including inspections, and import and export
licenses.
Applicants for materials licenses, import and export licenses, and
other regulatory services and holders of materials licenses, or import
and export licenses shall pay fees for the following categories of
services. This schedule includes fees for health and safety and
safeguards inspections where applicable.
[[Page 32240]]
Schedule of Materials Fees
[See footnotes at end of table]
------------------------------------------------------------------------
Category of materials licenses and type of fees \1\ Fee \2\ \3\
------------------------------------------------------------------------
1. Special nuclear material:
A. Licenses for possession and use of 200 grams or
more of plutonium in unsealed form or 350 grams
or more of contained U-235 in unsealed form or
200 grams or more of U-233 in unsealed form. This
includes applications to terminate licenses as
well as licenses authorizing possession only:
License, Renewal, Amendment................... Full Cost.
Inspections................................... Full Cost.
B. Licenses for receipt and storage of spent fuel
at an independent spent fuel storage installation
(ISFSI):
License, Renewal, Amendment................... Full Cost.
Inspections................................... Full Cost.
C. Licenses for possession and use of special
nuclear material in sealed sources contained in
devices used in industrial measuring systems,
including x-ray fluorescence analyzers: \4\
Application--New license...................... $530.
Renewal....................................... $720.
Amendment..................................... $290.
D. All other special nuclear material licenses,
except licenses authorizing special nuclear
material in unsealed form in combination that
would constitute a critical quantity, as defined
in Sec. 150.11 of this chapter, for which the
licensee shall pay the same fees as those for
Category 1A: \4\
Application--New license...................... $580.
Renewal....................................... $650.
Amendment..................................... $280.
E. Licenses for construction and operation of a
uranium enrichment facility:
Application................................... $125,000.
License, Renewal, Amendment................... Full Cost.
Inspections................................... Full Cost.
2. Source material:
A. (1) Licenses for possession and use of source
material in recovery operations such as milling,
in-situ leaching, heap-leaching, refining uranium
mill concentrates to uranium hexafluoride, ore
buying stations, ion exchange facilities and in
processing of ores containing source material for
extraction of metals other than uranium or
thorium, including licenses authorizing the
possession of byproduct waste material (tailings)
from source material recovery operations, as well
as licenses authorizing the possession and
maintenance of a facility in a standby mode:
License, Renewal, Amendment................... Full Cost.
Inspections................................... Full Cost.
(2) Licenses that authorize the receipt, from
other persons, of byproduct material as defined
in Section 11e(2) of the Atomic Energy Act for
possession and disposal except those licenses
subject to fees in Category 2.A.(1).
License, renewal, amendment................... Full Cost.
Inspections................................... Full Cost.
(3) Licenses that authorize the receipt, from
other persons, of byproduct material as defined
in Section 11e(2) of the Atomic Energy Act for
possession and disposal incidental to the
disposal of the uranium waste tailings generated
by the licensee's milling operations, except
those licenses subject to the fees in Category
2.A.(1).
License, renewal, amendment................... Full Cost.
Inspections................................... Full Cost.
B. Licenses which authorize the possession, use
and/or installation of source material for
shielding:
Application--New license...................... $150.
Renewal....................................... $170.
Amendment..................................... $230.
C. All other source material licenses:
Application--New license...................... $2,700.
Renewal....................................... $1,500.
Amendment..................................... $400.
3. Byproduct material:
A. Licenses of broad scope for possession and use
of byproduct material issued pursuant to parts 30
and 33 of this chapter for processing or
manufacturing of items containing byproduct
material for commercial distribution:
Application--New license...................... $2,900.
Renewal....................................... $1,900.
Amendment..................................... $530.
B. Other licenses for possession and use of
byproduct material issued pursuant to part 30 of
this chapter for processing or manufacturing of
items containing byproduct material for
commercial distribution:
Application--New license...................... $1,200.
Renewal....................................... $2,400.
Amendment..................................... $560.
C. Licenses issued pursuant to Secs. 32.72,
32.73, and/or 32.74 of this chapter authorizing
the processing or manufacturing and distribution
or redistribution of radiopharmaceuticals,
generators, reagent kits and/or sources and
devices containing byproduct material:
Application--New license...................... $3,900.
Renewal....................................... $3,100.
Amendment..................................... $500.
D. Licenses and approvals issued pursuant to Secs.
32.72, 32.73, and/or 32.74 of this chapter
authorizing distribution or redistribution of
radiopharmaceuticals, generators, reagent kits
and/or sources or devices not involving
processing of byproduct material:
Application--New license...................... $1,500.
Renewal....................................... $480.
[[Page 32241]]
Amendment..................................... $420.
E. Licenses for possession and use of byproduct
material in sealed sources for irradiation of
materials in which the source is not removed from
its shield (self-shielded units):
Application--New license...................... $1,200.
Renewal....................................... $820.
Amendment..................................... $350.
F. Licenses for possession and use of less than
10,000 curies of byproduct material in sealed
sources for irradiation of materials in which the
source is exposed for irradiation purposes. This
category also includes underwater irradiators for
irradiation of materials where the source is not
exposed for irradiation purposes:
Application--New license...................... $1,500.
Renewal....................................... $1,100.
Amendment..................................... $360.
G. Licenses for possession and use of 10,000
curies or more of byproduct material in sealed
sources for irradiation of materials in which the
source is exposed for irradiation purposes. This
category also includes underwater irradiators for
irradiation of materials where the source is not
exposed for irradiation purposes:
Application--New license...................... $5,800.
Renewal....................................... $5,200.
Amendment..................................... $750.
H. Licenses issued pursuant to subpart A of part
32 of this chapter to distribute items containing
byproduct material that require device review to
persons exempt from the licensing requirements of
part 30 of this chapter, except specific licenses
authorizing redistribution of items that have
been authorized for distribution to persons
exempt from the licensing requirements of part 30
of this chapter:
Application--New license...................... $2,300.
Renewal....................................... $2,700.
Amendment..................................... $990.
I. Licenses issued pursuant to subpart A of part
32 of this chapter to distribute items containing
byproduct material or quantities of byproduct
material that do not require device evaluation to
persons exempt from the licensing requirements of
part 30 of this chapter, except for specific
licenses authorizing redistribution of items that
have been authorized for distribution to persons
exempt from the licensing requirements of part 30
of this chapter:
Application--New license...................... $4,300.
Renewal....................................... $2,600.
Amendment..................................... $840.
J. Licenses issued pursuant to subpart B of part
32 of this chapter to distribute items containing
byproduct material that require sealed source and/
or device review to persons generally licensed
under part 31 of this chapter, except specific
licenses authorizing redistribution of items that
have been authorized for distribution to persons
generally licensed under part 31 of this chapter:
Application--New license...................... $1,500.
Renewal....................................... $1,500.
Amendment..................................... $280.
K. Licenses issued pursuant to subpart B of part
32 of this chapter to distribute items containing
byproduct material or quantities of byproduct
material that do not require sealed source and/or
device review to persons generally licensed under
part 31 of this chapter, except specific licenses
authorizing redistribution of items that have
been authorized for distribution to persons
generally licensed under part 31 of this chapter:
Application--New license...................... $1,300.
Renewal....................................... $1,300.
Amendment..................................... $300.
L. Licenses of broad scope for possession and use
of byproduct material issued pursuant to parts 30
and 33 of this chapter for research and
development that do not authorize commercial
distribution:
Application--New license...................... $4,100.
Renewal....................................... $3,300.
Amendment..................................... $640.
M. Other licenses for possession and use of
byproduct material issued pursuant to part 30 of
this chapter for research and development that do
not authorize commercial distribution:
Application--New license...................... $1,500.
