[Federal Register Volume 70, Number 34 (Tuesday, February 22, 2005)]
[Proposed Rules]
[Pages 8678-8703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-3128]
[[Page 8677]]
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Part III
Nuclear Regulatory Commission
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10 CFR Parts 170 and 171
Revision of Fee Schedules; Fee Recovery for FY 2005; Proposed Rule
Federal Register / Vol. 70 , No. 34 / Tuesday, February 22, 2005 /
Proposed Rules
[[Page 8678]]
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 170 and 171
RIN 3150-AH61
Revision of Fee Schedules; Fee Recovery for FY 2005
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend
the licensing, inspection, and annual fees charged to its applicants
and licensees. The proposed amendments are necessary to implement the
Omnibus Budget Reconciliation Act of 1990 (OBRA-90), as amended, which
requires that the NRC recover approximately 90 percent of its budget
authority in fiscal year (FY) 2005, less the amounts appropriated from
the Nuclear Waste Fund (NWF). The total amount to be recovered for FY
2005 is approximately $540.7 million. After accounting for carryover
and billing adjustments, the net amount to be recovered through fees is
approximately $538 million.
DATES: The comment period expires March 24, 2005. Comments received
after this date will be considered if it is practical to do so, but the
NRC is able to ensure only that comments received on or before this
date will be considered. Because OBRA-90 requires that the NRC collect
the FY 2005 fees by September 30, 2005, requests for extensions of the
comment period will not be granted.
ADDRESSES: You may submit comments by any one of the following methods.
Please include number RIN 3150-AH61 in the subject line of your
comments. Comments on rulemakings submitted in writing or in electronic
form will be made available to the public in their entirety on the NRC
rulemaking Web site. Personal information will not be removed from your
comments.
Mail comments to: Secretary, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, Attn: Rulemakings and Adjudications Staff.
E-mail comments to: [email protected]. If you do not receive a reply e-
mail confirming that we have received your comments, contact us
directly at (301) 415-1966. You may also submit comments via the NRC's
rulemaking Web site at http://ruleforum.llnl.gov. Address questions
about our Web site to Ms. Carol Gallagher, (301) 415-5905; e-mail
[email protected]. Comments can also be submitted via the Federal eRulemaking
Portal at http://www.regulations.gov.
Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland
20852, between 7:30 a.m. and 4:15 p.m. Federal workdays. (Telephone
(301) 415-1966).
Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at
(301) 415-1101.
Publicly available documents related to this rulemaking may be
viewed electronically on the public computers located at the NRC's
Public Document Room (PDR), Room O1 F21, One White Flint North, 11555
Rockville Pike, Rockville, Maryland. The PDR reproduction contractor
will copy documents for a fee. Selected documents, including comments,
may be viewed and downloaded electronically via the NRC rulemaking Web
site at http://ruleforum.llnl.gov.
Publicly available documents created or received at the NRC after
November 1, 1999, are available electronically at the NRC's Electronic
Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this
site, the public can gain entry into the NRC's Agencywide Documents
Access and Management System (ADAMS), which provides text and image
files of NRC's public documents. If you do not have access to ADAMS or
if there are problems in accessing the documents located in ADAMS,
contact the NRC PDR Reference staff at 1-800-397-4209; (301) 415-4737
or by e-mail at [email protected].
FOR FURTHER INFORMATION CONTACT: Tammy Croote, telephone (301) 415-
6041; Office of the Chief Financial Officer, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001.
SUPPLEMENTARY INFORMATION:
I. Background
II. Proposed Action
III. Plain Language
IV. Voluntary Consensus Standards
V. Environmental Impact: Categorical Exclusion
VI. Paperwork Reduction Act Statement
VII. Regulatory Analysis
VIII. Regulatory Flexibility Analysis
IX. Backfit Analysis
I. Background
For FYs 1991 through 2000, OBRA-90, as amended, required that the
NRC recover approximately 100 percent of its budget authority, less the
amount appropriated from the U.S. Department of Energy (DOE)
administered NWF, by assessing fees. To address fairness and equity
concerns raised by the NRC related to charging NRC license holders for
agency budgeted costs that do not provide a direct benefit to the
licensee, the FY 2001 Energy and Water Development Appropriations Act
amended OBRA-90 to decrease the NRC's fee recovery amount by 2 percent
per year beginning in FY 2001, until the fee recovery amount is 90
percent in FY 2005. As a result, the NRC is required to recover
approximately 90 percent of its FY 2005 budget authority, less the
amounts appropriated from the NWF, through fees. In the Consolidated
Appropriations Act of 2005 (Pub. L. 108-447), as adjusted by the
rescission discussed in Section 122(a), Congress appropriated $669.3
million to the NRC for FY 2005. This sum includes $68.5 million
appropriated from the NWF. The total amount NRC is required to recover
in fees for FY 2005 is approximately $540.7 million. After accounting
for carryover and billing adjustments, the net amount to be recovered
through fees is approximately $538 million.
While the total amount that the NRC must recover in fees in FY 2005
has been determined by Congress and, therefore, is outside the scope of
this rulemaking, the NRC notes that it has supported previous
legislative efforts to remove additional costs from the fee base and
continues to do so. In the 2003 Congressional session, an Energy Policy
Bill (H.R. 6) was introduced that would have amended OBRA-90 to remove
many homeland security costs from the fee base (except homeland
security costs associated with fingerprinting, background checks, and
security inspections). In its August 29, 2003, letter to the House
Committee on Energy and Commerce, the Commission supported the fee
recovery provisions of this bill. The NRC continues to support
legislative efforts to remove homeland security costs from the fee
base.
The NRC assesses two types of fees to meet the requirements of
OBRA-90, as amended. First, license and inspection fees, established in
10 CFR part 170 under the authority of the Independent Offices
Appropriation Act of 1952 (IOAA), 31 U.S.C. 9701, recover the NRC's
costs of providing special benefits to identifiable applicants and
licensees. Examples of the services provided by the NRC for which these
fees are assessed are the review of applications for new licenses and,
for certain types of existing licenses, the review of renewal
applications, the review of amendment requests, and inspections.
Second, annual fees established in 10 CFR part 171 under the authority
of OBRA-90, recover generic and other regulatory costs not otherwise
recovered through 10 CFR part 170 fees.
[[Page 8679]]
II. Proposed Action
The NRC is proposing to amend its licensing, inspection, and annual
fees to recover approximately 90 percent of its FY 2005 budget
authority less the appropriations received from the NWF. The NRC's
total budget authority for FY 2005 is $669.3 million, of which
approximately $68.5 million has been appropriated from the NWF. Based
on the 90 percent fee recovery requirement, the NRC must recover
approximately $540.7 million in FY 2005 through part 170 licensing and
inspection fees, part 171 annual fees, and other offsetting receipts.
The total amount to be recovered through fees and other offsetting
receipts for FY 2005 is $4.6 million less than the amount estimated for
recovery in FY 2004.
The FY 2005 fee recovery amount is reduced by a $2.2 million
carryover from additional collections in FY 2004 that were
unanticipated at the time the final FY 2004 fee rule was published, and
by an additional $0.5 million for billing adjustments (i.e., for FY
2005 invoices that the NRC estimates will not be paid during the fiscal
year, and for payments received in FY 2005 for FY 2004 invoices). This
leaves approximately $538 million to be recovered in FY 2005 through
part 170 licensing and inspection fees, part 171 annual fees, and other
offsetting receipts.
The NRC estimates that approximately $166.8 million will be
recovered in FY 2005 from part 170 fees and other offsetting receipts.
The NRC derived this estimate based on the previous four quarters of
billing data for each license class, with adjustments to account for
changes in the NRC's FY 2005 budget as appropriate. The remaining
$371.2 million would be recovered through the part 171 annual fees,
compared to $389.9 million for FY 2004.
The primary reason for the decrease in total fees for FY 2005 is
that the NRC's fee recovery is 90 percent in FY 2005, compared to 92
percent in FY 2004, in accordance with the FY 2001 Energy and Water
Development Appropriations Act. This decrease in the NRC's required fee
recovery is sufficient to offset the increase of 1.5 percent in the
NRC's non-NWF budget in FY 2005.
Table I summarizes the budget and fee recovery amounts for FY 2005.
Table 1.--Budget and Fee Recovery Amounts for FY 2005
[Dollars in millions]
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Total Budget Authority....................................... $669.3
Less NWF................................................... - 68.5
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Balance.................................................. $600.8
Fee Recovery Rate for FY 2005.............................. x 90.0%
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Total Amount To Be Recovered for FY 2005..................... $540.7
Less Carryover From FY 2004................................ - 2.2
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Less Part 171 Billing Adjustments.......................... .........
Unpaid FY 2005 Invoices (estimated)...................... 2.7
Less Payments Received in FY 2005 for Prior Year Invoices - 3.2
(estimated).............................................
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Subtotal................................................. -0.5
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Amount To Be Recovered Through Parts 170 and 171 Fees........ $538.0
Less Estimated Part 170 Fees............................... - 166.8
==========
Part 171 Fee Collections Required............................ $371.2
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The FY 2005 final fee rule will be a ``major rule'' as defined by
the Small Business Regulatory Enforcement Fairness Act of 1996.
Therefore, the NRC's fee schedules for FY 2005 would become effective
60 days after publication of the final rule in the Federal Register.
The NRC will send an invoice for the amount of the annual fee to
reactors and major fuel cycle facilities upon publication of the FY
2005 final rule. For these licensees, payment would be due on the
effective date of the FY 2005 rule. Those materials licensees whose
license anniversary date during FY 2005 falls before the effective date
of the final FY 2005 rule would be billed for the annual fee during the
anniversary month of the license at the FY 2004 annual fee rate. Those
materials licensees whose license anniversary date falls on or after
the effective date of the final FY 2005 rule would be billed for the
annual fee at the FY 2005 annual fee rate during the anniversary month
of the license, and payment would be due on the date of the invoice.
As a matter of courtesy, the NRC plans to continue mailing the
proposed fee rule to all licensees, although, as a cost saving measure,
in accordance with its FY 1998 announcement, the NRC has discontinued
mailing the final fee rule to all licensees. Accordingly, the NRC does
not plan to routinely mail the FY 2005 final fee rule or future final
fee rules to licensees.
However, the NRC will send the final rule to any licensee or other
person upon specific request. To request a copy, contact the License
Fee Team, Division of Financial Management, Office of the Chief
Financial Officer, at (301) 415-7554, or e-mail [email protected]. The NRC
plans to publish the final fee rule in May 2005. In addition to
publication in the Federal Register, the final rule will be available
on the Internet at http://ruleforum.llnl.gov for at least 90 days after
the effective date of the final rule.
The NRC is proposing to make changes to 10 CFR parts 170 and 171 as
discussed in Sections A and B below.
A. Amendments to 10 CFR Part 170: Fees for Facilities, Materials,
Import and Export Licenses, and Other Regulatory Services Under the
Atomic Energy Act of 1954, As Amended
The NRC is proposing to establish the hourly rates used to
calculate fees and to adjust the part 170 fees based on the proposed
hourly rates and the results of the agency's biennial review of fees
required by the Chief Financial Officer (CFO) Act of 1990 (Pub. L. 101-
578, November 15, 1990, 104 Stat. 2838). Additionally, the NRC is
proposing to revise part 170 to provide for the assessment of full cost
fees for licensee-
[[Page 8680]]
specific activities resulting from most orders and decommissioning
activities associated with unlicensed sites; clarify that part 170 fee
waivers need to be requested from, and granted by, the CFO in writing
in certain instances; notify licensees that the NRC intends to apply
its existing full cost recovery policy for project managers to license
renewal project managers; and make minor administrative changes to
enhance consistency between the fee categories used in part 170 and
part 171.
The NRC is proposing the following changes:
1. Hourly Rates
The NRC is proposing to establish in Sec. 170.20 two professional
hourly rates for NRC staff time. These proposed rates would be based on
the number of FY 2005 direct program full time equivalents (FTEs) and
the FY 2005 NRC budget, excluding direct program support costs and
NRC's appropriations from the NWF. These rates are used to determine
the part 170 fees. The proposed rate for the reactor program is $205
per hour ($296,898 per direct FTE). This rate would be applicable to
all activities for which fees are assessed under Sec. 170.21 of the
fee regulations. The proposed rate for the materials program (nuclear
materials and nuclear waste programs) is $198 per hour ($285,944 per
direct FTE). This rate would be applicable to all activities for which
fees are assessed under Sec. 170.31 of the fee regulations. In the FY
2004 final fee rule, the reactor and materials program rates were $157
and $156, respectively. The increase to the reactor and the materials
program rates is primarily due to the NRC's use of a revised estimate
of the number of direct hours per FTE in calculating these rates. The
recent Government-wide pay raise is another reason for the proposed
increase in the hourly rates.
As described in further detail below, the NRC currently assumes
1,776 hours per direct FTE are available for direct program work, while
the new hourly rate assumes 1,446 hours per direct FTE are available
for direct program work. Because the NRC's hourly rates are calculated
by dividing the total annual costs of a direct FTE by average annual
direct hours per FTE, the lower the number of direct hours per FTE used
in the calculation, the higher the hourly rates.
The NRC is proposing to revise its estimate of direct hours per FTE
to more accurately reflect the NRC's costs of providing part 170
services, which would allow the NRC to more fully recover the costs of
these services through part 170 fees. Because costs not recovered under
part 170 are recovered through part 171 annual fees, the increase in
total part 170 fees (caused by the hourly rate increase) would result
in a reduction to total annual fees of the same amount. As such, this
hourly rate increase would shift some fee recovery from part 171 annual
fees to part 170 fees for licensee-specific services. (Because revenue
from these increased part 170 fees would not be received by the NRC
until FY 2006--in light of the effective date of the final rule and the
timing of the NRC's regular billing cycle--the reduction in annual fees
from this change would not occur until FY 2006.)
Previously, the NRC used an estimate of 1,776 hours per FTE to
calculate the reactor and materials program hourly rates, based on the
Office of Management and Budget (OMB) in Circular A-76, ``Performance
of Commercial Activities.'' However, this Circular provides assumptions
to be used to estimate personnel costs for the competition of
commercial activities, and does not provide guidance about assumptions
to be used for purposes of fee calculation. (OMB's Circular A-25,
``User Charges,'' also does not specifically address the number of
hours to assume per FTE in calculating fees, but does emphasize that
agency fees should reflect the full cost of providing services to
identifiable beneficiaries.) The 1,776 estimate from Circular A-76
includes time for administrative, training, and other activities a
direct program FTE may perform that, while relevant to consider for
certain costing purposes, would more accurately be considered overhead.