Renewal....................................... $1,700.
Amendment..................................... $590.
N. Licenses that authorize services for other
licensees, except:
(1) Licenses that authorize only calibration and/
or leak testing services are subject to the fees
specified in fee Category 3P; and
(2) Licenses that authorize waste disposal
services are subject to the fees specified in fee
Categories 4A, 4B, 4C, and 4D:
Application--New license...................... $1,800.
Renewal....................................... $1,900.
Amendment..................................... $570.
O. Licenses for possession and use of byproduct
material issued pursuant to part 34 of this
chapter for industrial radiography operations:
Application--New license...................... $3,700.
Renewal....................................... $3,000.
Amendment..................................... $700.
P. All other specific byproduct material licenses,
except those in Categories 4A through 9D:
Application--New license...................... $530.
Renewal....................................... $720.
[[Page 32242]]
Amendment..................................... $290.
4. Waste disposal and processing:
A. Licenses specifically authorizing the receipt
of waste byproduct material, source material, or
special nuclear material from other persons for
the purpose of contingency storage or commercial
land disposal by the licensee; or licenses
authorizing contingency storage of low-level
radioactive waste at the site of nuclear power
reactors; or licenses for receipt of waste from
other persons for incineration or other
treatment, packaging of resulting waste and
residues, and transfer of packages to another
person authorized to receive or dispose of waste
material:
License, renewal, amendment................... Full Cost.
Inspections................................... Full Cost.
B. Licenses specifically authorizing the receipt
of waste byproduct material, source material, or
special nuclear material from other persons for
the purpose of packaging or repackaging the
material. The licensee will dispose of the
material by transfer to another person authorized
to receive or dispose of the material:
Application--New license...................... $3,200.
Renewal....................................... $2,300.
Amendment..................................... $390.
C. Licenses specifically authorizing the receipt
of prepackaged waste byproduct material, source
material, or special nuclear material from other
persons. The licensee will dispose of the
material by transfer to another person authorized
to receive or dispose of the material:
Application--New license...................... $1,700.
Renewal....................................... $1,200.
Amendment..................................... $280.
5. Well logging:
A. Licenses for possession and use of byproduct
material, source material, and/or special nuclear
material for well logging, well surveys, and
tracer studies other than field flooding tracer
studies:
Application--New license...................... $3,100.
Renewal....................................... $4,000.
Amendment..................................... $610.
B. Licenses for possession and use of byproduct
material for field flooding tracer studies:
License, renewal, amendment................... Full Cost.
6. Nuclear laundries:
A. Licenses for commercial collection and laundry
of items contaminated with byproduct material,
source material, or special nuclear material:
Application--New license...................... $4,900.
Renewal....................................... $1,900.
Amendment..................................... $770.
7. Human use of byproduct, source, or special nuclear
material:
A. Licenses issued pursuant to parts 30, 35, 40,
and 70 of this chapter for human use of byproduct
material, source material, or special nuclear
material in sealed sources contained in
teletherapy devices:
Application--New license...................... $2,700.
Renewal....................................... $1,400.
Amendment..................................... $450.
B. Licenses of broad scope issued to medical
institutions or two or more physicians pursuant
to parts 30, 33, 35, 40, and 70 of this chapter
authorizing research and development, including
human use of byproduct material, except licenses
for byproduct material, source material, or
special nuclear material in sealed sources
contained in teletherapy devices:
Application--New license...................... $2,900.
Renewal....................................... $5,700.
Amendment..................................... $560.
C. Other licenses issued pursuant to parts 30, 35,
40, and 70 of this chapter for human use of
byproduct material, source material, and/or
special nuclear material, except licenses for
byproduct material, source material, or special
nuclear material in sealed sources contained in
teletherapy devices:
Application--New license...................... $1,300.
Renewal....................................... $1,400.
Amendment..................................... $430.
8. Civil defense:
A. Licenses for possession and use of byproduct
material, source material, or special nuclear
material for civil defense activities:
Application--New license...................... $730.
Renewal....................................... $630.
Amendment..................................... $340.
9. Device, product, or sealed source safety
evaluation:
A. Safety evaluation of devices or products
containing byproduct material, source material,
or special nuclear material, except reactor fuel
devices, for commercial distribution:
Application--each device...................... $3,200.
Amendment--each device........................ $1,200.
B. Safety evaluation of devices or products
containing byproduct material, source material,
or special nuclear material manufactured in
accordance with the unique specifications of, and
for use by, a single applicant, except reactor
fuel devices:
Application--each device...................... $1,600.
Amendment--each device........................ $580.
C. Safety evaluation of sealed sources containing
byproduct material, source material, or special
nuclear material, except reactor fuel, for
commercial distribution:
Application--each source...................... $700.
[[Page 32243]]
Amendment--each source........................ $230.
D. Safety evaluation of sealed sources containing
byproduct material, source material, or special
nuclear material, manufactured in accordance with
the unique specifications of, and for use by, a
single applicant, except reactor fuel:
Application--each source...................... $350.
Amendment--each source........................ $120.
10. Transportation of radioactive material:
A. Evaluation of casks, packages, and shipping
containers:
Approval, Renewal, Amendment.................. Full Cost.
Inspections................................... Full Cost.
B. Evaluation of 10 CFR part 71 quality assurance
programs:
Application--Approval......................... $320.
Renewal....................................... $340.
Amendment..................................... $240.
Inspections................................... Full Cost.
11. Review of standardized spent fuel facilities:
Approval, Renewal, Amendment.................. Full Cost.
Inspections................................... Full Cost.
12. Special projects: \5\
Approvals and preapplication/licensing Full Cost.
activities.
Inspections................................... Full Cost.
13. A. Spent fuel storage cask Certificate of
Compliance:
Approvals..................................... Full Cost.
Amendments, revisions, and supplements........ Full Cost.
Reapproval.................................... Full Cost.
B. Inspections related to spent fuel storage cask:
Certificate of Compliance..................... Full Cost.
C. Inspections related to storage of spent fuel Full Cost.
under Sec. 72.210 of this chapter.
14. Byproduct, source, or special nuclear material
licenses and other approvals authorizing
decommissioning, decontamination, reclamation, or
site restoration activities pursuant to 10 CFR parts
30, 40, 70, and 72 of this chapter:
Approval, Renewal, Amendment.................. Full Cost.
Inspections................................... Full Cost.
15. Import and Export licenses:
Licenses issued pursuant to 10 CFR part 110 of
this chapter for the import and export only of
special nuclear material, source material,
byproduct material, heavy water, tritium, or
nuclear grade graphite:
A. Application for import or export of HEU and
other materials which must be reviewed by the
Commission and the Executive Branch, for example,
those actions under 10 CFR 110.40(b):
Application--new license...................... $7,500.
Amendment..................................... $7,500.
B. Application for import or export of special
nuclear material, heavy water, nuclear grade
graphite, tritium, and source material, and
initial exports of materials requiring Executive
Branch review only, for example, those actions
under 10 CFR 110.41(a)(2)-(8):
Application--new license...................... $4,600.
Amendment..................................... $4,600.
C. Application for export of routine reloads of
LEU reactor fuel and exports of source material
requiring foreign government assurances only:
Application--new license...................... $2,900.
Amendment..................................... $2,900.
D. Application for export or import of other
materials not requiring Commission review,
Executive Branch review or foreign government
assurances:
Application--new license...................... $1,200.
Amendment..................................... $1,200.