Therefore, this estimate should not be assumed to be ``direct'' time
for purposes of calculating a rate per hour of direct activities, which
is the intended purpose of the NRC's hourly rates. While the 1,776
estimate would be a useful fee calculation input were more detailed
information not available, the NRC has been collecting more detailed
information from its new time and labor system since November 2001,
which is now the NRC's established source of data for employee work
activities. The NRC has performed a review of its time and labor data,
which indicates that 1,446 hours per FTE more accurately reflects the
time expended by NRC program employees performing activities directly
associated with the programmatic mission of the NRC.
The NRC recognizes that the proposed increase to the hourly rates
is more significant than those hourly rate changes that have occurred
in previous years. However, the NRC believes that this increase is
justified in light of the review of the NRC's time and labor data,
which showed that NRC direct employees spend, on average, 1,446 hours
per year on activities directly associated with the programmatic
mission of the NRC. The NRC believes that the use of 1,446 hours per
FTE is more appropriate for the purpose of the NRC's fee calculation
than other estimates of hours per FTE used for different agency
financial purposes. By using an estimate of hours per FTE that reflects
only direct staff time, the resulting hourly rates more accurately
reflect the full cost of providing services under part 170. For this
reason, the NRC believes that this revised estimate of hours per FTE is
consistent with guidance provided in OMB Circular A-25 on recovering
the full cost of services provided to identifiable recipients. This
change also supports industry comments that consistently recommend that
the NRC collect more of its budget through part 170 fees-for-services
vs. part 171 annual fees.
Higher hourly rates would result in (1) increased full cost fees
for licensing and inspection activities, and (2) increased materials
flat fees for license applications. As noted, total part 171 annual
fees would decrease by the same amount as the increase in total part
170 fees. This shift from part 171 to part 170 would be greater for
those fee classes with a higher proportion of part 170 to part 171 work
activities (e.g., operating power reactors, uranium recovery, rare
earth). Because annual fees are adjusted to recover the remainder of
the budgeted resources for a license fee class not recovered under part
170, the total estimated fees (parts 170 plus 171) recovered from a
license fee class are the same regardless of the amount of the hourly
rate, however, when implemented, higher hourly rates would result in
some individual licensees paying less total fees than if this change
were not enacted. This would be true for those licensees for whom the
NRC performs fewer hours of part 170 services than it does, on average,
for a licensee in that class. Similarly, licensees for which the NRC
performs more hours of part 170 services would pay more in total fees
under the proposed higher hourly rates.
The method used to determine the two professional hourly rates is
as follows:
a. Direct program FTE levels are identified for the reactor program
and the materials program (nuclear materials and nuclear waste
programs). All program costs, except contract support, are included in
the hourly rate for each program by allocating them uniformly based on
the total number of direct FTEs
[[Page 8681]]
for the program. 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 rates because the costs
for direct contract support are recovered directly through either part
170 or 171 fees.
b. All non-program costs for management and support and the Office
of the Inspector General, are allocated to each program based on that
program's costs.
This method results in the following costs, which are included in
the hourly rates. Due to rounding, adding the individual numbers in the
table may result in a total that is slightly different than the one
shown.
Table II.--FY 2005 Budget Authority To Be Included In Hourly Rates
[Dollars in millions]
------------------------------------------------------------------------
Reactor Materials
program program
------------------------------------------------------------------------
Direct Program Salaries & Benefits.............. $150.5M $39.0M
Overhead Salaries & Benefits, Program Travel and 77.5M 17.8M
Other Support..................................
Allocated Agency Management and Support......... 126.1M 31.4M
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Subtotal.................................... 354.1M 88.3M
Less Offsetting Receipts........................ -0.1M -0.00M
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Total Budget Included in Hourly Rate........ 354.0M 88.3M
Program Direct FTEs............................. 1,192.5 308.7
Rate per Direct FTE............................. 296,898 285,944
Professional Hourly Rate (Rate per direct FTE 205 198
divided by 1,446 hours)........................
------------------------------------------------------------------------
As shown in Table II, dividing the $354.0 million budgeted amount
(rounded) included in the hourly rate for the reactor program by the
reactor program direct FTEs (1,192.5) results in a rate for the reactor
program of $296,898 per FTE for FY 2005. The Direct FTE Hourly Rate for
the reactor program would be $205 per hour (rounded to the nearest
whole dollar). This rate is calculated by dividing the cost per direct
FTE ($296,898) by the number of direct billable hours in one year
(1,446 hours). Similarly, dividing the $88.3 million budgeted amount
(rounded) included in the hourly rate for the materials program by the
program direct FTEs (308.7) results in a rate of $285,944 per FTE for
FY 2005. The Direct FTE Hourly Rate for the materials program would be
$198 per hour (rounded to the nearest whole dollar). This rate is
calculated by dividing the cost per direct FTE ($285,944) by the number
of direct billable hours in one year (1,446 hours).
2. Fee Adjustments
The NRC is proposing to adjust the current part 170 fees in
Sec. Sec. 170.21 and 170.31 to reflect both the proposed hourly rates
and the results of the biennial review of part 170 fees required by the
CFOs Act. To comply with the requirements of the CFOs Act, the NRC has
evaluated historical professional staff hours used to process a new
license application for those materials licensees whose fees are based
on the average cost method, or ``flat'' fees. This review also included
new license and amendment applications for import and export licenses.
Evaluation of the historical data shows that fees based on the
average number of professional staff hours required to complete
licensing actions in the materials program should be increased in some
fee categories and decreased in others to more accurately reflect
current costs incurred in completing these licensing actions. The data
for the average number of professional staff hours needed to complete
new licensing actions was last updated in FY 2003 (68 FR 36714; June
18, 2003). Thus, the revised average professional staff hours in this
proposed fee rule reflect the changes in the NRC licensing review
program that have occurred since FY 2003.
As a result of the biennial review, the proposed licensing fees
that are based on the average professional staff hours reflect an
increase in average time for new license applications for five of the
33 materials program fee categories, a decrease in average time for
eight fee categories, and the same average time for the remaining 20
fee categories. The average time for new license applications and
amendments for export and import licenses remained the same for each of
the five fee categories in Sec. Sec. 170.21 and 170.31.
The proposed licensing fees for fee categories K.1 through K.5 of
Sec. 170.21, and fee categories 1C, 1D, 2B, 2C, 3A through 3P, 4B
through 9D, 10B, 15A through 15E, and 16 of Sec. 170.31 are based on
the revised average professional staff hours needed to process the
licensing actions multiplied by the proposed materials program
professional hourly rate for FY 2005. As previously noted, the proposed
higher hourly rate of $198 for the materials program is a key reason
for the increases in the proposed licensing fees.
The biennial review also included the ``flat'' fee for the general
license registrations covered by fee Category 3.Q. As a result of this
review, the proposed fee per registration is $630, compared to the
current fee of $610. The proposed fee is based on the current estimated
number of registrants, current annual resource estimates for the
program, and the FY 2005 materials program hourly rate. The next
biennial review of the registration fee will be included in the FY 2007
fee rule; however, the registration fee may change in the FY 2006 fee
rule if there is a change to the materials program hourly rate for FY
2006.
The amounts of the materials licensing ``flat'' fees are rounded as
follows: Fees under $1,000 are rounded to the nearest $10, fees that
are greater than $1,000 but less than $100,000 are rounded to the
nearest $100, and fees that are greater than $100,000 are rounded to
the nearest $1,000. Applications filed on or after the effective date
of the final rule would be subject to the revised fees in this proposed
rule.
3. Charging Fees for Licensee-Specific Activities Resulting From Most
Orders
The NRC proposes to amend Sec. Sec. 170.21 and 170.31 to provide
that part 170 fees will be assessed for any licensee-specific activity
resulting from orders issued by the Commission not related to civil
penalties or other civil sanctions. Currently, part 170 fees are not
assessed for amendments or other
[[Page 8682]]
licensee-specific activities resulting from the requirements of
Commission orders. This is because in cases where the order proposes
the imposition of a civil penalty or other civil sanctions, the
assessment of additional costs could be viewed as augmenting the amount
of the civil penalty and could discourage licensees from contesting
proposed enforcement actions. However, in recent years, the NRC's use
of orders to impose additional requirements for safety or security
reasons has increased. For example, subsequent to the September 11,
2001, terrorist attacks, the Commission imposed security requirements
on various groups of licensees through orders. These orders resulted in
the NRC's review of licensee-specific amendments and other activities
that normally would have been billable under part 170, except that they
were associated with orders.
Given the changing regulatory environment and the extent of
licensee-specific activities that are resulting from orders unrelated
to civil penalties or other civil sanctions, the NRC is proposing that
its regulations be revised to allow for full cost recovery of these
activities under part 170 from NRC licensees. The NRC is not proposing
to change cost recovery for the development of these orders; these
costs would continue to be recovered under part 171.
4. Charging Fees for Unlicensed Sites in Decommissioning
The NRC currently does not charge part 170 fees to owners or
operators of unlicensed sites in decommissioning. However, the NRC does
perform work related to the decommissioning of these sites that is
recoverable under IOAA through part 170 fees because this work is
associated with an identifiable beneficiary. These costs are currently
recovered through either a surcharge that is included in NRC licensees'
annual fees or through taxpayer-funded appropriations (i.e., Department
of Treasury's General Fund). Recovering the site-specific
decommissioning costs associated with these unlicensed sites through
part 170 fees is consistent with the full cost recovery provisions of
IOAA and the OMB's guidance in Circular A-25, ``User Charges.'' By
recovering the costs of decommissioning activities from the owners or
operators of these unlicensed sites, as NRC does from licensed sites,
the NRC believes the fairness and equity of its fee schedule would be
enhanced. Therefore, the NRC is proposing to add a new category (14B)
to ``Schedule of Materials Fees'' at Sec. 170.31 that would provide
for the assessment of part 170 fees to recover the full cost of site-
specific decommissioning activities for unlicensed sites. (The current
Category 14 at Sec. 170.31 would be renumbered as Category 14A.)
Section 170.2 would also be revised to expand the scope of part 170 to
cover an owner or operator of an unlicensed site in decommissioning
being conducted under NRC oversight.
5. Fee Waivers
Under Sec. 170.11(a)(1)(iii), part 170 fees are not required for a
report/request that has been submitted to the NRC specifically for the
purpose of supporting NRC's development of generic guidance and
regulations. The NRC proposes to clarify this section by stating that
this fee exemption applies only when it is requested from, and granted
by, the Chief Financial Officer (CFO) in writing. While this is
consistent with current practice in requesting and granting these fee
waivers, the NRC believes this revision would enhance clear
communication about implementation of this fee waiver provision.
6. Full Cost Recovery of Project Manager Time
The FY 1999 final fee rule (64 FR 31448; June 10, 1999) expanded
the scope of part 170 fee assessments to include full cost recovery for
project managers assigned to a specific plant or facility. Under this
policy at Sec. 170.12(b)(iv), most project managers' time, excluding
leave and time spent on generic activities such as rulemaking, is
recovered through part 170 fees assessed to the specific applicant or
licensee to which the project manager is assigned. The NRC will begin
applying this policy to ``license renewal'' project managers as of the
effective date of this final rule. Although the NRC does not currently
apply this full cost recovery policy to license renewal project
managers, this change does not require a modification to its
regulations. Rather, given the increase in license renewal activities
since 1999, when full cost recovery for project managers was enacted,
the NRC recognizes that the existing policy should also apply to
license renewal project managers. However, because this is a change in
the application of existing policy, the NRC is notifying licensees of
this change through this proposed rule and will not implement it until
the effective date of the final rule.
7. Administrative Amendments
The NRC is proposing to modify the number or letter identifiers
associated with fee categories listed in Sec. 170.31, as well as make
other minor administrative changes, so that the fee categories under
part 170 are consistent with those used in the `Schedule of Materials
Annual Fees and Fees for Government Agencies Licensed by NRC' at Sec.
171.16(d). While the fee categories are, for the most part, consistent
between the fee tables at Sec. Sec. 170.31 and 171.16(d), in some
instances they are slightly different. This change would enhance the
NRC's ability to track parts 170 and 171 fees for license categories
and simplify communication to licensees about applicable fee
categories.
In summary, the NRC is proposing the following changes under 10 CFR
part 170 --
1. Establish revised materials and reactor programs hourly rates to
better reflect the full cost of providing part 170 services;
2. Revise the licensing fees to be assessed to reflect the reactor
and materials program hourly rates and to comply with the CFO Act
requirement that fees be reviewed biennially and revised as necessary
to reflect the cost to the agency;
3. Revise Sec. Sec. 170.21 and 170.31 to provide that part 170
fees will be assessed for any licensee-specific activity resulting from
orders issued by the Commission not related to civil penalties or other
civil sanctions;
4. Revise Sec. Sec. 170.2 and 170.31 to provide that part 170 fees
will be assessed for any licensee-specific activities associated with
unlicensed sites in decommissioning being conducted under NRC
oversight;
5. Revise Sec. 170.11 to clarify that certain fee waivers need to
be requested from, and granted by, the CFO in writing;
6. Apply the existing policy at Sec. 170.12 of full cost recovery
for project managers to license renewal project managers; and
7. Make minor administrative changes to Sec. 170.31 to enhance
consistency in the identification of fee categories between parts 170
and 171.
B. Amendments to 10 CFR Part 171: Annual Fees for Reactor 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
The NRC proposes to revise the annual fees for FY 2005 to reflect
the FY 2005 budget and changes in the number of NRC licensees
(including those resulting from the transfer of regulatory
responsibility to Agreement States), eliminate `size of reactor' as a
reason for granting annual fee exemptions, and make certain
administrative
[[Page 8683]]
amendments. The proposed amendments are as follow:
1. Annual Fees
The NRC is proposing to establish rebaselined annual fees for FY
2005. The Commission's policy commitment, made in the statement of
considerations accompanying the FY 1995 fee rule (60 FR 32218; June 20,
1995), and further explained in the statement of considerations
accompanying the FY 1999 fee rule (64 FR 31448; June 10, 1999),
determined that base annual fees will be re-established (rebaselined)
at least every third year, and more frequently if there is a
substantial change in the total NRC budget or in the magnitude of the
budget allocated to a specific class of licensees. The fees were last
rebaselined in FY 2004. Based on the change in the magnitude of the
budget allocated to certain classes of licensees, the Commission has
determined that it is appropriate to rebaseline the annual fees again
this year. Rebaselining fees would result in decreased annual fees
compared to FY 2004 for five classes of licenses (operating power
reactors, test and research reactors, spent fuel storage/reactor
decommissioning, rare earth mills, and transportation), and increased
annual fees for two classes (fuel facilities and uranium recovery). For
the materials users class, two categories (sub-classes) of licenses
would have decreased annual fees while the remainder would have
increased annual fees. The annual fee for industrial users of nuclear
material (Category 3P), which is the largest materials users category
and includes nearly 1,700 of the NRC's approximately 4,500 materials
licensees, would not change.
The annual fees in Sec. Sec. 171.15 and 171.16 would be revised
for FY 2005 to recover approximately 90 percent of the NRC's FY 2005
budget authority, less the estimated amount to be recovered through
part 170 fees and the amounts appropriated from the NWF. The total
amount to be recovered through annual fees for FY 2005 is $371.2
million, compared to $389.9 million for FY 2004.
Within the eight fee classes of licensees that pay annual fees, the
FY 2005 annual fees would increase for many categories of licenses,
decrease for others, and remain the same in two instances. The
increases in annual fees range from approximately two percent for a
master materials license to approximately 267 percent for registrations
issued for device or product safety evaluations. The proposed decreases
in annual fees range from approximately six percent for operating power
reactors to approximately 55 percent for rare earth mills.
Factors affecting the changes to the annual fee amounts include:
adjustments in budgeted costs for the different classes of licenses;
the reduction in the fee recovery rate from 92 percent for FY 2004 to
90 percent for FY 2005; the estimated part 170 collections for the
various classes of licenses; the decrease in the number of licensees
for certain categories of licenses; and the $2.2 million carryover from
additional collections in FY 2004 that were unanticipated at the time
the FY 2004 final rule was published (i.e., this FY 2004 carryover was
used to reduce the FY 2005 fees).
Table III below shows the proposed rebaselined annual fees for FY
2005 for a representative list of categories of licenses. The FY 2004
fee is also shown for comparative purposes.
Table III.--Rebaselined Annual Fees for FY 2005
------------------------------------------------------------------------
FY 2004 FY 2005
Class/category of licenses annual fee annual fee
------------------------------------------------------------------------
Operating Power Reactors (including Spent $3,283,000 $3,067,000
Fuel Storage/Reactor Decommissioning annual
fee).......................................
Spent Fuel Storage/Reactor Decommissioning.. 203,000 164,000
Test and Research Reactors (Nonpower 62,500 54,400
Reactors)..................................
High Enriched Uranium Fuel Facility......... 4,573,000 5,383,000
Low Enriched Uranium Fuel Facility.......... 1,533,000 1,612,000
UF6 Conversion Facility..................... 657,000 691,000
Conventional Mills.......................... 14,500 27,700
Transportation:
Users/Fabricators......................... 91,300 80,200
Users Only................................ 7,400 4,300
Typical Materials Users:
Radiographers............................. 11,900 12,800
Well Loggers.............................. 4,600 4,100
Gauge Users (Category 3P)................. 2,500 2,500
Broad Scope Medical....................... 25,000 27,300
------------------------------------------------------------------------
The annual fees assessed to each class of licenses include a
surcharge to recover those NRC budgeted costs that are not directly or
solely attributable to the classes of licenses, but must be recovered
from licensees to comply with the requirements of OBRA-90, as amended.
Based on the FY 2001 Energy and Water Development Appropriations Act,
which amended OBRA-90 to decrease the NRC's fee recovery amount by 2
percent per year beginning in FY 2001 until the fee recovery amount is
90 percent in FY 2005, the total surcharge costs for FY 2005 will be
reduced by approximately $60.1 million. The total FY 2005 budgeted
costs for these activities and the reduction to the total surcharge
amount for fee recovery purposes are shown in Table IV.
Table IV.--Surcharge Costs
[Dollars in millions]
------------------------------------------------------------------------
FY 2005
Category of costs budgeted
costs
------------------------------------------------------------------------
1. Activities not attributable to an existing NRC licensee
or class of licensee:
a. International activities............................. $10.0
[[Page 8684]]
b. Agreement State oversight............................ 8.1
c. Activities for unlicensed sites (includes 3.5
decommissioning costs associated with unlicensed sites,
formerly referred to as site decommissioning management
plan activities not recovered under part 170; also
includes activities associated with unregistered
general licensees).....................................
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 for nonprofit educational institutions. 8.8
b. Licensing and inspection activities associated with 1.4
other Federal agencies.................................
c. Costs not recovered from small entities under 10 CFR 5.9
171.16(c)..............................................
3. Activities supporting NRC operating licensees and others:
a. Regulatory support to Agreement States\1\............ 13.9
b. Generic decommissioning/reclamation (except those 10.0
related to power reactors).............................
Total surcharge costs............................... 61.6
Less 10 percent of NRC's FY 2005 total budget (less NWF).... -60.1
-----------
Total surcharge costs to be recovered............... 1.5
------------------------------------------------------------------------
\1\ This estimate includes the costs of homeland security activities
associated with sources in Agreement States, even though regulatory
authority remains with the NRC for these activities. However, fees are
not assessed to sources in Agreement States for these activities,
therefore these costs are included in this surcharge category.
As shown in Table IV, $1.5 million would be the total surcharge
cost allocated to the various classes of licenses for FY 2005 (i.e.,
that portion of the total surcharge not covered by the NRC's 10 percent
fee relief). The NRC would continue to allocate these surcharge costs
to each class of licenses based on the percent of the budget for that
fee class compared to the NRC's total budget. The proposed surcharge
costs allocated to each class would be included in the annual fee
assessed to each licensee. The proposed FY 2005 surcharge costs
allocated to each class of licenses are shown in Table V. Separately,
the NRC would continue to allocate the low-level waste (LLW) surcharge
costs based on the volume of LLW disposal of certain classes of
licenses. For FY 2005, the LLW surcharge costs are $2.8 million.
Table V.--Allocation of Surcharge
----------------------------------------------------------------------------------------------------------------
LLW surcharge Non-LLW surcharge Total
------------------------------------------------ surcharge
------------
Percent $M Percent $M $M
----------------------------------------------------------------------------------------------------------------
Operating Power Reactors........................... 74 2.1 82.4 1.2 3.3
Spent Fuel Storage/Reactor Decomm.................. .......... .......... 4.7 0.1 0.1
Nonpower Reactors.................................. .......... .......... 0.1 0 0
Fuel Facilities.................................... 8 0.2 7.2 0.1 0.3
Materials Users.................................... 18 0.5 4.0 0.1 0.6
Transportation..................................... .......... .......... 1.0 0 0
Rare Earth Facilities.............................. .......... .......... 0.2 0 0
Uranium Recovery................................... .......... .......... 0.4 0 0
-------------
Total Surcharge................................ 100 2.8 100.0 1.5 4.3
----------------------------------------------------------------------------------------------------------------
The budgeted costs allocated to each class of licenses and the
calculations of the rebaselined fees are described in a. through h.
below. The workpapers which support this proposed rule show in detail
the allocation of NRC's budgeted resources for each class of licenses
and how the fees are calculated. The workpapers are available
electronically at the NRC's Electronic Reading Room on the Internet at
Web site address http://www.nrc.gov/reading-rm/adams.html. During the
30-day public comment period, the workpapers may also be examined at
the NRC Public Document Room located at One White Flint North, Room O-
1F22, 11555 Rockville Pike, Rockville, MD 20852-2738.
a. Fuel Facilities. The FY 2005 budgeted cost to be recovered in
annual fees assessment to the fuel facility class of licenses is
approximately $23.8 million compared to $21.6 million in FY 2004. The
annual fee increase is partly attributable to the decrease in estimated
part 170 revenue for the fuel facility class compared to FY 2004. This
FY 2005 decrease results partly from part 170 fuel facilities' revenue
in FY 2004 including a one-time $2.1 million adjustment (increase) for
revenue to account for fuel facilities fees that were improperly coded
(i.e., costs associated with the Duke Cogema Stone and Webster
application) and not factored into the fee calculations for FY 2001, FY
2002, and FY 2003, as discussed in the FY 2004 final fee rule. The
annual fee increase is also due to an increase in budgeted resources
for this class of licensees. The annual fees are allocated to the
individual fuel facility licensees based on the effort/fee
determination matrix established in the FY 1999 final fee rule (64 FR
31448; June 10, 1999). In the matrix (which is included in the NRC
workpapers that are publicly
[[Page 8685]]
available), licensees are grouped into categories according to their
licensed activities (i.e., nuclear material enrichment, processing
operations, and material form) and according to the level, scope, depth
of coverage, and rigor of generic regulatory programmatic effort
applicable to each category from a safety and safeguards perspective.
This methodology can be applied to determine fees for new licensees,
current licensees, licensees in unique license situations, and
certificate holders.
This methodology is adaptable to changes in the number of licensees
or certificate holders, licensed or certified material and/or
activities, and total programmatic resources to be recovered through
annual fees. When a license or certificate is modified, it may result
in a change of category for a particular fuel facility licensee as a
result of the methodology used in the fuel facility effort/fee matrix.
Consequently, this change may also have an effect on the fees assessed
to other fuel facility licensees and certificate holders. For example,
if a fuel facility licensee amends its license/certificate in such a
way (e.g., decommissioning or license termination) that results in it
not being subject to part 171 costs applicable to the fee class, then
the budgeted costs for the safety and/or safeguards components will be
spread among the remaining fuel facility licensees/certificate holders.
The methodology is applied as follows. First, a fee category is
assigned based on the nuclear material and activity authorized by
license or certificate. Although a licensee/certificate holder may
elect not to fully use a license/certificate, the license/certificate
is still used as the source for determining authorized nuclear material
possession and use/activity. Next, the category and license/certificate
information are used to determine where the licensee/certificate holder
fits into the matrix. The matrix depicts the categorization of
licensees/certificate holders by authorized material types and use/
activities, and the relative generic regulatory programmatic effort
associated with each category. The programmatic effort (expressed as a
value in the matrix) reflects the safety and safeguards risk
significance associated with the nuclear material and use/activity, and
the commensurate generic regulatory program (i.e., scope, depth and
rigor) level of effort.
The effort factors for the various subclasses of fuel facility
licenses, including the proposed new subclass, are summarized in Table
VI.
Table VI.--Effort Factors for Fuel Facilities
------------------------------------------------------------------------
Effort factors (in
Number of percent)
Facility type facilities -------------------------
Safety Safeguards
------------------------------------------------------------------------
High Enriched Uranium Fuel....... 2 101 (38.0) 86 (58.1)
Enrichment....................... 2 70 (26.3) 34 (23.0)
Low Enriched Uranium Fuel........ 3 66 (24.8) 18 (12.2)
UF6 Conversion................... 1 12 (4.5) 0 (0)
Limited Operations Facility...... 1 8 (3.0) 3 (2.0)
Others........................... 2 9 (3.4) 7 (4.7)
------------------------------------------------------------------------
Applying these factors to the safety, safeguards, and surcharge
components of the $23.8 million total annual fee amount for the fuel
facility class results in annual fees for each licensee within the
categories of this class summarized in Table VII.
Table VII.--Annual Fees for Fuel Facilities
------------------------------------------------------------------------
FY 2005
Facility type annual fee
------------------------------------------------------------------------
High Enriched Uranium Fuel................................ $5,383,000
Uranium Enrichment........................................ 2,994,000
Low Enriched Uranium...................................... 1,612,000
UF6 Conversion............................................ 691,000
Limited Operations Facility............................... 633,000
Others.................................................... 461,000
------------------------------------------------------------------------
b. Uranium Recovery Facilities. The proposed FY 2005 budgeted cost,
including surcharge costs, to be recovered through annual fees assessed
to the uranium recovery class is approximately $677,611. Approximately
$539,000 of this amount would be assessed to DOE. The remaining
$139,000 would be recovered through annual fees assessed to
conventional mills, in-situ leach solution mining facilities, and
11e.(2) mill tailings disposal facilities. The annual fees for these
facilities would increase in FY 2005 due to a slight increase in
budgeted resources for this license fee class, and because the NRC
estimates that a smaller proportion of these resources will be
recovered under part 170.
Consistent with the change in methodology adopted in the FY 2002
final fee rule (67 FR 42612; June 24, 2002), the total annual fee
amount, less the amounts specifically budgeted for Title I activities,
is allocated equally between Title I and Title II licensees. This would
result in an annual fee being assessed to DOE to recover the costs
specifically budgeted for NRC's Title I activities plus 50 percent of
the remaining annual fee amount, including the surcharge and generic/
other costs, for the uranium recovery class. The remaining 50 percent
of the surcharge and generic/other costs are assessed to the NRC Title
II program licensees that are subject to annual fees. The costs to be
recovered through annual fees assessed to the uranium recovery class
are shown below.
[[Page 8686]]
------------------------------------------------------------------------
------------------------------------------------------------------------
DOE Annual Fee Amount (UMTRCA Title I and Title II general
licenses):
UMTRCA Title I budgeted costs.......................... $400,322
50 percent of generic/other uranium recovery budgeted 135,619
costs.................................................
50 percent of uranium recovery surcharge............... 3,026
------------
Total Annual Fee Amount for DOE.................... 538,966
============
Annual Fee Amount for UMTRCA Title II Specific Licenses:
50 percent of generic/other uranium recovery budgeted 135,619
costs.................................................
50 percent of uranium recovery surcharge............... 3,026
------------
Total Annual Fee Amount for Title II Specific 138,644
Licenses..........................................