E. Minor amendment of any export or import license
to extend the expiration date, change domestic
information or make other revisions which do not
require analysis or review:
Amendment..................................... $120.
16. Reciprocity:
Agreement State licensees who conduct activities
in a non-Agreement State under the reciprocity
provisions of 10 CFR 150.20:
Application (initial filing of Form 241)...... $1,100.
Renewal....................................... N/A.
Revisions..................................... $200.
------------------------------------------------------------------------
\1\ Types of fees--Separate charges, as shown in the schedule, will be
assessed for preapplication consultations and reviews and applications
for new licenses and approvals, issuance of new licenses and
approvals, amendments and renewals to existing licenses and approvals,
safety evaluations of sealed sources and devices, and certain
inspections. The following guidelines apply to these charges:
(a) Application fees--Applications for new materials licenses and
approvals; applications to reinstate expired, terminated or inactive
licenses and approvals except those subject to fees assessed at full
cost; and applications filed by Agreement State licensees to register
under the general license provisions of 10 CFR 150.20, must be
accompanied by the prescribed application fee for each category,
except that:
(1) Applications for licenses covering more than one fee category of
special nuclear material or source material must be accompanied by the
prescribed application fee for the highest fee category; and
(2) Applications for licenses under Category 1E must be accompanied by
an application fee of $125,000.
[[Page 32244]]
(b) License-approval-review fees--Fees for applications for new
licenses and approvals and for preapplication consultations and
reviews subject to full cost fees (fee Categories 1A, 1B, 1E, 2A, 4A,
4D, 5B, 10A, 11, 12, 13A, and 14) are due upon notification by the
Commission in accordance with Sec. 170.12(b), (e), and (f).
(c) Renewal-reapproval fees--Applications for renewal of licenses and
approvals must be accompanied by the prescribed renewal fee for each
category, except that fees for applications for renewal of licenses
and approvals subject to full cost fees (fee Categories 1A, 1B, 1E,
2A, 4A, 4D, 5B, 10A, 11, 12, 13A, and 14) are due upon notification by
the Commission in accordance with Sec. 170.12(d).
(d) Amendment-Revision Fees--
(1) Applications for amendments to licenses and approvals and revisions
to reciprocity initial applications, except those subject to fees
assessed at full costs, must be accompanied by the prescribed
amendment-revision fee for each license-revision affected. An
application for an amendment to a license or approval classified in
more than one fee category must be accompanied by the prescribed
amendment fee for the category affected by the amendment unless the
amendment is applicable to two or more fee categories in which case
the amendment fee for the highest fee category would apply. For those
licenses and approvals subject to full costs (fee Categories 1A, 1B,
1E, 2A, 4A, 4D, 5B, 10A, 11, 12, 13A, and 14), amendment fees are due
upon notification by the Commission in accordance with Sec.
170.12(c).
(2) An application for amendment to a materials license or approval
that would place the license or approval in a higher fee category or
add a new fee category must be accompanied by the prescribed
application fee for the new category.
(3) An application for amendment to a license or approval that would
reduce the scope of a licensee's program to a lower fee category must
be accompanied by the prescribed amendment fee for the lower fee
category.
(4) Applications to terminate licenses authorizing small materials
programs, when no dismantling or decontamination procedure is
required, are not subject to fees.
(e) Inspection fees--Inspections resulting from investigations
conducted by the Office of Investigations and nonroutine inspections
that result from third-party allegations are not subject to fees. The
fees assessed at full cost will be determined based on the
professional staff time required to conduct the inspection multiplied
by the rate established under Sec. 170.20 plus any applicable
contractual support services costs incurred. Inspection fees are due
upon notification by the Commission in accordance with Sec.
170.12(g).
\2\ Fees will not be charged for orders issued by the Commission
pursuant to 10 CFR 2.202 or for amendments resulting specifically from
the requirements of these types of Commission orders. However, fees
will be charged for approvals issued under a specific exemption
provision of the Commission's regulations under Title 10 of the Code
of Federal Regulations (e.g., 10 CFR 30.11, 40.14, 70.14, 73.5, and
any other sections now or hereafter in effect) regardless of whether
the approval is in the form of a license amendment, letter of
approval, safety evaluation report, or other form. In addition to the
fee shown, an applicant may be assessed an additional fee for sealed
source and device evaluations as shown in Categories 9A through 9D.
\3\ Full cost fees will be determined based on the professional staff
time and appropriate contractual support services expended. For those
applications currently on file and for which fees are determined based
on the full cost expended for the review, the professional staff hours
expended for the review of the application up to the effective date of
the final rule will be determined at the professional rates in effect
at the time the service was provided. For applications currently on
file for which review costs have reached an applicable fee ceiling
established by the June 20, 1984, and July 2, 1990, rules, but are
still pending completion of the review, the cost incurred after any
applicable ceiling was reached through January 29, 1989, will not be
billed to the applicant. Any professional staff-hours expended above
those ceilings on or after January 30, 1989, will be assessed at the
applicable rates established by Sec. 170.20, as appropriate, except
for topical reports whose costs exceed $50,000. Costs which exceed
$50,000 for each topical report, amendment, revision, or supplement to
a topical report completed or under review from January 30, 1989,
through August 8, 1991, will not be billed to the applicant. Any
professional hours expended on or after August 9, 1991, will be
assessed at the applicable rate established in Sec. 170.20. The
minimum total review cost is twice the hourly rate shown in Sec.
170.20.
\4\ Licensees paying fees under Categories 1A, 1B, and 1E are not
subject to fees under Categories 1C and 1D for sealed sources
authorized in the same license except in those instances in which an
application deals only with the sealed sources authorized by the
license. Applicants for new licenses or renewal of existing licenses
that cover both byproduct material and special nuclear material in
sealed sources for use in gauging devices will pay the appropriate
application or renewal fee for fee Category 1C only.
\5\ Fees will not be assessed for requests-reports submitted to the NRC:
(a) In response to a Generic Letter or NRC Bulletin that does not
result in an amendment to the license, does not result in the review
of an alternate method or reanalysis to meet the requirements of the
Generic Letter or does not involve an unreviewed safety issue;
(b) In response to an NRC request (at the Associate Office Director
level or above) to resolve an identified safety or environmental
issue, or to assist NRC in developing a rule, regulatory guide, policy
statement, generic letter, or bulletin; or
(c) As a means of exchanging information between industry
organizations and the NRC for the purpose of supporting generic
regulatory improvements or efforts.
PART 171--ANNUAL FEES FOR REACTOR OPERATING LICENSES AND FUEL CYCLE
LICENSES AND MATERIALS LICENSES, INCLUDING HOLDERS OF CERTIFICATES
OF COMPLIANCE, REGISTRATIONS, AND QUALITY ASSURANCE PROGRAM
APPROVALS AND GOVERNMENT AGENCIES LICENSED BY THE NRC
6. The authority citation for Part 171 continues to read as
follows:
Authority: Sec. 7601, Pub. L. 99-272, 100 Stat. 146, as amended
by sec. 5601, Pub. L. 100-203, 101 Stat. 1330, as amended by Sec.
3201, Pub. L. 101-239, 103 Stat. 2106 as amended by sec. 6101, Pub.
L. 101-508, 104 Stat. 1388, (42 U.S.C. 2213); sec. 301, Pub. L. 92-
314, 86 Stat. 222 (42 U.S.C. 2201(w)); sec. 201, 88 Stat. 1242, as
amended (42 U.S.C. 5841); sec. 2903, Pub. L. 102-486, 106 Stat.
3125, (42 U.S.C. 2214 note).
7. Section 171.13 is revised to read as follows:
Sec. 171.13 Notice.