------------------------------------------------------------------------
The matrix used to allocate the costs of various categories of
Title II specific licensees has been updated to equally weight the
effort levels for each category of uranium recovery facilities, in
accordance with the NRC's FY 2005 budgeted activities. It has also been
revised to reflect two fewer uranium recovery facilities, in light of
the fact that regulatory responsibility for these two facilities has
been transferred to Utah (see discussion under ``Agreement State
Activities'' below). However, consistent with the methodology
established in the FY 1995 fee rule (60 FR 32218; June 20, 1995), the
approach for establishing part 171 annual fees for Title II uranium
recovery licensees has not changed, and is as follows:
(1) The methodology identifies three categories of licenses:
conventional uranium mills (Class I facilities), uranium solution
mining facilities (Class II facilities), and mill tailings disposal
facilities (11e.(2) disposal facilities). Each of these categories
benefits from the generic uranium recovery program efforts (e.g.,
rulemakings, staff guidance documents);
(2) The matrix relates the category and the level of benefit by
program element and subelement;
(3) The two major program elements of the generic uranium recovery
program are activities related to facility operations and those related
to facility closure;
(4) Each of the major program elements was further divided into
three subelements; and
(5) The three major subelements of generic activities associated
with uranium facility operations are regulatory efforts related to the
operation of mills, handling and disposal of waste, and prevention of
groundwater contamination. The three major subelements of generic
activities associated with uranium facility closure are regulatory
efforts related to decommissioning of facilities and land clean-up,
reclamation and closure of tailings impoundments, and groundwater
clean-up. Weighted values were assigned to each program element and
subelement considering health and safety implications and the
associated effort to regulate these activities. 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 relative weighted factors per facility type for the various
categories of specifically licensed Title II uranium recovery licensees
are as follows:
Table VIII.--Weighted Factors for Uranium Recovery Licenses
----------------------------------------------------------------------------------------------------------------
Level of benefit
Number of Category total weight
Facility type facilities weight ---------------------
Value Percent
----------------------------------------------------------------------------------------------------------------
Class I (conventional mills).................................. 1 800 800 20
Class II (solution mining).................................... 3 800 2,400 60
11e.(2) disposal.............................................. 0 0 0 0
11e.(2) disposal incidental to existing tailings sites........ 1 800 800 20
----------------------------------------------------------------------------------------------------------------
Applying these factors to the approximately $139,000 in budgeted
costs to be recovered from Title II specific licensees results in the
following revised annual fees:
Table IX.--Annual Fees for Title II Specific Licenses
------------------------------------------------------------------------
FY 2005
Facility type annual fee
------------------------------------------------------------------------
Class I (conventional mills)............................... $27,700
Class II (solution mining)................................. 27,700
11e.(2) disposal........................................... N/A
11e.(2) disposal incidental to existing tailings sites..... 27,700
------------------------------------------------------------------------
Note because there are no longer any 11e.(2) disposal facilities
under the NRC's regulatory jurisdiction, the NRC has not allocated any
budgeted resources for these facilities, and therefore has not
established an annual fee for this fee category. If NRC issues a
license for this fee category in the future, then the Commission will
establish the appropriate annual fee.
In the FY 2001 final rule (66 FR 32478; June 14, 2001), the NRC
revised Sec. 171.19 to establish a quarterly billing schedule for
Class I and Class II licensees, regardless of the annual fee
[[Page 8687]]
amount. Therefore, as provided in Sec. 171.19(b), if the amounts
collected in the first three quarters of FY 2005 exceed the amount of
the revised annual fee, the overpayment will be refunded; if the
amounts collected in the first three quarters are less than the final
revised annual fee, the remainder will be billed after the FY 2005
final fee rule is published. The remaining categories of Title II
facilities are subject to billing based on the anniversary date of the
license as provided in Sec. 171.19(c).
c. Operating Power Reactors. The approximately $301.9 million in
budgeted costs to be recovered through FY 2005 annual fees assessed to
the power reactor class, including budgeted costs for homeland security
activities related to power reactors, is divided equally among the 104
power reactors licensed to operate. This results in a FY 2005 annual
fee of $2,903,000 per reactor. Additionally, each power reactor
licensed to operate will be assessed the FY 2005 spent fuel storage/
reactor decommissioning annual fee of $164,000. This results in a total
FY 2005 annual fee of $3,067,000 for each power reactor licensed to
operate. While budgeted resources for power reactors increased in FY
2005, annual fees would decrease because the NRC estimates that it will
collect more of these resources through part 170 fees to power
reactors.
d. Spent Fuel Storage/Reactor Decommissioning. For FY 2005,
budgeted costs of approximately $20 million for spent fuel storage/
reactor decommissioning are to be recovered through annual fees
assessed to part 50 power reactors, and to part 72 licensees who do not
hold a part 50 license. Those reactor licensees that have ceased
operations and have no fuel onsite are not subject to these annual
fees. The costs are divided equally among the 122 licensees (with the
exception of a new license issued on November 30, 2004, which will pay
an 83 percent prorated annual fee), resulting in a FY 2005 annual fee
of $164,000 per licensee. Annual fees would decrease for these
licensees due to a reduction in budgeted resources for this license fee
class.
e. Test and Research Reactors (Nonpower Reactors). Approximately
$218,000 in budgeted costs is to be recovered through annual fees
assessed to the test and research reactor class of licenses for FY
2005. This amount is divided equally among the four test and research
reactors subject to annual fees. This results in a FY 2005 annual fee
of $54,400 for each licensee. While budgeted resources for test and
research reactors increase in FY 2005, annual fees would decrease due
to a projected increase in the proportion of these resources recovered
through part 170 fees to test and research reactors.
f. Rare Earth Facilities. The FY 2005 budgeted costs of $71,000 for
rare earth facilities to be recovered through annual fees will be
assessed to the one licensee who has a specific license for receipt and
processing of source material, resulting in a FY 2005 annual fee of
$71,000. While total budgeted resources for the rare earth fee class
increase in FY 2005, this increase is due to licensee-specific
activities, the costs of which would be recovered under part 170. The
annual fee for the operating rare earth facility would decrease due to
a slight decrease in generic activities performed for this fee class.
g. Materials Users. To equitably and fairly allocate the $26.1
million in FY 2005 budgeted costs to be recovered in annual fees
assessed to the approximately 4,500 diverse materials users and
registrants, the NRC has continued to base the annual fees for each fee
category within this class on the part 170 application fees and
estimated inspection costs for each fee category. 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 licenses based on how much it costs the NRC to regulate
each category. Changes in FY 2005 annual fees for categories of
licensees within the materials class reflect not only changes in
budgeted resources for the materials class of licensees, but also
changes in estimates of average professional staff time for materials
users license applications and inspections, derived from the biennial
review performed for the FY 2005 fee rule. (Large percentage increases
in certain materials users fee categories, e.g., 3H, 3I, 9A, and 9B,
are the result of significant changes to these average professional
staff time estimates.) The fee calculation also continues to consider
the inspection frequency (priority), which is indicative of the safety
risk and resulting regulatory costs associated with the categories of
licenses. The annual fee for these categories of licenses is developed
as follows:
Annual fee = Constant x [Application Fee + (Average Inspection Cost
divided by Inspection Priority)] + Inspection Multiplier x (Average
Inspection Cost divided by Inspection Priority) + Unique Category
Costs.
The constant is the multiple necessary to recover approximately
$20.9 million in general costs and is 1.27 for FY 2005. The inspection
multiplier is the multiple necessary to recover approximately $4.5
million in inspection costs for FY 2005, and is 1.08 for FY 2005. The
unique category costs are any special costs that the NRC has budgeted
for a specific category of licenses. For FY 2005, approximately $36,000
in budgeted costs for the implementation of revised part 35, Medical
Use of Byproduct Material (unique costs), has been allocated to holders
of NRC human use licenses.
The annual fee assessed to each licensee also includes a share of
the $60,000 in surcharge costs allocated to the materials user class of
licenses and, for certain categories of these licenses, a share of the
approximately $504,000 in LLW surcharge costs allocated to the class.
The annual fee for each fee category is shown in Sec. 171.16(d).
Because the budgeted resources for this class of licensees increase in
FY 2005, annual fees would increase for most of the fee categories in
this class.
h. Transportation. Of the approximately $4.3 million in FY 2005
budgeted costs to be recovered through annual fees assessed to the
transportation class of licenses, approximately $1.1 million will be
recovered from annual fees assessed to DOE based on the number of part
71 Certificates of Compliance that it holds. Of the remaining $3.2
million, approximately 16 percent is allocated to the 84 quality
assurance plans authorizing use only and the 35 quality assurance plans
authorizing use and design/fabrication. The remaining 84 percent is
allocated only to the 35 quality assurance plans authorizing use and
design/fabrication. This results in an annual fee of $4,300 for each of
the holders of quality assurance plans that authorize use only, and an
annual fee of $80,200 for each of the holders of quality assurance
plans that authorize use and design/fabrication. Fees would decrease
for transportation licensees in FY 2005 due to a reduction in budgeted
resources allocated to this fee class compared to FY 2004.
2. Small Entity Annual Fees
The NRC stated in the FY 2001 fee rule (66 FR 32452; June 14,
2001), that it would re-examine the small entity fees every two years,
in the same years in which it conducts the biennial review of fees as
required by the CFOs Act. Accordingly, the NRC has re-examined the
small entity fees, and does not believe that a change to the small
entity fees is warranted for FY 2005. The revision to the small entity
fees in FY 2000 (65 FR 36946; June 12, 2000) was
[[Page 8688]]
based on the 25 percent increase in average total fees assessed to
other materials licensees in selected categories (those categories that
include a number of small entities) since the small entity fees were
first established, and changes that had occurred in the fee structure
for materials licensees over time. While proposed fees for many of
these selected categories of materials licensees would increase in FY
2005 compared to FY 2004, these fees are still lower, on average, than
those charged in FY 2000, when small entity fees were last revised.
Unlike the annual fees assessed to other licensees, the small
entity fees are not designed to recover the agency costs associated
with particular licensees. Instead, the reduced fees for small entities
are designed to provide some fee relief for qualifying small entity
licensees while at the same time recovering from them some of the
agency's costs for activities that benefit them. The costs not
recovered from small entities for activities that benefit them must be
recovered from other licensees. Given the reduction in annual fees from
FY 2000 to FY 2005, on average, for those categories of materials
licensees that contain a number of small entities, the NRC has
determined that the current small entity fees of $500 and $2,300
continue to meet the objective of providing relief to many small
entities while recovering from them some of the costs that benefit
them.
Therefore, the NRC is proposing to retain the $2,300 small entity
annual fee and the $500 lower tier small entity annual fee for FY 2005.
The NRC plans to re-examine the small entity fees again in FY 2007.
3. Agreement State Activities
On August 10, 2004, the NRC approved an Agreement with the State of
Utah under Section 274 of the Atomic Energy Act (AEA) of 1954, as
amended. This Agreement transferred to the State the Commission's
regulatory responsibility for uranium mills and mill tailings sites.
This Agreement became effective August 16, 2004. Utah previously had
become an Agreement State for certain other categories of materials,
effective April 1, 1984. This Agreement was amended to include
commercial low-level waste disposal responsibilities, effective May 9,
1990.
As a result of this Agreement, four former NRC uranium recovery
licensees are now Utah licensees, two of which are uranium mills that
are in decommissioning and reclamation. Because NRC does not charge
fees to Agreement States or their licensees, the NRC will not collect
fees in FY 2005 or thereafter for these four former NRC licensees. (The
NRC did not collect annual fees for the mills in decommissioning while
under the NRC's regulatory authority, because licensees in
decommissioning are exempt from annual fees.) The costs of Agreement
State regulatory support and oversight activities for Utah, as for any
other Agreement State, would be recovered through the surcharge,
consistent with existing fee policy.
4. Fee Waivers
The NRC is proposing to modify Sec. 171.11(c) to eliminate `size
of the reactor' as a consideration in evaluating annual fee exemption
requests. In the Statement of Consideration in the 1986 final fee rule
(51 FR 33227; September 18, 1986), the Commission decided against
determining its fees based on the size of the reactor because it found
no necessary relationship between the thermal megawatt rating of a
reactor and the agency's regulatory costs. Because it was not the
Commission's intent to issue a fee schedule that would have the effect
of forcing smaller, older reactors to shut down, it added an annual fee
exemption provision which takes reactor size, age, and other relevant
factors into consideration.
However, none of these smaller reactors is still licensed to
operate. For several years the NRC has issued no waivers on the basis
of size. Moreover, the NRC streamlined its fee program in the FY 1995
final fee rule (60 FR 32218; June 20, 1995) by establishing a uniform
annual fee for power reactors, based on an analysis that showed that
the difference in fees resulting from a breakdown of reactors into
different fee categories was small relative to the amount of the annual
fee per reactor. Therefore, the NRC believes that the current reference
to `size of the reactor' in Sec. 171.11(c), as a consideration in
evaluating annual fee exemption requests, is no longer needed. No other
class of licensee contains an exemption provision based on size.
5. Administrative Amendments
The NRC is proposing to eliminate reference to specific facility
names under Category 1.A of the ``Schedule of Materials Annual Fees and
Fees for Government Agencies Licensed by the NRC'' in Sec. 171.16.
This administrative change would be made to streamline the fee schedule
in light of the fact that the listing of individual facilities within a
fee category is not necessary to identify license fee amounts. Given
this change, a licensee within Category 1.A would determine its annual
fee amount by the fee subcategory assigned to its license, as is the
practice for other licensees.
Additionally, the NRC is proposing to modify Sec. Sec.
171.15(d)(1)(ii) and 171.16(e)(2) to clarify that activities comprising
the annual fee surcharge include activities associated with unlicensed
sites and unregistered general licensees. Currently, these paragraphs
state that complex materials site decommissioning activities not
covered under part 170 are included in the surcharge. Because this
surcharge category also includes part 171, or generic costs associated
with these decommissioning sites, the NRC is proposing to eliminate the
phrase, ``not covered under part 170.'' (Note that if the regulatory
revision to charge unlicensed sites in decommissioning, as previously
discussed, is implemented, this surcharge category would not include
part 170 activities associated with these sites.) In addition,
activities associated with unregistered general licensees are included
in this surcharge category.
Finally, the NRC is proposing to include, for each fee subcategory
listed in the ``Schedule of Materials Annual Fees and Fees for
Government Agencies Licensed by NRC'' at Sec. 171.16(d), a unique
number or letter identifier, and to make other minor administrative
changes to enhance the consistency of fee categorizations between parts
170 and 171. This change would enhance the NRC's ability to track part
170 and part 171 fees for license categories and simplify communication
to licensees about applicable fee categories.
In summary, the NRC is proposing to--
1. Establish rebaselined annual fees for FY 2005;
2. Retain the current reduced fees for small entities;
3. Adjust the annual fees to reflect changes in Agreement State
activities;
4. Modify Sec. 171.11 to eliminate ``size of reactor'' as a
consideration in evaluating annual fee exemption requests; and
5. Eliminate reference to specific facility names under Category
1.A of Sec. 171.16, revise Sec. Sec. 171.15 and 171.16 to clarify the
activities that comprise the annual fee surcharge, and make other minor
administrative changes to enhance the consistency of fee
categorizations between parts 170 and 171.
III. Plain Language
The Presidential Memorandum dated June 1, 1998, entitled, ``Plain
Language in Government Writing'' directed that the Government's writing
be in plain language. This memorandum was
[[Page 8689]]
published on June 10, 1998 (63 FR 31883). The NRC requests comments on
this proposed rule specifically with respect to the clarity and
effectiveness of the language used. Comments should be sent to the
address listed under the heading ADDRESSES above.
IV. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995, Pub.
L. 104-113, requires that Federal agencies use technical standards that
are developed or adopted by voluntary consensus standards bodies unless
using these standards is inconsistent with applicable law or is
otherwise impractical. In this proposed rule, the NRC would amend the
licensing, inspection, and annual fees charged to its licensees and
applicants as necessary to recover approximately 90 percent of its
budget authority in FY 2005 as required by the Omnibus Budget
Reconciliation Act of 1990, as amended. This action does not constitute
the establishment of a standard that contains generally applicable
requirements.
V. Environmental Impact: Categorical Exclusion
The NRC has determined that this proposed rule is the type of
action described in categorical exclusion 10 CFR 51.22(c)(1).
Therefore, neither an environmental assessment nor an environmental
impact statement has been prepared for the proposed regulation. By its
very nature, this regulatory action does not affect the environment
and, therefore, no environmental justice issues are raised.
VI. Paperwork Reduction Act Statement
This proposed rule does not contain information collection
requirements and, therefore, is not subject to the requirements of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
VII. Regulatory Analysis
With respect to 10 CFR Part 170, this proposed rule was developed
under 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 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 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). The Commission's fee
guidelines were developed based on these legal decisions.
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). This 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 subsequently amended to
extend the 100 percent fee recovery requirement through FY 2000. The FY
2001 Energy and Water Development Appropriations Act amended OBRA-90 to
decrease the NRC's fee recovery amount by 2 percent per year beginning
in FY 2001, until the fee recovery amount is 90 percent in FY 2005. The
NRC's fee recovery amount for FY 2005 is 90 percent. To comply with
this statutory requirement and in accordance with Sec. 171.13, the NRC
is publishing the amount of the FY 2005 annual fees for 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, consistent
with the accompanying Conference Committee Report, and the amendments
to OBRA-90, provides that--
(1) The annual fees be based on approximately 90 percent of the
Commission's FY 2005 budget of $669.3 million less the amounts
collected from part 170 fees and 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.
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). Further, the NRC's FY 1991 annual fee rule
methodology was 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, as amended, to recover approximately 90 percent of its FY 2005
budget authority through the assessment of user fees. This Act further
requires that the NRC establish a schedule of charges that fairly and
equitably allocates the aggregate amount of these charges among
licensees.
This proposed rule would establish the schedules of fees that are
necessary to implement the Congressional mandate for FY 2005. The
proposed rule would result in increases in the annual fees charged to
certain licensees and holders of certificates, registrations, and
approvals, and decreases in annual fees for others. Licensees affected
by the annual fee increases and decreases include those that qualify as
a small entity under NRC's size standards in 10 CFR 2.810. The
Regulatory Flexibility
[[Page 8690]]
Analysis, prepared in accordance with 5 U.S.C. 604, is included as
Appendix A to this proposed rule.
The Small Business Regulatory Enforcement Fairness Act of 1996
requires all Federal agencies to prepare a written compliance guide for
each rule for which the agency is required by 5 U.S.C. 604 to prepare a
regulatory flexibility analysis. Therefore, in compliance with the law,
Attachment 1 to the Regulatory Flexibility Analysis is the small entity
compliance guide for FY 2005.
IX. Backfit Analysis
The NRC has determined that the backfit rule, 10 CFR 50.109, does
not apply to this proposed rule and that a backfit analysis is not
required for this proposed rule. The backfit analysis is not required
because these amendments do not require the modification of, or
additions to systems, structures, components, or the 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; the Energy Reorganization
Act of 1974, as amended; and 5 U.S.C. 553, the NRC is proposing to
adopt 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: Sec. 9701, Pub. L. 97-258, 96 Stat. 1051 (31 U.S.C.
9701); sec. 301, Pub. L. 92-314, 86 Stat. 227 (42 U.S.C. 2201w);
sec. 201, Pub. L. 93-438, 88 Stat. 1242, as amended (42 U.S.C.
5841); sec. 205a, Pub. L. 101-576, 104 Stat. 2842, as amended (31
U.S.C. 901, 902); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).
2. In Sec. 170.2, paragraph (t) is added to read as follows:
Sec. 170.2 Scope.
* * * * *
(t) An owner or operator of an unlicensed site in decommissioning
being conducted under NRC oversight.
3. In Sec. 170.11, paragraphs (a)(1)(iii)(A)(1) and (2) are
revised and paragraph (3) is added to read as follows:
Sec. 170.11 Exemptions.
(a) * * *
(1) * * *
(iii) * * *
(A) * * *
(1) It has been demonstrated that the report/request has been
submitted to the NRC specifically for the purpose of supporting NRC's
development of generic guidance and regulations (e.g., rules,
regulations, guides and policy statements);
(2) The NRC, at the time the document is submitted, plans to use it
for one of the purposes given in paragraph (a)(1)(iii)(A)(1) of this
section. In this case, the exemption applies even if ultimately the NRC
does not use the document as planned; and
(3) The fee exemption is requested in writing by the person
submitting the report/request to the Chief Financial Officer in
accordance with 10 CFR 170.5, and the Chief Financial Officer grants
this request in writing.
* * * * *
4. 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 re-qualification and replacement examinations and tests, other
required reviews, approvals, and inspections under Sec. Sec. 170.21
and 170.31 will be calculated using the following applicable
professional staff-hour rates:
(a) Reactor Program (Sec. 170.21 Activities): $205 per hour.
(b) Nuclear Materials and Nuclear Waste Program (Sec. 170.31
Activities): $198 per hour.
5. In Sec. 170.21, Category K in the table and footnote 1 are
revised and footnote 4 is added 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.
* * * * *
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 export
only of components for production and utilization
facilities issued under 10 CFR Part 110.
1. Application for import or export of
production and utilization facilities \4\
(including reactors and other facilities) and
exports of components requiring Commission and
Executive Branch review, for example, actions
under 10 CFR 110.40(b).
Application--new license, or amendment...... $12,900
2. Application for export of reactor and other
components requiring Executive Branch review
only, for example, those actions under 10 CFR
110.41(a)(1)-(8).
Application--new license, or amendment...... $7,500
3. Application for export of components
requiring only the assistance of the Executive
Branch to obtain foreign government assurances.
Application--new license, or amendment...... $2,400
[[Page 8691]]
4. Application for export of facility components
and equipment (examples provided in 10 CFR part
110, Appendix A, Items (5) through (9)) not
requiring Commission or Executive Branch
review, or obtaining foreign government
assurances.
Application--new license, or amendment...... $1,600
5. Minor amendment of any active export or
import license, for example, to extend the
expiration date, change domestic information,
or make other revisions which do not involve
any substantive changes to license terms or
conditions or to the type of facility or
component authorized for export and therefore,
do not require in-depth analysis or review or
consultation with the Executive Branch, U.S.
host state, or foreign government authorities.
Amendment................................... $300
* * * * * * *
------------------------------------------------------------------------
\1\ Fees will not be charged for orders related to civil penalties or
other civil sanctions issued by the Commission under Sec. 2.202 of
this chapter or for amendments resulting specifically from the
requirements of these orders. For orders unrelated to civil penalties
or other civil sanctions, fees will be charged for any resulting
licensee-specific activities not otherwise exempted from fees under
this chapter. 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 50.12, 73.5)
and any other sections in effect now or in the future, 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.
* * * * * * *
\4\ Imports only of major components for end-use at NRC-licensed
reactors are now authorized under NRC general import license.
6. 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. The following schedule includes fees for health and safety
and safeguards inspections where applicable:
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.(1) Licenses for possession and use of U-
235 or plutonium for fuel fabrication
activities.
(a) Strategic Special Nuclear Material Full Cost.
(High Enriched Uranium).
(b) Low Enriched Uranium in Dispersible Full Cost.
Form Used for Fabrication of Power
Reactor Fuel.
(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. Full Cost.
(b) All Others......................... Full Cost.
B. Licenses for receipt and storage of
spent fuel and reactor-related Greater
than Class C (GTCC) waste at an
independent spent fuel storage
installation (ISFSI):
Licensing and inspection............... 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............................ $910.
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............................ $1,800.
E. Licenses or certificates for
construction and operation of a uranium
enrichment facility:
Licensing and inspection............... Full Cost.
2. Source material:
A.(1) Licenses for possession and use of Full Cost.
source material for refining uranium mill
concentrates to uranium hexafluoride.
(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.
(a) Class I facilities \4\............. Full Cost.
(b) Class II facilities \4\............ Full Cost.
(c) Other facilities \4\............... Full Cost.
[[Page 8692]]
(3) Licenses that authorize the receipt of Full Cost.
byproduct material, as defined in Section
11e.(2) of the Atomic Energy Act, from
other persons for possession and disposal,
except those licenses subject to the fees
in Category 2A(2) or Category 2A(4).
(4) Licenses that authorize the receipt of Full Cost.
byproduct material, as defined in Section
11e.(2) of the Atomic Energy Act, from
other persons 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 2A(2).
B. Licenses which authorize the possession,
use, and/or installation of source
material for shielding:
Application............................ $220.
C. All other source material licenses:
Application............................ $7,800.
3. Byproduct material:
A. Licenses of broad scope for the
possession and use of byproduct material
issued under parts 30 and 33 of this
chapter for processing or manufacturing of
items containing byproduct material for
commercial distribution:
Application............................ $9,300.
B. Other licenses for possession and use of
byproduct material issued under part 30 of
this chapter for processing or
manufacturing of items containing
byproduct material for commercial
distribution:
Application............................ $3,500.
C. Licenses issued under Sec. Sec. 32.72
and/or 32.74 of this chapter that
authorize the processing or manufacturing
and distribution or redistribution of
radiopharmaceuticals, generators, reagent
kits, and/or sources and devices
containing byproduct material. This
category does not apply to licenses issued
to nonprofit educational institutions
whose processing or manufacturing is
exempt under Sec. 170.11(a)(4). These
licenses are covered by fee Category 3D.
Application............................ $4,700.
D. Licenses and approvals issued under Sec.
Sec. 32.72 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. This category includes licenses
issued under Sec. Sec. 32.72 and/or
32.74 of this chapter to nonprofit
educational institutions whose processing
or manufacturing is exempt under Sec.
170.11(a)(4).
Application............................ $3,400.
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):
Application............................ $2,300.
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............................ $4,600.
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............................ $11,000.
H. Licenses issued under 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. The category does not include
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............................ $13,500.
I. Licenses issued under 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. This category
does not include 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............................ $8,000.
J. Licenses issued under 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. This category does not
include specific licenses authorizing
redistribution of items that have been
authorized for distribution to persons
generally licensed under part 31 of this
chapter:
Application............................ $1,400.
K. Licenses issued under 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. This category
does not include specific licenses
authorizing redistribution of items that
have been authorized for distribution to
persons generally licensed under part 31
of this chapter:
Application............................ $810.
L. Licenses of broad scope for possession
and use of byproduct material issued under
parts 30 and 33 of this chapter for
research and development that do not
authorize commercial distribution:
Application............................ $7,800.
M. Other licenses for possession and use of
byproduct material issued under part 30 of
this chapter for research and development
that do not authorize commercial
distribution:
Application............................ $3,100.
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, and 4C:
Application............................ $3,500.
O. Licenses for possession and use of
byproduct material issued under part 34 of
this chapter for industrial radiography
operations:
Application............................ $3,200.
[[Page 8693]]
P. All other specific byproduct material
licenses, except those in Categories 4A
through 9D:
Application............................ $1,100.
Q. Registration of a device(s) generally
licensed under part 31 of this chapter:
Registration........................... $630.
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:
Licensing and inspection............... 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............................ $2,400.
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............................ $3,600.
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:
Application............................ $1,300.
B. Licenses for possession and use of
byproduct material for field flooding
tracer studies:
Licensing.............................. 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............................ $15,800.
7. Medical licenses:
A. Licenses issued under 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............................ $8,600.
B. Licenses of broad scope issued to
medical institutions or two or more
physicians under 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............................ $6,200.
C. Other licenses issued under 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............................ $2,100.
8. Civil defense:
A. Licenses for possession and use of
byproduct material, source material, or
special nuclear material for civil defense
activities:
Application............................ $450.
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............... $19,300.
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............... $19,300.
C. Safety evaluation of sealed sources
containing byproduct material, source
material, or special nuclear material,
except reactor fuel, for commercial
distribution:
Application--each source............... $2,200.
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............... $750.
10. Transportation of radioactive material:
A. Evaluation of casks, packages, and
shipping containers:
1. Spent Fuel, High-Level Waste, and
plutonium air packages
Licensing and inspection........... Full Cost.
2. Other Casks
Licensing and inspection............... Full Cost.
B. Quality assurance program approvals
issued under part 71 of this chapter.
1. Users and Fabricators
Application........................ $5,200.
Inspections........................ Full Cost.
2. Users
Application........................ $5,200.
Inspections........................ Full Cost.
[[Page 8694]]
C. Evaluation of security plans, route
approvals, route surveys, and
transportation security devices (including
immobilization devices):
Licensing and inspection............... Full Cost.
11. Review of standardized spent fuel
facilities:
Licensing and inspection Full Cost.
12. Special projects:
Approvals and preapplication/Licensing Full Cost.
activities.
Inspections................................ Full Cost.
13. A. Spent fuel storage cask Certificate of
Compliance:
Licensing.................................. Full Cost.
Inspections................................ Full Cost.
B. Inspections related to storage of spent Full Cost.
fuel under Sec. 72.210 of this chapter.
14. A. Byproduct, source, or special nuclear
material licenses and other approvals
authorizing decommissioning, decontamination,
reclamation, or site restoration activities
under parts 30, 40, 70, 72, and 76 of this
chapter:
Licensing and inspection............... Full Cost.