The annual fees applicable to an operating reactor and to a
materials licensee, including a Government agency licensed by the NRC,
subject to this part and calculated in accordance with Secs. 171.15 and
171.16, will be published as a notice in the Federal Register as soon
as is practicable but no later than the third quarter of FY 1996
through 1998. The annual fees will become due and payable to the NRC in
accordance with Sec. 171.19 except as provided in Sec. 171.17.
Quarterly payments of the annual fees of $100,000 or more will continue
during the fiscal year and be based on the applicable annual fees as
shown in Secs. 171.15 and 171.16 of the regulations until a notice
concerning the revised amount of the fees for the fiscal year is
published by Commission.
8. In Sec. 171.15, paragraphs (a), (b)(3), (c)(1), (c)(2), (d), and
(e) are revised to read as follows:
Sec. 171.15 Annual Fees: Reactor operating licenses.
(a) Each person licensed to operate a power, test, or research
reactor shall pay the annual fee for each unit for which the person
holds an operating license at any time during the Federal FY in which
the fee is due, except for those test and research reactors exempted in
Sec. 171.11(a)(1) and (a)(2).
(b) * * *
(3) Generic activities required largely for NRC to regulate power
reactors, e.g., updating part 50 of this chapter, or operating the
Incident Response Center. The base FY 1995 annual fee for each
operating power reactor subject to fees under this section and which
must be collected before September 30, 1995, is $2,427,000. The total
annual fee to be assessed to each operating power reactor which would
include the surcharge for each reactor is shown in paragraph (d) of
this section.
(c)(1) An additional charge will be established and added to the
base [[Page 32245]] annual fee for each operating power reactor to
recover the budgeted costs for the following:
(i) Activities not attributable to an existing NRC licensee or
classes of licensees; e.g., international cooperative safety program
and international safeguards activities; support for the Agreement
State program; site decommissioning management plan (SDMP) activities
and low-level waste disposal generic activities, and
(ii) Activities not currently assessed under 10 CFR part 170
licensing and inspection fees based on existing law or Commission
policy, e.g., reviews and inspections conducted of nonprofit
educational institutions and Federal agencies; activities related to
decommissioning and reclamation and costs that would not be collected
from small entities based on Commission policy in accordance with the
Regulatory Flexibility Act.
(2) The FY 1995 surcharge for each operating power reactor is
$509,000. This amount is calculated by dividing the total cost for
these activities ($55.0 million) by the number of operating power
reactors (108).
* * * * *
(d) The FY 1995 part 171 annual fee for each operating power
reactor, which includes the surcharge in paragraph (c)(2) of this
section, is $2,936,000. Thereafter, annual fees will be assessed in
accordance with Sec. 171.13.
(e) The annual fees for licensees authorized to operate a nonpower
(test and research) reactor licensed under part 50 of this chapter,
except for those reactors exempted from fees under Sec. 171.11(a), are
as follows:
Research reactor............................................ $56,500
Test reactor................................................ $56,500
* * * * *
9. In Sec. 171.16, the introductory text of paragraph (c) and
paragraphs (c)(1), (c)(4), (d), and (e) are revised to read as follows:
Sec. 171.16 Annual Fees: Materials Licensees, Holders of Certificates
of Compliance, Holders of Sealed Source and Device Registrations,
Holders of Quality Assurance Program Approvals and Government agencies
licensed by the NRC.
* * * * *
(c) A licensee who is required to pay an annual fee under this
section may qualify as a small entity. If a licensee qualifies as a
small entity and provides the Commission with the proper certification,
the licensee may pay reduced annual fees for FY 1995 as follows:
------------------------------------------------------------------------
Maximum Annual
fee perlicensed
category
------------------------------------------------------------------------
Small businesses not engaged maximum annual fee in
manufacturing and small per licensed category not-for-
profit organizations (gross annual receipts):
$350,000 to $5 million.............................. $1,800
Less than $350,000.................................. 400
Manufacturing entities that have an average of 500
employees or less:
35 to 500 employees................................. 1,800
Less than 35 employees.............................. 400
Small Governmental Jurisdictions (Including publicly
supported educational institutions) (population)
20,000 to 50,000.................................... 1,800
Less than 20,000.................................... 400
Educational institutions that are not State or
publicly supported, and have 500 employees or less:
35 to 500 employees................................. 1,800
Less than 35 employees.............................. 400
------------------------------------------------------------------------
(1) A licensee qualifies as a small entity if it meets the size
standards established by the NRC (See 10 CFR 2.810).
* * * * *
(4) For FY 1995, the maximum annual fee (base annual fee plus
surcharge) a small entity is required to pay is $1,800 for each
category applicable to the license(s).
(d) The FY 1995 annual fees, including the surcharges shown in
paragraph (e) of this section, for materials licensees and holders of
certificates, registrations or approvals subject to fees under this
section are as follows:
Schedule of Materials Annual Fees and Fees For Government Agencies
Licensed by NRC
[See footnotes at end of table]
Annualfees
Category of materials licenses 1 2 3
1. Special nuclear material:
A. (1) Licenses for possession and
use of U-235 or plutonium for fuel
fabrication activities.
(a) Strategic Special Nuclear
Material:
Babcock & Wilcox............. SNM-42 $2,569,000
Nuclear Fuel Services........ SNM-124 2,569,000
(b) Low Enriched Uranium in
Dispersable Form Used for
Fabrication of Power Reactor
Fuel:
Combustion Engineering SNM-33 1,261,000
(Hematite).
General Electric Company..... SNM-1097 1,261,000
Siemens Nuclear Power........ SNM-1227 1,261,000
Westinghouse Electric Company SNM-1107 1,261,000
(2) All other special nuclear
materials licenses not included in
Category 1.A.(1) which are licensed
for fuel cycle activities.
(a) Facilities with limited
operations:
B&W Fuel Company............. SNM-1168 501,700
(b) All Others:
Babcock & Wilcox............. SNM-414 340,700
General Atomics.............. SNM-696 340,700
General Electric............. SNM-960 340,700
B. Licenses for receipt and storage of spent fuel at
an independent spent fuel storage installation
(ISFSI).............................................. 279,000
C. Licenses for possession and use of special nuclear
material in sealed sources contained in devices used
in industrial measuring systems, including x-ray
fluorescence analyzers............................... 1,300
[[Page 32246]]
D. All other special nuclear material licenses, except
licenses authorizing special nuclear material in
unsealed form in combination that would constitute a
critical quantity, as defined in Sec. 150.11 of this
chapter, for which the licensee shall pay the same
fees as those for Category 1.A.(2)................... 3,000
E. Licenses for the operation of a uranium enrichment
facility............................................. \11\ N/A
2. Source material:
A. (1) Licenses for possession and use of source
material for refining uranium mill concentrates to
uranium hexafluoride................................. 639,200
(2) Licenses for possession and use of source material
in recovery operations such as milling, in-situ
leaching, heap-leaching, ore buying stations, ion
exchange facilities and in processing of ores
containing source material for extraction of metals
other than uranium or thorium, including licenses
authorizing the possession of byproduct waste
material (tailings) from source material recovery
operations, as well as licenses authorizing the
possession and maintenance of a facility in a standby
mode.