B. Site-specific decommissioning activities Full Cost.
associated with unlicensed sites,
regardless of whether or not the sites
have been previously licensed.
15. Import and Export licenses:
Licenses issued under part 110 of this
chapter for the import and export only of
special nuclear material, source material,
tritium and other byproduct material, and
the export only of heavy water, or nuclear
grade graphite.
A. Application for export or import of
nuclear materials, including
radioactive waste requiring Commission
and Executive Branch review, for
example, those actions under 10 CFR
110.40(b). This category includes
application for export and import of
radioactive waste.
Application--new license, or $12,900.
amendment.
B. Application for export or import of
nuclear material, including
radioactive waste, requiring Executive
Branch review, but not Commission
review. This category includes
application for the export and import
of radioactive waste and requires NRC
to consult with domestic host state
authorities, Low-Level Radioactive
Waste Compact Commission, the U.S.
Environmental Protection Agency, etc.
Application--new license, or $7,500.
amendment.
C. Application for export of nuclear
material, for example, routine reloads
of low enriched uranium reactor fuel
and/or natural uranium source material
requiring only the assistance of the
Executive Branch to obtain foreign
government assurances.
Application--new license, or $2,400.
amendment.
D. Application for export or import of
nuclear material, including
radioactive waste, not requiring
Commission or Executive Branch review,
or obtaining foreign government
assurances. This category includes
application for export or import of
radioactive waste where the NRC has
previously authorized the export or
import of the same form of waste to or
from the same or similar parties
located in the same country, requiring
only confirmation from the receiving
facility and licensing authorities
that the shipments may proceed
according to previously agreed
understandings and procedures.
Application--new license, or $1,600.
amendment.
E. Minor amendment of any active export
or import license, for example, to
extend the expiration date, change
domestic information, or make other
revisions which do not involve any
substantive changes to license terms
and conditions or to the type/quantity/
chemical composition of the material
authorized for export and therefore,
do not require in-depth analysis,
review, or consultations with other
Executive Branch, U.S. host state, or
foreign government authorities.
Amendment.......................... $300.
16. Reciprocity:
Agreement State licensees who conduct
activities under the reciprocity
provisions of 10 CFR 150.20.
Application............................ $1,800.
17. Master materials licenses of broad scope N/A.\5\
issued to Government agencies.
18. Department of Energy
A. Certificates of Compliance.............. N/A.\5\
B. Uranium Mill Tailing Radiation.......... N/A.\5\
------------------------------------------------------------------------
\1\ Types of fees--Separate charges, as shown in the schedule, will be
assessed for pre-application consultations and reviews; applications
for new licenses, approvals, or license terminations; possession only
licenses; issuance of new licenses and approvals; certain amendments
and renewals to existing licenses and approvals; safety evaluations of
sealed sources and devices; generally licensed device registrations;
and certain inspections. The following guidelines apply to these
charges:
(a) Application and registration fees. Applications for new materials
licenses and export and import licenses; applications to reinstate
expired, terminated, or inactive licenses except those subject to fees
assessed at full costs; applications filed by Agreement State
licensees to register under the general license provisions of 10 CFR
150.20; and applications for amendments to materials licenses that
would place the license in a higher fee category or add a new fee
category must be accompanied by the prescribed application fee for
each category.
(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.
(2) Applications for new licenses that cover both byproduct material and
special nuclear material in sealed sources for use in gauging devices
will pay the appropriate application fee for fee Category 1C only.
(b) Licensing fees. Fees for reviews of applications for new licenses
and for renewals and amendments to existing licenses, for pre-
application consultations and for reviews of other documents submitted
to NRC for review, and for project manager time for fee categories
subject to full cost fees (fee Categories 1A, 1B, 1E, 2A, 4A, 5B, 10A,
11, 12, 13A, and 14) are due upon notification by the Commission in
accordance with Sec. 170.12(b).
(c) Amendment fees. Applications for amendments to export and import
licenses must be accompanied by the prescribed amendment fee for each
license 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.
[[Page 8695]]
(d) Inspection fees. Inspections resulting from investigations conducted
by the Office of Investigations and non-routine inspections that
result from third-party allegations are not subject to fees.
Inspection fees are due upon notification by the Commission in
accordance with Sec. 170.12(c).
(e) Generally licensed device registrations under 10 CFR 31.5.
Submittals of registration information must be accompanied by the
prescribed fee.
\2\ Fees will not be charged for orders related to civil penalties or
other civil sanctions issued by the Commission under 10 CFR 2.202 or
for amendments resulting specifically from the requirements of these
orders. For orders unrelated to civil penalties or other civil
sanctions, fees will be charged for any resulting licensee-specific
activities not otherwise exempted from fees under this chapter. 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 in effect now or in the future), 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 multiplied by the appropriate professional hourly rate
established in Sec. 170.20 in effect at the time the service is
provided, and the appropriate contractual support services expended.
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.
\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 for an application that deals
only with the sealed sources authorized by the license.
\5\ The NRC does not charge part 170 fees to Federal agencies, per 31
U.S.C. 9701.
PART 171--ANNUAL FEES FOR REACTOR 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
7. 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. 2132, as amended by sec. 6101, Pub.
L. 101-508, 104 Stat. 1388, as amended by sec. 2903a, Pub. L. 102-
486, 106 Stat. 3125 (42 U.S.C. 2213, 2214); sec. 301, Pub. L. 92-
314, 86 Stat. 227 (42 U.S.C. 2201w); sec. 201, Pub. L. 93-438, 88
Stat. 1242, as amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750
(44 U.S.C. 3504 note).
Sec. 171.11 [Amended]
8. Section 171.11 is amended by removing paragraph (c)(2), and
paragraphs (c)(3), (c)(4), and (c)(5) are redesignated as (c)(2),
(c)(3), and (c)(4), respectively.
9. In Sec. 171.15 paragraphs (b), (c), (d), and (e) are revised to
read as follows:
Sec. 171.15 Annual Fees: Reactor licenses and independent spent fuel
storage licenses.
* * * * *
(b)(1) The FY 2005 annual fee for each operating power reactor
which must be collected by September 30, 2005, is $3,067,000.
(2) The FY 2005 annual fee is comprised of a base annual fee for
power reactors licensed to operate, a base spent fuel storage/reactor
decommissioning annual fee, and associated additional charges
(surcharges). The activities comprising the FY 2005 spent storage/
reactor decommissioning base annual fee are shown in paragraphs
(c)(2)(i) and (ii) of this section. The activities comprising the FY
2005 surcharge are shown in paragraph (d)(1) of this section. The
activities comprising the FY 2005 base annual fee for operating power
reactors are as follows:
(i) Power reactor safety and safeguards regulation except licensing
and inspection activities recovered under part 170 of this chapter and
generic reactor decommissioning activities.
(ii) Research activities directly related to the regulation of
power reactors, except those activities specifically related to reactor
decommissioning.
(iii) 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 annual fee for operating power
reactors does not include generic activities specifically related to
reactor decommissioning.
(c)(1) The FY 2005 annual fee for each power reactor holding a part
50 license that is in a decommissioning or possession only status and
has spent fuel onsite and each independent spent fuel storage part 72
licensee who does not hold a part 50 license is $164,000.
(2) The FY 2005 annual fee is comprised of a base spent fuel
storage/reactor decommissioning annual fee (which is also included in
the operating power reactor annual fee shown in paragraph (b) of this
section), and an additional charge (surcharge). The activities
comprising the FY 2005 surcharge are shown in paragraph (d)(1) of this
section. The activities comprising the FY 2005 spent fuel storage/
reactor decommissioning rebaselined annual fee are:
(i) Generic and other research activities directly related to
reactor decommissioning and spent fuel storage; and
(ii) Other safety, environmental, and safeguards activities related
to reactor decommissioning and spent fuel storage, except costs for
licensing and inspection activities that are recovered under part 170
of this chapter.
(d)(1) The activities comprising the FY 2005 surcharge are as
follows:
(i) Low-level waste disposal generic activities;
(ii) Activities not attributable to an existing NRC licensee or
class of licenses (e.g., international cooperative safety program and
international safeguards activities, support for the Agreement State
program, decommissioning activities for unlicensed sites, and
activities for unregistered general licensees); and
(iii) Activities not currently subject to 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, licensing actions for Federal agencies, and costs that
would not be collected from small entities based on Commission policy
in accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq.).
(2) The total FY 2005 surcharge allocated to the operating power
reactor class of licenses is $3.3 million, not including the amount
allocated to the spent fuel storage/reactor decommissioning class. The
FY 2005 operating power reactor surcharge to be assessed to each
operating power reactor is approximately $31,700. This amount is
calculated by dividing the total operating power reactor surcharge
($3.3 million) by the number of operating power reactors (104).
(3) The FY 2005 surcharge allocated to the spent fuel storage/
reactor decommissioning class of licenses is $70,000. The FY 2005 spent
fuel storage/reactor decommissioning surcharge to be assessed to each
[[Page 8696]]
operating power reactor, each power reactor in decommissioning or
possession only status that has spent fuel onsite, and to each
independent spent fuel storage part 72 licensee who does not hold a
part 50 license is approximately $580. This amount is calculated by
dividing the total surcharge costs allocated to this class by the total
number of power reactor licenses, except those that permanently ceased
operations and have no fuel onsite, and part 72 licensees who do not
hold a part 50 license.
(e) The FY 2005 annual fees for licensees authorized to operate a
test and research (non-power) reactor licensed under part 50 of this
chapter, unless the reactor is exempted from fees under Sec.
171.11(a), are as follows:
Research reactor........................................... $54,400
Test reactor............................................... 54,400
10. In Sec. 171.16, paragraphs (c), (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
along with its annual fee payment, the licensee may pay reduced annual
fees as shown in the following table. Failure to file a small entity
certification in a timely manner could result in the denial of any
refund that might otherwise be due. The small entity fees are as
follows:
------------------------------------------------------------------------
Maximum
annual fee per
licensed
category
------------------------------------------------------------------------
Small Businesses Not Engaged in Manufacturing and Small
Not-For-Profit Organizations (Gross Annual Receipts):
$350,000 to $5 million.............................. $2,300
Less than $350,000.................................. 500
Manufacturing entities that have an average of 500
employees or less:
35 to 500 employees................................. 2,300
Less than 35 employees.............................. 500
Small Governmental Jurisdictions (Including publicly
supported educational institutions) (Population):
20,000 to 50,000.................................... 2,300
Less than 20,000.................................... 500
Educational Institutions that are not State or Publicly
Supported, and have 500 Employees or Less
35 to 500 employees................................. 2,300
Less than 35 employees.............................. 500
------------------------------------------------------------------------
(1) A licensee qualifies as a small entity if it meets the size
standards established by the NRC (See 10 CFR 2.810).
(2) A licensee who seeks to establish status as a small entity for
the purpose of paying the annual fees required under this section must
file a certification statement with the NRC. The licensee must file the
required certification on NRC Form 526 for each license under which it
is billed. NRC Form 526 can be accessed through the NRC's Web site at
http://www.nrc.gov. For licensees who cannot access the NRC's Web site,
NRC Form 526 may be obtained through the local point of contact listed
in the NRC's ``Materials Annual Fee Billing Handbook,'' NUREG/BR-0238,
which is enclosed with each annual fee billing. The form can also be
obtained by calling the fee staff at (301) 415-7554, or by e-mailing
the fee staff at [email protected].
(3) For purposes of this section, the licensee must submit a new
certification with its annual fee payment each year.
(4) The maximum annual fee a small entity is required to pay is
$2,300 for each category applicable to the license(s).
(d) The FY 2005 annual fees are comprised of a base annual fee and
an additional charge (surcharge). The activities comprising the FY 2005
surcharge are shown for convenience in paragraph (e) of this section.
The FY 2005 annual fees for materials licensees and holders of
certificates, registrations or approvals subject to fees under this
section are shown in the following table:
Schedule of Materials Annual Fees and Fees for Government Agencies
Licensed by NRC
[See footnotes at end of table]
------------------------------------------------------------------------
Annual fees
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 (High $5,383,000
Enriched Uranium)..............................
(b) Low Enriched Uranium in Dispersible Form 1,612,000
Used for Fabrication of Power Reactor Fuel.....
(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.......... 633,000
(b) All Others.................................. 461,000
B. Licenses for receipt and storage of spent fuel \11\ N/A
and reactor-related Greater than Class C (GTCC)
waste at an independent spent fuel storage
installation (ISFSI)...............................
C. Licenses for possession and use of special 2,100
nuclear material in sealed sources contained in
devices used in industrial measuring systems,
including x-ray fluorescence analyzers.............
D. All other special nuclear material licenses, 5,800
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)............................................
[[Page 8697]]
E. Licenses or certificates for the operation of a 2,994,000
uranium enrichment facility........................
2. Source material:
A. (1) Licenses for possession and use of source 691,000
material for refining uranium mill concentrates to
uranium hexafluoride...............................
(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.
(a) Class I facilities \4\...................... 27,700
(b) Class II facilities \4\..................... 27,700
(c) Other facilities \4\........................ 71,000
(3) Licenses that authorize the receipt of byproduct \5\ N/A
material, as defined in Section 11e.(2) of the
Atomic Energy Act, from other persons for
possession and disposal, except those licenses
subject to the fees in Category 2A(2) or Category
2A(4)..............................................
(4) Licenses that authorize the receipt of byproduct 27,700
material, as defined in Section 11e.(2) of the
Atomic Energy Act, from other persons 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 2A(2).....
B. Licenses that authorize only the possession, use 750
and/or installation of source material for
shielding..........................................
C. All other source material licenses............... 13,500
3. Byproduct material:
A. Licenses of broad scope for possession and use of 24,800
byproduct material issued under parts 30 and 33 of
this chapter for processing or manufacturing of
items containing byproduct material for commercial
distribution.......................................
B. Other licenses for possession and use of 8,200
byproduct material issued under part 30 of this
chapter for processing or manufacturing of items
containing byproduct material for commercial
distribution.......................................
C. Licenses issued under Sec. Sec. 32.72 and/or 10,200
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 under part 40 of this chapter when
included on the same license. This category does
not apply to licenses issued to nonprofit
educational institutions whose processing or
manufacturing is exempt under Sec. 171.11(a)(1).
These licenses are covered by fee under Category 3D
D. Licenses and approvals issued under Sec. Sec. 6,100
32.72 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. This category includes licenses
issued under Sec. Sec. 32.72 and 32.74 of this
chapter to nonprofit educational institutions whose
processing or manufacturing is exempt under Sec.
171.11(a)(1). This category also includes the
possession and use of source material for shielding
authorized under part 40 of this chapter when
included on the same license.......................
E. Licenses for possession and use of byproduct 4,300
material in sealed sources for irradiation of
materials in which the source is not removed from
its shield (self-shielded units)...................
F. Licenses for possession and use of less than 7,800
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...................
G. Licenses for possession and use of 10,000 curies 26,800
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...................
H. Licenses issued under Subpart A of part 32 of 18,400
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............................................
I. Licenses issued under Subpart A of part 32 of 11,100
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....................................
J. Licenses issued under Subpart B of part 32 of 2,800
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...
K. Licenses issued under Subpart B of part 31 of 1,700
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.............
L. Licenses of broad scope for possession and use of 14,700
byproduct material issued under parts 30 and 33 of
this chapter for research and development that do
not authorize commercial distribution..............
M. Other licenses for possession and use of 6,100
byproduct material issued under part 30 of this
chapter for research and development that do not
authorize commercial distribution..................
N. Licenses that authorize services for other 6,600
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, and 4C..........................
O. Licenses for possession and use of byproduct 12,800
material issued under part 34 of this chapter for
industrial radiography operations. This category
also includes the possession and use of source
material for shielding authorized under part 40 of
this chapter when authorized on the same license...
[[Page 8698]]
P. All other specific byproduct material licenses, 2,500
except those in Categories 4A through 9D...........
Q. Registration of devices generally licensed under \13\ N/A
part 31 of this chapter............................
4. Waste disposal and processing:
A. Licenses specifically authorizing the receipt of \5\ N/A
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..........................
B. Licenses specifically authorizing the receipt of 10,500
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............................
C. Licenses specifically authorizing the receipt of 8,500
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.........................
5. Well logging:
A. Licenses for possession and use of byproduct 4,100
material, source material, and/or special nuclear
material for well logging, well surveys, and tracer
studies other than field flooding tracer studies...
B. Licenses for possession and use of byproduct \5\ N/A
material for field flooding tracer studies.........
6. Nuclear laundries:
A. Licenses for commercial collection and laundry of 25,200
items contaminated with byproduct material, source
material, or special nuclear material..............
7. Medical licenses:
A. Licenses issued under parts 30, 35, 40, and 70 of 13,700
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...................................
B. Licenses of broad scope issued to medical 27,300
institutions or two or more physicians under 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\.................
C. Other licenses issued under parts 30, 35, 40, and 5,100
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\...............................
8. Civil defense:
A. Licenses for possession and use of byproduct 1,600
material, source material, or special nuclear
material for civil defense activities..............
9. Device, product, or sealed source safety evaluation:
A. Registrations issued for the safety evaluation of 24,600
devices or products containing byproduct material,
source material, or special nuclear material,
except reactor fuel devices, for commercial
distribution.......................................
B. Registrations issued for the safety evaluation of 24,600
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.............
C. Registrations issued for the safety evaluation of 2,800
sealed sources containing byproduct material,
source material, or special nuclear material,
except reactor fuel, for commercial distribution...
D. Registrations issued for the safety evaluation of 960
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.....................
10. Transportation of radioactive material:
A. Certificates of Compliance or other package
approvals issued for design of casks, packages, and
shipping containers.
1. Spent Fuel, High-Level Waste, and plutonium \6\ N/A
air packages...................................
2. Other Casks.................................. \6\ N/A
B. Quality assurance program approvals issued under
part 71 of this chapter.
1. Users and Fabricators........................ 80,200
2. Users........................................ 4,300
C. Evaluation of security plans, route approvals, \6\ N/A
route surveys, and transportation security devices
(including immobilization devices).................
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 \12\ N/A
10 CFR 72.210
14. Decommissioning/Reclamation:
A. Byproduct, source, or special nuclear material \7\ N/A
licenses and other approvals authorizing
decommissioning, decontamination, reclamation, or
site restoration activities under parts 30, 40, 70,
72, and 76 of this chapter.........................
B. Site-specific decommissioning activities \7\ N/A
associated with unlicensed sites, regardless of
whether or not the sites have been previously
licensed...........................................
15. Import and Export licenses:
[[Page 8699]]
Licenses issued under part 110 of this chapter for
the import and export only of special nuclear
material, source material, tritium and other
byproduct material, and the export only of heavy
water, or nuclear grade graphite.
A. Licenses for export or import of nuclear \8\ N/A
materials, including radioactive waste requiring
Commission and Executive Branch review, for
example, those actions under 10 CFR 110.40(b). This
category includes licenses for export and import of
radioactive waste..................................
B. Licenses for export or import of nuclear \8\ N/A
material, radioactive waste, requiring Executive
Branch review, but not Commission review. This
category includes licenses for the export and
import of radioactive waste and requires NRC to
consult with domestic host state authorities, Low-
Level Radioactive Waste Compact Commission, the
U.S. Environmental Protection Agency, etc..........
C. Licenses for export of nuclear material, for \8\ N/A
example, routine reloads of low enriched uranium
reactor fuel and/or natural uranium source material
requiring only the assistance of the Executive
Branch to obtain foreign government assurances.....
D. Licenses for export or import of nuclear \8\ N/A
material, including radioactive waste, not
requiring Commission or Executive Branch review, or
obtaining foreign government assurances. This
category includes licenses for export or import of
radioactive waste where the NRC has previously
authorized the export or import of the same form of
waste to or from the same or similar parties
located in the same country, requiring only
confirmation from the receiving facility and
licensing authorities that the shipments may
proceed according to previously agreed
understandings and procedures......................
E. Minor amendment of any active export or import \8\ N/A
license, for example, to extend the expiration
date, change domestic information, or make other
revisions which do not involve any substantive
changes to license terms and conditions or to the
type/quantity/chemical composition of the material
authorized for export and therefore, do not require
in-depth analysis, review, or consultations with
other Executive Branch, U.S. host state, or foreign
government authorities.............................
16. Reciprocity......................................... \8\ N/A
17. Master materials licenses of broad scope issued to 251,000
Government agencies....................................
18. Department of Energy:
A. Certificates of Compliance....................... \10\ 1,087,000
B. Uranium Mill Tailing Radiation Control Act 539,000
(UMTRCA) activities................................
------------------------------------------------------------------------
\1\ Annual fees will be assessed based on whether a licensee held a
valid license with the NRC authorizing possession and use of
radioactive material, or a construction authorization for a mixed
oxide fuel facility, during the current fiscal year. 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 before October 1, 2004, and permanently ceased
licensed activities entirely by September 30, 2004. Annual fees for
licensees who filed for termination of a license, downgrade of a
license, or for a possession only license 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 1A(1) are not subject to the annual fees for Category 1C and
1D 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, 72, or 76 of this chapter.
\3\ Each fiscal year, 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.
\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\ There are no existing NRC licenses in these fee categories. If NRC
issues a license for these categories, the Commission will consider
establishing an annual fee for this type of license.
\6\ Standardized spent fuel facilities, 10 CFR parts 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 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\ See Sec. 171.15(c).
\12\ See Sec. 171.15(c).
\13\ No annual fee is charged for this category because the cost of the
general license registration program applicable to licenses in this
category will be recovered through 10 CFR part 170 fees.
(e) The activities comprising the surcharge are as follows:
(1) LLW disposal generic activities;
(2) Activities not directly attributable to an existing NRC
licensee or class(es) of licenses (e.g., international cooperative
safety program and international safeguards activities; support for the
Agreement State program; decommissioning activities for unlicensed
sites; and activities for unregistered general licensees); and
(3) Activities not currently assessed licensing and inspection fees
under 10 CFR part 170 based on existing law or Commission policy (e.g.,
reviews and inspections of nonprofit educational institutions and
reviews for 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, 5 U.S.C. 601 et seq.).
Dated at Rockville, Maryland, this 10th day of February, 2005.
For the Nuclear Regulatory Commission.
Jesse L. Funches,
Chief Financial Officer.
Note: This appendix will not appear in the Code of Federal
Regulations.
[[Page 8700]]
Appendix A to This Proposed Rule--Draft 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 (RFA), as amended (5 U.S.C. 601
et seq.), requires that agencies consider the impact of their
rulemakings on small entities and, consistent with applicable
statutes, consider alternatives to minimize these impacts on the
businesses, organizations, and government jurisdictions to which
they apply.
The NRC has established standards for determining which NRC
licensees qualify as small entities (10 CFR 2.810). These size
standards were established based on the Small Business
Administration's most common receipts-based size standards and
include a size standard for business concerns that are manufacturing
entities. The NRC uses the size standards to reduce the impact of
annual fees on small entities by establishing a licensee's
eligibility to qualify for a maximum small entity fee. The small
entity fee categories in Sec. 171.16(c) of this proposed rule are
based on the NRC's size standards.
From FY 1991 through FY 2000, the Omnibus Budget Reconciliation
Act (OBRA-90), as amended, required that the NRC recover
approximately 100 percent of its budget authority, less
appropriations from the Nuclear Waste Fund, by assessing license and
annual fees. The FY 2001 Energy and Water Development Appropriations
Act amended OBRA-90 to decrease the NRC's fee recovery amount by 2
percent per year beginning in FY 2001, until the fee recovery amount
is 90 percent in FY 2005. The amount to be recovered for FY 2005 is
approximately $540.7 million.
OBRA-90 requires that the schedule of charges established by
rulemaking should fairly and equitably allocate the total amount to
be recovered from the NRC's licensees and be assessed under the
principle that licensees who require the greatest expenditure of
agency resources pay the greatest annual charges. Since FY 1991, the
NRC has complied with OBRA-90 by issuing a final rule that amends
its fee regulations. These final rules have established the
methodology used by NRC in identifying and determining the fees to
be assessed and collected in any given fiscal year.
In FY 1995, the NRC announced that, to stabilize fees, annual
fees would be adjusted only by the percentage change (plus or minus)
in NRC's total budget authority, adjusted for changes in estimated
collections for 10 CFR part 170 fees, the number of licensees paying
annual fees, and as otherwise needed to assure the billed amounts
resulted in the required collections. The NRC indicated that if
there were a substantial change in the total NRC budget authority or
the magnitude of the budget allocated to a specific class of
licenses, the annual fee base would be recalculated.
In FY 1999, the NRC concluded that there had been significant
changes in the allocation of agency resources among the various
classes of licenses and established rebaselined annual fees for FY
1999. The NRC stated in the final FY 1999 rule that to stabilize
fees it would continue to adjust the annual fees by the percent
change method established in FY 1995, unless there is a substantial
change in the total NRC budget or the magnitude of the budget
allocated to a specific class of licenses, in which case the annual
fee base would be reestablished.
Based on the change in the magnitude of the budget to be
recovered through fees, the Commission has determined that it is
appropriate to rebaseline its part 171 annual fees again in FY 2005.
Rebaselining fees will result in decreased annual fees for the
majority of the fee classes of licensees. However, annual fees would
increase for other classes including most materials licensees in the
materials users class.
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) is intended to reduce regulatory burdens imposed by Federal
agencies on small businesses, nonprofit organizations, and
governmental jurisdictions. SBREFA also provides Congress with the
opportunity to review agency rules before they go into effect. Under
this legislation, the NRC annual fee rule is considered a ``major''
rule and must be reviewed by Congress and the Comptroller General
before the rule becomes effective. SBREFA also requires that an
agency prepare a guide to assist small entities in complying with
each rule for which a final regulatory flexibility analysis is
prepared. This Regulatory Flexibility Analysis (RFA) and the small
entity compliance guide (Attachment 1) have been prepared for the FY
2005 fee rule as required by law.
II. Impact on Small Entities
The fee rule results in substantial fees being charged to those
individuals, organizations, and companies that are licensed by the
NRC, including those licensed under the NRC materials program. The
comments received on previous proposed fee rules and the small
entity certifications received in response to previous final fee
rules indicate that NRC licensees qualifying as small entities under
the NRC's size standards are primarily materials licensees.
Therefore, this analysis will focus on the economic impact of the
annual fees on materials licensees. About 26 percent of these
licensees (approximately 1,200 licensees for FY 2004) have requested
small entity certification in the past. A 1993 NRC survey of its
materials licensees indicated that about 25 percent of these
licensees could qualify as small entities under the NRC's size
standards.
The commenters on previous fee rulemakings consistently
indicated that the following results would occur if the proposed
annual fees were not modified:
1. Large firms would gain an unfair competitive advantage over
small entities. Commenters noted that small and very small companies
(``Mom and Pop'' operations) would find it more difficult to absorb
the annual fee than a large corporation or a high-volume type of
operation. In competitive markets, such as soil testing, annual fees
would put small licensees at an extreme competitive disadvantage
with their 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.
2. Some firms would be forced to cancel their licenses. A
licensee 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. Other licensees, especially well-loggers, noted
that the increased fees would force 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.
3. Some companies would go out of business.
4. Some companies would have budget problems. Many medical
licensees noted that, along with reduced reimbursements, the
proposed increase of the existing fees and the introduction of
additional fees would significantly affect their budgets. Others
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.
Approximately 3,000 license, approval, and registration
terminations have been requested since the NRC first established
annual fees for materials licenses. Although 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.
To alleviate the significant impact of the annual fees on a
substantial number of small entities, the NRC considered the
following alternatives in accordance with the RFA in developing each
of its fee rules since FY 1991.
1. Base fees on some measure of the amount of radioactivity
possessed by the licensee (e.g., number of sources).
2. Base fees on the frequency of use of the licensed radioactive
material (e.g., volume of patients).
3. Base fees on the NRC size standards for small entities.
The NRC has reexamined its previous evaluations of these
alternatives and continues to believe that establishment of a
maximum fee for small entities is the most appropriate and effective
option for reducing the impact of its fees on small entities.
III. Maximum Fee
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. In developing the maximum small entity
annual fee in FY 1991, the NRC examined its 10 CFR part 170
licensing and inspection fees and Agreement State fees for those fee
categories which were expected to have a substantial number of small
entities. Six Agreement
[[Page 8701]]
States (Washington, Texas, Illinois, Nebraska, New York, and Utah),
were used as benchmarks in the establishment of the maximum small
entity annual fee in FY 1991. Because small entities in those
Agreement States were paying the fees, the NRC concluded that these
fees did not have a significant impact on a substantial number of
small entities. Therefore, those fees were considered a useful
benchmark in establishing the NRC maximum small entity annual fee.