Class I facilities \4\............................ 60,900
Class II facilities \4\........................... 34,400
Other facilities \4\.............................. 22,000
(3) Licenses that authorize the receipt, from other
persons, of byproduct material as defined in Section
11e.(2) of the Atomic Energy Act for possession and
disposal, except those licenses subject to the fees
in Category 2.A.(2) or Category 2.A.(4).............. 44,700
(4) Licenses that authorize the receipt, from other
persons, of byproduct material as defined in Section
11e(2) of the Atomic Energy Act for possession and
disposal incidental to the disposal of the uranium
waste tailings generated by the licensee's milling
operations, except those licenses subject to the fees
in Category 2.A.(2).................................. 7,900
B. Licenses which authorize only the possession, use
and/or installation of source material for shielding. 480
C. All other source material licenses................. 8,600
3. Byproduct material:
A. Licenses of broad scope for possession and use of
byproduct material issued pursuant to parts 30 and 33
of this chapter for processing or manufacturing of
items containing byproduct material for commercial
distribution......................................... 16,400
B. Other licenses for possession and use of byproduct
material issued pursuant to part 30 of this chapter
for processing or manufacturing of items containing
byproduct material for commercial distribution....... 5,500
C. Licenses issued pursuant to Secs. 32.72, 32.73,
and-or 32.74 of this chapter authorizing the
processing or manufacturing and distribution or
redistribution of radiopharmaceuticals, generators,
reagent kits and/or sources and devices containing
byproduct material. This category also includes the
possession and use of source material for shielding
authorized pursuant to part 40 of this chapter when
included on the same license......................... 11,100
D. Licenses and approvals issued pursuant to Secs.
32.72, 32.73, and/or 32.74 of this chapter
authorizing distribu tion or redistribution of
radiopharmaceuticals, generators, reagent kits and/or
sources or devices not involving processing of
byproduct material. This category also includes the
possession and use of source material for shielding
authorized pursuant to part 40 of this chapter when
included on the same license......................... 4,400
E. Licenses for possession and use of byproduct
material in sealed sources for irradiation of
materials in which the source is not removed from its
shield (self-shielded units)......................... 3,100
F. Licenses for possession and use of less than 10,000
curies of byproduct material in sealed sources for
irradiation of materials in which the source is
exposed for irradiation purposes. This category also
includes underwater irradiators for irradiation of
materials in which the source is not exposed for
irradiation purposes................................. 3,800
G. Licenses for possession and use of 10,000 curies or
more of byproduct material in sealed sources for
irradiation of materials in which the source is
exposed for irradiation purposes. This category also
includes underwater irradiators for irradiation of
materials in which the source is not exposed for
irradiation purposes................................. 19,400
H. Licenses issued pursuant to subpart A of part 32 of
this chapter to distribute items containing byproduct
material that require device review to persons exempt
from the licensing requirements of part 30 of this
chapter, except specific licenses authorizing
redistribution of items that have been authorized for
distribution to persons exempt from the licensing
requirements of part 30 of this chapter.............. 5,000
I. Licenses issued pursuant to subpart A of part 32 of
this chapter to distribute items containing byproduct
material or quantities of byproduct material that do
not require device evaluation to persons exempt from
the licensing requirements of part 30 of this
chapter, except for specific licenses authorizing
redistribution of items that have been authorized for
distribution to persons exempt from the licensing
requirements of part 30 of this chapter.............. 8,800
J. Licenses issued pursuant to subpart B of part 32 of
this chapter to distribute items containing byproduct
material that require sealed source and/or device
review to persons generally licensed under part 31 of
this chapter, except specific licenses authorizing
redistribution of items that have been authorized for
distribution to persons generally licensed under part
31 of this chapter................................... 3,700
K. Licenses issued pursuant to subpart B of part 31 of
this chapter to distribute items containing byproduct
material or quantities of byproduct material that do
not require sealed source and/or device review to
persons generally licensed under part 31 of this
chapter, except specific licenses authorizing
redistribution of items that have been authorized for
distribution to persons generally licensed under part
31 of this chapter................................... 3,200
L. Licenses of broad scope for possession and use of
byproduct material issued pursuant to parts 30 and 33
of this chapter for research and development that do
not authorize commercial distribution................ 12,100
M. Other licenses for possession and use of byproduct
material issued pursuant to part 30 of this chapter
for research and development that do not authorize
commercial distribution.............................. 5,400
N. Licenses that authorize services for other
licensees, except:
(1) Licenses that authorize only calibration and/
or leak testing services are subject to the fees
specified in fee Category 3P; and
(2) Licenses that authorize waste disposal
services are subject to the fees specified in fee
Categories 4A, 4B, 4C, and 4D.................... 6,000
O. Licenses for possession and use of byproduct
material issued pursuant to part 34 of this chapter
for industrial radiography operations. This category
also includes the possession and use of source
material for shielding authorized pursuant to part 40
of this chapter when authorized on the same license.. 13,900
P. All other specific byproduct material licenses,
except those in Categories 4A through 9D............. 1,700
[[Page 32247]]
4. Waste disposal and processing:
A. Licenses specifically authorizing the receipt of
waste byproduct material, source material, or special
nuclear material from other persons for the purpose
of contingency storage or commercial land disposal by
the licensee; or licenses authorizing contingency
storage of low-level radioactive waste at the site of
nuclear power reactors; or licenses for receipt of
waste from other persons for incineration or other
treatment, packaging of resulting waste and residues,
and transfer of packages to another person authorized
to receive or dispose of waste material.............. \5\ 100,900
B. Licenses specifically authorizing the receipt of
waste byproduct material, source material, or special
nuclear material from other persons for the purpose
of packaging or repackaging the material. The
licensee will dispose of the material by transfer to
another person authorized to receive or dispose of
the material......................................... 14,300
C. Licenses specifically authorizing the receipt of
prepackaged waste byproduct material, source
material, or special nuclear material from other
persons. The licensee will dispose of the material by
transfer to another person authorized to receive or
dispose of the material.............................. 7,600
5. Well logging:
A. Licenses for possession and use of byproduct
material, source material, and/or special nuclear
material for well logging, well surveys, and tracer
studies other than field flooding tracer studies..... 8,100
B. Licenses for possession and use of byproduct
material for field flooding tracer studies........... 13,000
6. Nuclear laundries:
A. Licenses for commercial collection and laundry of
items contaminated with byproduct material, source
material, or special nuclear material................ 14,500
7. Human use of byproduct, source, or special nuclear
material.
A. Licenses issued pursuant to parts 30, 35, 40, and
70 of this chapter for human use of byproduct
material, source material, or special nuclear
material in sealed sources contained in teletherapy
devices. This category also includes the possession
and use of source material for shielding when
authorized on the same license....................... 10,200
B. Licenses of broad scope issued to medical
institutions or two or more physicians pursuant to
parts 30, 33, 35, 40, and 70 of this chapter
authorizing research and development, including human
use of byproduct material except licenses for
byproduct material, source material, or special
nuclear material in sealed sources contained in
teletherapy devices. This category also includes the
possession and use of source material for shielding
when authorized on the same license \9\.............. 23,200
C. Other licenses issued pursuant to parts 30, 35, 40,
and 70 of this chapter for human use of byproduct
material, source material, and/or special nuclear
material except licenses for byproduct material,
source material, or special nuclear material in
sealed sources contained in teletherapy devices. This
category also includes the possession and use of
source material for shielding when authorized on the
same license \9\..................................... 4,600
8. Civil defense:
A. Licenses for possession and use of byproduct
material, source material, or special nuclear
material for civil defense activities................ 1,800
9. Device, product, or sealed source safety evaluation:
A. Registrations issued for the safety evaluation of
devices or products containing byproduct material,
source material, or special nuclear material, except
reactor fuel devices, for commercial distribution.... 7,100
B. Registrations issued for the safety evaluation of
devices or products containing byproduct material,
source material, or special nuclear material
manufactured in accordance with the unique
specifications of, and for use by, a single
applicant, except reactor fuel devices............... 3,700
C. Registrations issued for the safety evaluation of
sealed sources containing byproduct material, source
material, or special nuclear material, except reactor
fuel, for commercial distribution.................... 1,500
D. Registrations issued for the safety evaluation of
sealed sources containing byproduct material, source
material, or special nuclear material, manufactured
in accordance with the unique specifications of, and
for use by, a single applicant, except reactor fuel.. 770
10. Transportation of radioactive material:
A. Certificates of Compliance or other package
approvals issued for design of casks, packages, and
shipping containers.