The NRC maximum small entity fee was established as an annual
fee only. In addition to the annual fee, NRC small entity licensees
were required to pay amendment, renewal and inspection fees. In
setting the small entity annual fee, NRC ensured that the total
amount small entities paid annually would not exceed the maximum
paid in the six benchmark Agreement States.
Of the six benchmark states, the maximum Agreement State fee of
$3,800 in Washington was used as the ceiling for the total fees.
Thus the NRC's small entity fee was developed to ensure that the
total fees paid by NRC small entities would not exceed $3,800. Given
the NRC's FY 1991 fee structure for inspections, amendments, and
renewals, a small entity annual fee established at $1,800 allowed
the total fee (small entity annual fee plus yearly average for
inspections, amendments and renewal fees) for all categories to fall
under the $3,800 ceiling.
In FY 1992, the NRC introduced a second, lower tier to the small
entity fee in response to concerns that the $1,800 fee, when added
to the license and inspection fees, still imposed a significant
impact on small entities with relatively low gross annual receipts.
For purposes of the annual fee, each small entity size standard was
divided into an upper and lower tier. Small entity licensees in the
upper tier continued to pay an annual fee of $1,800 while those in
the lower tier paid an annual fee of $400.
Based on the changes that had occurred since FY 1991, the NRC
re-analyzed its maximum small entity annual fees in FY 2000, and
determined that the small entity fees should be increased by 25
percent to reflect the increase in the average fees paid by other
materials licensees since FY 1991, as well as changes in the fee
structure for materials licensees. The structure of the fees that
NRC charged to its materials licensees changed during the period
between 1991 and 1999. Costs for materials license inspections,
renewals, and amendments, which were previously recovered through
part 170 fees for services, are now included in the part 171 annual
fees assessed to materials licensees. As a result, the maximum small
entity annual fee increased from $1,800 to $2,300 in FY 2000. By
increasing the maximum annual fee for small entities from $1,800 to
$2,300, the annual fee for many small entities was reduced while at
the same time materials licensees, including small entities, would
pay for most of the costs attributable to them. The costs not
recovered from small entities are allocated to other materials
licensees and to power reactors.
While reducing the impact on many small entities, the NRC
determined that the maximum annual fee of $2,300 for small entities
may continue to have a significant impact on materials licensees
with annual gross receipts in the thousands of dollars range.
Therefore, the NRC continued to provide a lower-tier small entity
annual fee for small entities with relatively low gross annual
receipts, and for manufacturing concerns and educational
institutions not State or publicly supported, with less than 35
employees. The NRC also increased the lower tier small entity fee by
the same percentage increase to the maximum small entity annual fee.
This 25 percent increase resulted in the lower tier small entity fee
increasing from $400 to $500 in FY 2000.
The NRC examined the small entity fees again in FY 2003 (68 FR
36717; June 18, 2003), and determined that a change was not
warranted to the small entity fees established in FY 2003. The NRC
stated in the Regulatory Flexibility Analysis for the FY 2001 final
fee rule that it would re-examine the small entity fees every two
years, in the same years in which it conducts the biennial review of
fees as required by the CFO Act.
Accordingly, the NRC re-examined the small entity fees for FY
2005, and did not believe that a change to the small entity fees was
warranted. Unlike the annual fees assessed to other licensees, the
small entity fees are not designed to recover the agency costs
associated with particular licensees. Instead, the reduced fees for
small entities are designed to provide some fee relief for
qualifying small entity licensees while at the same time recovering
from them some of the agency's costs for activities that benefit
them. The costs not recovered from small entities for activities
that benefit them must be recovered from other licensees. Given the
reduction in annual fees from FY 2000 to FY 2005, on average, for
those categories of materials licensees that contain a number of
small entities, the NRC has determined that the current small entity
fees of $500 and $2,300 continue to meet the objective of providing
relief to many small entities while recovering from them some of the
costs that benefit them.
Therefore, the NRC proposed to retain the $2,300 small entity
annual fee and the $500 lower tier small entity annual fee for FY
2005. The NRC plans to re-examine the small entity fees again in FY
2007.
IV. Summary
The NRC has determined that the 10 CFR part 171 annual fees
significantly impact a substantial number of small entities. A
maximum fee for small entities strikes a balance between the
requirement to recover 90 percent of the NRC budget and the
requirement to consider means of reducing the impact of the fee on
small entities. Based on its regulatory flexibility analysis, the
NRC concludes that a maximum annual fee of $2,300 for small entities
and a lower-tier small entity annual fee of $500 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 fees for small entities maintain a balance between the
objectives of OBRA-90 and the RFA. Therefore, the analysis and
conclusions previously established remain valid for FY 2005.
Attachment 1 to Appendix A--U.S. Nuclear Regulatory Commission Small
Entity Compliance Guide Fiscal Year 2005
Contents
Introduction
NRC Definition of Small Entity
NRC Small Entity Fees
Instructions for Completing NRC Form 526
Introduction
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) requires all Federal agencies to prepare a written guide
for each ``major'' final rule, as defined by the Act. The NRC's fee
rule, published annually to comply with the Omnibus Budget
Reconciliation Act of 1990 (OBRA-90), as amended, is considered a
``major'' rule under SBREFA. Therefore, in compliance with the law,
this guide has been prepared to assist NRC materials licensees in
complying with the FY 2005 fee rule.
Licensees may use this guide to determine whether they qualify
as a small entity under NRC regulations and are eligible to pay
reduced FY 2005 annual fees assessed under 10 CFR part 171. The NRC
has established two tiers of annual fees for those materials
licensees who qualify as small entities under the NRC's size
standards.
Licensees who meet the NRC's size standards for a small entity
must submit a completed NRC Form 526 ``Certification of Small Entity
Status for the Purposes of Annual Fees Imposed Under 10 CFR Part
171'' to qualify for the reduced annual fee. This form can be
accessed on the NRC's Web site at http://www.nrc.gov. The form can
then be accessed by selecting ``License Fees'' and under ``Forms''
selecting NRC Form 526. For licensees who cannot access the NRC's
Web site, NRC Form 526 may be obtained through the local point of
contact listed in the NRC's ``Materials Annual Fee Billing
Handbook,'' NUREG/BR-0238, which is enclosed with each annual fee
billing. Alternatively, the form may be obtained by calling the fee
staff at (301) 415-7554, or by e-mailing the fee staff at
[email protected]. The completed form, the appropriate small entity fee,
and the payment copy of the invoice should be mailed to the U.S.
Nuclear Regulatory Commission, License Fee Team, at the address
indicated on the invoice.
Failure to file the NRC small entity certification Form 526 in a
timely manner may result in the denial of any refund that might
otherwise be due.
NRC Definition of Small Entity
For purposes of compliance with its regulations (10 CFR 2.810),
the NRC has defined a small entity as follows:
(1) Small business--a for-profit concern that provides a
service, or a concern that is not engaged in manufacturing, with
average
[[Page 8702]]
gross receipts of $5 million or less over its last 3 completed
fiscal years;
(2) Manufacturing industry--a manufacturing concern with an
average of 500 or fewer employees based on employment during each
pay period for the preceding 12 calendar months;
(3) Small organizations--a not-for-profit organization that is
independently owned and operated and has annual gross receipts of $5
million or less;
(4) Small governmental jurisdiction--a government of a city,
county, town, township, village, school district or special
district, with a population of less than 50,000;
(5) Small educational institution--an educational institution
supported by a qualifying small governmental jurisdiction, or one
that is not State or publicly supported and has 500 or fewer
employees.\1\
---------------------------------------------------------------------------
\1\ An educational institution referred to in the size standards
is an entity whose primary function is education, whose programs are
accredited by a nationally recognized accrediting agency or
association, who is legally authorized to provide a program of
organized instruction or study, who provides an educational program
for which it awards academic degrees, and whose educational programs
are available to the public.
---------------------------------------------------------------------------
To further assist licensees in determining if they qualify as a
small entity, the following guidelines are provided, which are based
on the Small Business Administration's regulations (13 CFR part
121).
(1) A small business concern is an independently owned and
operated entity which is not considered dominant in its field of
operations.
(2) The number of employees means the total number of employees
in the parent company, any subsidiaries and/or affiliates, including
both foreign and domestic locations (i.e., not solely the number of
employees working for the licensee or conducting NRC licensed
activities for the company).
(3) Gross annual receipts includes all revenue received or
accrued from any source, including receipts of the parent company,
any subsidiaries and/or affiliates, and account for both foreign and
domestic locations. Receipts include all revenues from sales of
products and services, interest, rent, fees, and commissions, from
whatever sources derived (i.e., not solely receipts from NRC
licensed activities).
(4) A licensee who is a subsidiary of a large entity does not
qualify as a small entity.
NRC Small Entity Fees
In 10 CFR 171.16 (c), the NRC has established two tiers of fees
for licensees that qualify as a small entity under the NRC's size
standards. The fees are as follows:
------------------------------------------------------------------------
Maximum
annual fee per
licensed
category
------------------------------------------------------------------------
Small business not engaged in manufacturing and small
not-for-profit organizations (Gross Annual Receipts):
$350,000 to $5 million.............................. $2,300
Less than $350,000.................................. 500
Manufacturing entities that have an average of 500
employees or less:
35 to 500 employees................................. 2,300
Less than 35 employees.............................. 500
Small Governmental Jurisdictions (Including publicly
supported educational institutions) (population):
20,000 to 50,000.................................... 2,300
Less than 20,000.................................... 500
Educational institutions that are not State or publicly
supported, and have 500 Employees or less:
35 to 500 employees................................. 2,300
Less than 35 employees.............................. 500
------------------------------------------------------------------------
To pay a reduced annual fee, a licensee must use NRC Form 526.
Licensees can access this form on the NRC's Web site at http://www.nrc.gov. The form can then be accessed by selecting ``License
Fees'' and under ``Forms'' selecting NRC Form 526. Those licensees
that qualify as a ``small entity'' under the NRC size standards at
10 CFR 2.810 can complete the form in accordance with the
instructions provided, and submit the completed form and the
appropriate payment to the address provided on the invoice. For
licensees who cannot access the NRC's Web site, NRC Form 526 may be
obtained through the local point of contact listed in the NRC's
``Materials Annual Fee Billing Handbook,'' NUREG/BR-0238, which is
enclosed with each annual fee invoice. Alternatively, licensees may
obtain the form by calling the fee staff at (301) 415-7554, or by e-
mailing us at [email protected].
Instructions for Completing NRC Small Entity Form 526
(1) File a separate NRC Form 526 for each annual fee invoice
received.
(2) Complete all items on NRC Form 526, as follows:
a. Enter the license number and invoice number exactly as they
appear on the annual fee invoice.
b. Enter the Standard Industrial Classification (SIC) or North
American Industry Classification System (NAICS) if known.
c. Enter the licensee's name and address as they appear on the
invoice. Name and/or address changes for billing purposes must be
annotated on the invoice. Correcting the name and/or address on NRC
Form 526, or on the invoice does not constitute a request to amend
the license. Any request to amend a license must be submitted to the
respective licensing staff in the NRC's regional or headquarters
offices.
d. Check the appropriate size standard for which the licensee
qualifies as a small entity. Check only one box. Note the following:
(i) A licensee who is a subsidiary of a large entity does not
qualify as a small entity.
(ii) The size standards apply to the licensee, including all
parent companies and affiliates--not the individual authorized users
listed in the license or the particular segment of the organization
that uses licensed material.
(iii) Gross annual receipts means all revenue in whatever form
received or accrued from whatever sources--not solely receipts from
licensed activities. There are limited exceptions as set forth at 13
CFR 121.104. These are: the term receipts excludes net capital gains
or losses; taxes collected for and remitted to a taxing authority
(if included in gross or total income), proceeds from the
transactions between a concern and its domestic or foreign
affiliates (if also excluded from gross or total income on a
consolidated return filed with the IRS); and amounts collected for
another entity by a travel agent, real estate agent, advertising
agent, or conference management service provider.
(iv) The owner of the entity, or an official empowered to act on
behalf of the entity, must sign and date the small entity
certification.
The NRC sends invoices to its licensees for the full annual fee,
even though some licensees qualify for reduced fees as small
entities. Licensees who qualify as small entities and file NRC Form
526, which certifies eligibility for small entity fees, may pay the
reduced fee, which is either $2,300 or $500 for a full year,
depending on the size of the entity, for each fee category shown on
the invoice. Licensees granted a license during the first 6 months
of the fiscal year, and licensees who file for termination or for a
``possession only'' license and permanently cease licensed
activities during the first 6 months of the fiscal year, pay only 50
percent of the annual fee for that year. Such invoices state that
the ``amount billed represents 50% proration.'' This means that the
amount due from a small entity is not the prorated amount shown on
the invoice, but rather one-half of the maximum annual fee shown on
NRC Form 526 for the size standard under
[[Page 8703]]
which the licensee qualifies, resulting in a fee of either $1,150 or
$250 for each fee category billed (instead of the full small entity
annual fee of $2,300 or $500).
Licensees must file a new small entity form (NRC Form 526) with
the NRC each fiscal year to qualify for reduced fees in that year.
Because a licensee's ``size,'' or the size standards, may change
from year to year, the invoice reflects the full fee and licensees
must complete and return form 526 for the fee to be reduced to the
small entity fee amount. LICENSEES WILL NOT RECEIVE A NEW INVOICE
FOR THE REDUCED AMOUNT. The completed NRC Form 526, the payment of
the appropriate small entity fee, and the ``Payment Copy'' of the
invoice should be mailed to the U.S. Nuclear Regulatory Commission,
License Fee Team at the address indicated on the invoice.
If you have questions regarding the NRC's annual fees, please
contact the license fee staff at (301) 415-7554, e-mail the fee
staff at [email protected], or write to the U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, Attention: Office of the
Chief Financial Officer.
False certification of small entity status could result in civil
sanctions being imposed by the NRC under the Program Fraud Civil
Remedies Act, 31 U.S.C. 3801 et seq. NRC's implementing regulations
are found at 10 CFR part 13.
[FR Doc. 05-3128 Filed 2-18-05; 8:45 am]
BILLING CODE 7590-01-P