Spent Fuel, High-Level Waste, and plutonium air
packages......................................... \6\ N/A
Other Casks...................................... \6\ N/A
B. Approvals issued of 10 CFR part 71 quality
assurance programs.
Users and Fabricators............................. 77,800
Users............................................. 1,000
11. Standardized spent fuel facilities.................... \6\ N/A
12. Special Projects...................................... \6\ N/A
13. A. Spent fuel storage cask Certificate of Compliance.. \6\ N/A
B. General licenses for storage of spent fuel under 10
CFR 72.210........................................... 279,000
14. Byproduct, source, or special nuclear material
licenses and other approvals authorizing decommissioning,
decontamination, reclamation, or site restoration
activities pursuant to 10 CFR parts 30, 40, 70, and 72... \7\ N/A
15. Import and Export licenses............................ \8\ N/A
16. Reciprocity........................................... \8\ N/A
17. Master materials licenses of broad scope issued to
Government agencies...................................... 415,300
18. Department of Energy:
A. Certificates of Compliance......................... \10\ 1,200,0
00
B. Uranium Mill Tailing Radiation Control Act (UMTRCA)
activities........................................... 1,937,000
\1\ Annual fees will be assessed based on whether a licensee held,
during the fiscal year, a valid license with the NRC authorizing
possession and use of radioactive material. However, the annual fee is
waived for those materials licenses and holders of certificates,
registrations, and approvals who either filed for termination of their
licenses or approvals or filed for possession only/storage licenses
prior to October 1, 1994 and permanently ceased licensed activities
entirely by September 30, 1994. Annual fees for licensees who filed
for termination of a license, downgrade of a license, or for a POL
during the fiscal year and for new licenses issued during the fiscal
year will be prorated in accordance with the provisions of Sec.
171.17. If a person holds more than one license, certificate,
registration, or approval, the annual fee(s) will be assessed for each
license, certificate, registration, or approval held by that person.
For licenses that authorize more than one activity on a single license
(e.g., human use and irradiator activities), annual fees will be
assessed for each category applicable to the license. Licensees paying
annual fees under Category 1.A.(1). are not subject to the annual fees
of Category 1.C and 1.D for sealed sources authorized in the license.
\2\ Payment of the prescribed annual fee does not automatically renew
the license, certificate, registration, or approval for which the fee
is paid. Renewal applications must be filed in accordance with the
requirements of parts 30, 40, 70, 71, or 72 of this chapter.
\3\ For FYs 1996 through 1998, fees for these materials licenses will be
calculated and assessed in accordance with Sec. 171.13 and will be
published in the Federal Register for notice and comment.
[[Page 32248]]
\4\ A Class I license includes mill licenses issued for the extraction
of uranium from uranium ore. A Class II license includes solution
mining licenses (in-situ and heap leach) issued for the extraction of
uranium from uranium ores including research and development licenses.
An ``other'' license includes licenses for extraction of metals, heavy
metals, and rare earths.
\5\ Two licenses have been issued by NRC for land disposal of special
nuclear material. Once NRC issues a LLW disposal license for byproduct
and source material, the Commission will consider establishing an
annual fee for this type of license.
\6\ Standardized spent fuel facilities, part 71 and 72 Certificates of
Compliance, and special reviews, such as topical reports, are not
assessed an annual fee because the generic costs of regulating these
activities are primarily attributable to the users of the designs,
certificates, and topical reports.
\7\ Licensees in this category are not assessed an annual fee because
they are charged an annual fee in other categories while they are
licensed to operate.
\8\ No annual fee is charged because it is not practical to administer
due to the relatively short life or temporary nature of the license.
\9\ Separate annual fees will not be assessed for pacemaker licenses
issued to medical institutions who also hold nuclear medicine licenses
under Categories 7B or 7C.
\10\ This includes Certificates of Compliance issued to DOE that are not
under the Nuclear Waste Fund.
\11\ No annual fee has been established because there are currently no
licensees in this particular fee category.
(e) A surcharge is added for each category for which a base annual
fee is required. The surcharge consists of the following:
(1) To recover costs relating to LLW disposal generic activities,
an additional charge of $48,000 has been added to fee Categories
1.A.(1), 1.A.(2) and 2.A.(1); an additional charge of $1,400 has been
added to fee Categories 1.B., 1.D., 2.C., 3.A., 3.B., 3.C., 3.L., 3.M.,
3.N., 4.A., 4.B., 4.C., 4.D., 5.B., 6.A., and 7.B.; and an additional
charge of $21,000 has been added to fee Category 17.
(2) To recover those budgeted costs that are not directly or solely
attributable to materials licensees and holders of certificates,
registrations or approvals, a surcharge has been added for the
following:
(i) Activities not attributable to an existing NRC licensee or
classes of licensees; e.g., international cooperative safety program
and international safeguards activities; support for the Agreement
State program; site decommissioning management plan (SDMP) activities
and
(ii) Activities not currently assessed under 10 CFR Part 170
licensing and inspection fees based on existing law or Commission
policy, e.g., reviews and inspections conducted of nonprofit
educational institutions and Federal agencies; activities related to
decommissioning and reclamation and costs that would not be collected
from small entities based on Commission policy in accordance with the
Regulatory Flexibility Act.
* * * * *
10. In Sec. 171.17, paragraph (b) is revised to read as follows:
Sec. 171.17 Proration.
* * * * *
(b) Materials licenses (including fuel cycle licenses). (1) New
licenses and terminations. The annual fee for a materials license that
is subject to fees under this part and issued on or after October 1 of
the FY is prorated on the basis of when the NRC issues the new license.
New licenses issued during the period October 1 through March 31 of the
FY will be assessed one-half the annual fee for that FY. New licenses
issued on or after April 1 of the FY will not be assessed an annual fee
for that FY. Thereafter, the full fee is due and payable each
subsequent FY. The annual fee will be prorated for licenses for which a
termination request or a request for a POL has been received on or
after October 1 of a FY on the basis of when the application for
termination or POL is received by the NRC provided the licensee
permanently ceased licensed activities during the specified period.
Licenses for which applications for termination or POL are filed during
the period October 1 through March 31 of the FY are assessed one-half
the annual fee for the applicable category(ies) for that FY. Licenses
for which applications for termination or POL are filed on or after
April 1 of the FY are assessed the full annual fee for that FY.
(2) Downgraded licenses. (i) The annual fee for a materials
license that is subject to fees under this part and downgraded on or
after October 1 of a FY is prorated upon request by the licensee on the
basis of when the application for downgrade is received by the NRC
provided the licensee permanently ceased the stated activities during
the specified period. Requests for proration must be filed with the NRC
within 90 days from the effective date of the final rule establishing
the annual fees for which a proration is sought. Absent extraordinary
circumstances, any request for proration of the annual fee for a
downgraded license filed beyond that date will not be considered.
(ii) Annual fees for licenses for which applications to downgrade
are filed during the period October 1 through March 31 of the FY will
be prorated as follows:
(A) Licenses for which applications have been filed to reduce the
scope of the license from a higher fee category(ies) to a lower fee
category(ies) will be assessed one-half the annual fee for the higher
fee category(ies) and one-half the annual fee for the lower fee
category(ies), and, if applicable, the full annual fee for fee
categories not affected by the downgrade; and
(B) Licenses with multiple fee categories for which applications
have been filed to downgrade by deleting a fee category will be
assessed one-half the annual fee for the fee category being deleted and
the full annual fee for the remaining categories.
(iii) Licenses for which applications for downgrade are filed on or
after April 1 of the FY are assessed the full fee for that FY.
11. In Sec. 171.19, paragraphs (b) and (c) are revised to read as
follows:
Sec. 171.19 Payment.
* * * * *
(b) For FY 1995 through FY 1998, the Commission will adjust the
fourth quarterly bill for operating power reactors and certain
materials licensees to recover the full amount of the revised annual
fee. If the amounts collected in the first three quarters exceed the
amount of the revised annual fee, the overpayment will be refunded. The
NRC will also adjust the FY 1995 annual fee bills to reflect a credit
for any payments received for those FY 1995 inspection costs that are
included in the FY 1995 annual fee. All other licensees, or holders of
a certificate, registration, or approval of a QA program will be sent a
bill for the full amount of the annual fee upon publication of the
final rule. Payment is due on the effective date of the final rule and
interest accrues from the effective date of the final rule. However,
interest will be waived if payment is received within 30 days from the
effective date of the final rule.
(c) For FYs 1995 through 1998, annual fees in the amount of
$100,000 or more and described in the Federal Register notice pursuant
to Sec. 171.13 must be paid in quarterly installments of 25 percent as
billed by the NRC. The quarters begin on October 1, January 1, April 1,
and July 1 of each fiscal year. Annual fees of less than $100,000 must
be paid once a year as billed by the NRC.
Dated at Rockville, Maryland, this 12th day of June, 1995.
[[Page 32249]] For the Nuclear Regulatory Commission.
James M. Taylor,
Executive Director for Operations.
Appendix A to this Final Rule Regulatory Flexibility Analysis for the
Amendments to 10 CFR Part 170 (License Fees) and 10 CFR Part 171
(Annual Fees)
I. Background
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
establishes as a principle of regulatory practice that agencies
endeavor to fit regulatory and informational requirements,
consistent with applicable statutes, to a scale commensurate with
the businesses, organizations, and government jurisdictions to which
they apply. To achieve this principle, the Act requires that
agencies consider the impact of their actions on small entities. If
the agency cannot certify that a rule will not significantly impact
a substantial number of small entities, then a regulatory
flexibility analysis is required to examine the impacts on small
entities and the alternatives to minimize these impacts.
To assist in considering these impacts under the Regulatory
Flexibility Act (RFA), first the NRC adopted size standards for
determining which NRC licensees qualify as small entities (50 FR
50241; December 9, 1985). These size standards were clarified
November 6, 1991 (56 FR 56672). On April 7, 1994 (59 FR 16513), the
Small Business Administration (SBA) issued a final rule changing its
size standards. The SBA adjusted its receipts-based size standards
levels to mitigate the effects of inflation from 1984 to 1994. On
November 30, 1994 (59 FR 61293), the NRC published a proposed rule
to amend its size standards. The NRC proposed to adjust its
receipts-based size standards from $3.5 million to $5 million to
accommodate inflation and to conform to the SBA final rule. The NRC
also proposed to eliminate the separate $1 million size standard for
private practice physicians and to apply a receipts-based size
standard of $5 million to this class of licensees. This mirrors the
revised SBA standard of $5 million for medical practitioners. The
NRC also proposed to establish 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 hold an NRC license. After evaluating the two
comments received, a final rule that would revise the NRC's size
standards as proposed was developed and approved by the SBA on March
24, 1995. The NRC published the final rule revising its size
standards on April 11, 1995 (60 FR 18344). The revised standards
became effective May 11, 1995. The NRC has used the revised
standards in the final FY 1995 fee rule. The small entity fee
categories in Sec. 171.16(c) of the final rule reflect the changes
in the NRC's size standards. A new maximum small entity fee for
manufacturing industries with 35 to 500 employees has been
established at $1,800 and a lower-tier small entity fee of $400
established for those manufacturing industries with less than 35
employees. The lower-tier receipts-based threshold of $250,000 has
been raised to $350,000 to reflect approximately the same percentage
adjustment as that made by the SBA when they adjusted the receipts-
based standard from $3.5 million to $5 million. The NRC believes
that these actions will reduce the impact of annual fees on small
businesses. The NRC size standards are codified at 10 CFR 2.810.
Public Law 101-508, the Omnibus Budget Reconciliation Act of
1990 (OBRA-90), requires that the NRC recover approximately 100
percent of its budget authority, less appropriations from the
Nuclear Waste Fund, for Fiscal Years (FY) 1991 through 1995 by
assessing license and annual fees. OBRA-90 was amended in 1993 to
extend the 100 percent recovery requirement for NRC through 1998.
For FY 1991, the amount for collection was approximately $445.3
million; for FY 1992, approximately $492.5 million; for FY 1993
about $518.9 million; for FY 1994 about $513 million and the amount
to be collected in FY 1995 is approximately $503.6 million.
To comply with OBRA-90, the Commission amended its fee
regulations in 10 CFR parts 170 and 171 in FY 1991 (56 FR 31472;
July 10, 1991) in FY 1992, (57 FR 32691; July 23, 1992) in FY 1993
(58 FR 38666; July 20, 1993) and in FY 1994 (59 FR 36895; July 20,
1994) based on a careful evaluation of over 1,000 comments. These
final rules established the methodology used by NRC in identifying
and determining the fees assessed and collected in FY 1991, FY 1992,
FY 1993 and FY 1994. The NRC has used the same methodology
established in the FY 1991, FY 1992, FY 1993, and FY 1994
rulemakings to establish the fees to be assessed for FY 1995 with
the following exceptions: (1) The Commission has reinstated the
annual fee exemption for nonprofit educational institutions; (2) in
the FY 1994 final rule, the NRC directly assigned additional effort
to the reactor and materials programs for the Office of
Investigations, the Office of Enforcement, the Advisory Committee on
Reactor Safeguards, and the Advisory Committee on Nuclear Waste; and
(3) for FY 1995, the NRC is using cost center concepts, now being
used for budgeting purposes, to develop the fees. The NRC is also
(1) changing the method for allocating the budgeted costs (about $56
million) that cause fairness and equity concerns; (2) eliminating
the materials ``flat'' inspection fees in 10 CFR 170.31 and
including the inspections with the annual fees in 10 CFR 171.16(d);
and (3) establishing two professional hourly rates to better align
the budgeted costs with the major classes of licensees. The
methodology for assessing low-level waste (LLW) costs was changed in
FY 1993 based on the U.S. Court of Appeals decision dated March 16,
1993 (988 F.2d 146 (D.C. Cir. 1993)). The FY 1993 LLW allocation
method has been continued in the FY 1995 final rule.
II. Impact on Small Entities.
The comments received on the proposed FY 1991, FY 1992, FY 1993,
and FY 1994 fee rule revisions and the small entity certifications
received in response to the final FY 1991, FY 1992, FY 1993, and FY
1994 fee rules indicate that NRC licensees qualifying as small
entities under the NRC's size standards are primarily those licensed
under the NRC's materials program. Therefore, this analysis will
focus on the economic impact of the annual fees on materials
licensees.
The Commission's fee regulations result in substantial fees
being charged to those individuals, organizations, and companies
that are licensed under the NRC materials program. Of these
materials licensees, about 18 percent (approximately 1,300
licensees) have requested small entity certification in the past. In
FY 1993, the NRC conducted a survey of its materials licensees. The
results of this survey indicated that about 25 percent of these
licensees could qualify as small entities under the current NRC size
standards.
The commenters on the FY 1991, FY 1992, FY 1993, and FY 1994
proposed fee rules indicated the following results if the proposed
annual fees were not modified:
--Large firms would gain an unfair competitive advantage over small
entities. One commenter noted that a small well-logging company (a
``Mom and Pop'' type of operation) would find it difficult to absorb
the annual fee, while a large corporation would find it easier.
Another commenter noted that the fee increase could be more easily
absorbed by a high-volume nuclear medicine clinic. A gauge licensee
noted that, in the very competitive soils testing market, the annual
fees would put it at an extreme disadvantage with its much larger
competitors because the proposed fees would be the same for a two-
person licensee as for a large firm with thousands of employees.
--Some firms would be forced to cancel their licenses. One
commenter, with receipts of less than $500,000 per year, stated that
the proposed rule would, in effect, force it to relinquish its soil
density gauge and license, thereby reducing its ability to do its
work effectively. Another commenter noted that the rule would force
the company and many other small businesses to get rid of the
materials license altogether. Commenters stated that the proposed
rule would result in about 10 percent of the well-logging licensees
terminating their licenses immediately and approximately 25 percent
terminating their licenses before the next annual assessment.
--Some companies would go out of business. One commenter noted that
the proposal would put it, and several other small companies, out of
business or, at the very least, make it hard to survive.
--Some companies would have budget problems. Many medical licensees
commented that, in these times of slashed reimbursements, the
proposed increase of the existing fees and the introduction of
additional fees would significantly affect their budgets. Another
noted that, in view of the cuts by Medicare and other third party
carriers, the fees would produce a hardship and some facilities
would experience a great deal of difficulty in meeting this
additional burden.
Over the past four years, approximately 2,900 license, approval,
and registration terminations have been requested. Although
[[Page 32250]] some of these terminations were requested because the
license was no longer needed or licenses or registrations could be
combined, indications are that other termination requests were due
to the economic impact of the fees.
The NRC continues to receive written and oral comments from
small materials licensees. These commenters previously indicated
that the $3.5 million threshold for small entities was not
representative of small businesses with gross receipts in the
thousands of dollars. These commenters believe that the $1,800
maximum annual fee represents a relatively high percentage of gross
annual receipts for these ``Mom and Pop'' type businesses.
Therefore, even the reduced annual fee could have a significant
impact on the ability of these types of businesses to continue to
operate.
To alleviate the continuing significant impact of the annual
fees on a substantial number of small entities, the NRC considered
alternatives, in accordance with the RFA. These alternatives were
evaluated in the FY 1991 rule (56 FR 31472; July 10, 1991) in the FY
1992 rule (57 FR 32691; July 23, 1992), in the FY 1993 rule (58 FR
38666; July 20, 1993) and in the FY 1994 rule (59 FR 36895; July 20,
1994). The alternatives considered by the NRC can be summarized as
follows:
--Base fees on some measure of the amount of radioactivity possessed
by the licensee (e.g., number of sources).
--Base fees on the frequency of use of the licensed radioactive
material (e.g., volume of patients).
--Base fees on the NRC size standards for small entities.
The NRC has reexamined the FY 1991, FY 1992, FY 1993, and FY
1994 evaluation of the these alternatives. Based on that
reexamination, the NRC continues to believe that establishment of a
maximum fee for small entities is the most appropriate option to
reduce the impact on small entities.
The NRC established, and is continuing for FY 1995, a maximum
annual fee for small entities. The RFA and its implementing guidance
do not provide specific guidelines on what constitutes a significant
economic impact on a small entity. Therefore, the NRC has no
benchmark to assist it in determining the amount or the percent of
gross receipts that should be charged to a small entity. For FY
1995, the NRC will rely on the analysis previously completed that
established a maximum annual fee for a small entity and the amount
of cost that must be recovered from other NRC licensees as a result
of establishing the maximum annual fees. The NRC continues to
believe that license fees, or any adjustments to these fees during
the past year, do not have a significant impact on small entities.
In issuing this final rule for FY 1995, the NRC concludes that the
materials license fees do not have a significant impact on a
substantial number of small entities and that the maximum annual
small entity fee of $1,800 be continued.
By maintaining the maximum annual fee for small entities at
$1,800, the annual fee for many small entities is reduced while at
the same time materials licensees, including small entities, pay for
most of the FY 1995 costs ($27 million of the total $33 million)
attributable to them. The costs not recovered from small entities
are allocated to other materials licensees and to operating power
reactors. However, the amount that must be recovered from other
licensees as a result of maintaining the maximum annual fee is not
expected to increase. Therefore, the NRC is continuing, for FY 1995,
the maximum annual fee (base annual fee plus surcharge) for certain
small entities at $1,800 for each fee category covered by each
license issued to a small entity.
While reducing the impact on many small entities, the Commission
agrees that the maximum annual fee of $1,800 for small entities,
when added to the Part 170 license fees, may continue to have a
significant impact on materials licensees with annual gross receipts
in the thousands of dollars. Therefore, as in FY 1992, FY 1993, and
FY 1994, the NRC is continuing the lower-tier small entity annual
fee of $400 for small entities with relatively low gross annual
receipts. The lower-tier small entity fee of $400 also applies to
manufacturing concerns and educational institutions not State or
publicly supported with less than 35 employees. This lower-tier
small entity fee was first established in the final rule published
in the Federal Register on April 17, 1992 (57 FR 13625) and would
now include manufacturing companies with a relatively small number
of employees.
In establishing the annual fee for lower-tier small entities,
the NRC continues to retain a balance between the objectives of the
RFA and OBRA-90. This balance can be measured by: (1) The amount of
costs attributable to small entities that is transferred to larger
entities (the small entity subsidy); (2) the total annual fee small
entities pay, relative to this subsidy; and (3) how much the annual
fee is for a lower-tier small entity. Based on this final rule, the
amount of the FY 1995 small entity subsidy is lower than that for FY
1994. Thus, no change is being made.
III. Summary
The NRC has determined the annual fee significantly impacts a
substantial number of small entities. A maximum fee for small
entities strikes a balance between the requirement to collect 100
percent of the NRC budget and the requirement to consider means of
reducing the impact of the fee on small entities. On the basis of
its regulatory flexibility analyses, the NRC concludes that a
maximum annual fee of $1,800 for small entities and a lower-tier
small entity annual fee of $400 for small businesses and not-for-
profit organizations with gross annual receipts of less than
$350,000, small governmental jurisdictions with a population of less
than 20,000, small manufacturing entities that have less than 35
employees and educational institutions that are not State or
publicly supported and have less than 35 employees reduces the
impact on small entities. At the same time, these reduced annual
fees are consistent with the objectives of OBRA-90. Thus, the
revised fees for small entities maintain a balance between the
objectives of OBRA-90 and the RFA. The NRC has used the methodology
and procedures developed for the FY 1991, FY 1992, FY 1993, and FY
1994 fee rules in this final rule except those noted in Section III,
in establishing the FY 1995 fees. Therefore, the analysis and
conclusions established in the FY 1991, FY 1992, FY 1993, and FY
1994 rules remain valid for this final rule for FY 1995.
[FR Doc. 95-14879 Filed 6-19-95; 8:45 am]
BILLING CODE 7590-01-P