[Federal Register Volume 70, Number 101 (Thursday, May 26, 2005)]
[Rules and Regulations]
[Pages 30526-30556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-10062]



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Part II





Nuclear Regulatory Commission





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10 CFR Parts 170 and 171



Revision of Fee Schedules; Fee Recovery for FY 2005; Final Rule

  Federal Register / Vol. 70, No. 101 / Thursday, May 26, 2005 / Rules 
and Regulations  

[[Page 30526]]


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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: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending the 
licensing, inspection, and annual fees charged to its applicants and 
licensees. The amendments are necessary to implement the Omnibus Budget 
Reconciliation Act of 1990 (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: Effective July 25, 2005.

ADDRESSES: The comments received and the NRC's work papers that support 
these final changes to 10 CFR parts 170 and 171 are available 
electronically at the NRC's Public Electronic Reading Room on the 
Internet 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. For more information, contact the NRC Public 
Document Room (PDR) Reference staff at 1-800-397-4209, or 301-415-4737, 
or by e-mail to [email protected]. If you do not have access to ADAMS or if 
there are problems in accessing the documents located in ADAMS, contact 
the PDR.
    Comments received may also be viewed via the NRC's interactive 
rulemaking Web site (http://ruleforum.llnl.gov). This site provides the 
ability to upload comments as files (any format), if your Web browser 
supports that function. For information about the interactive 
rulemaking site, contact Ms. Carol Gallagher, 301-415-5905; e-mail 
[email protected].
    For a period of 90 days after the effective date of this final 
rule, the work papers may also be examined at the NRC Public Document 
Room, Room O-1F22, One White Flint North, 11555 Rockville Pike, 
Rockville, MD 20852-2738. The PDR reproduction contractor will copy 
documents for a fee.

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. Response to Comments
III. Final Action
IV. Voluntary Consensus Standards
V. Environmental Impact: Categorical Exclusion
VI. Paperwork Reduction Act Statement
VII. Regulatory Analysis
VIII. Regulatory Flexibility Analysis
IX. Backfit Analysis
X. Small Business Regulatory Enforcement Fairness Act

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 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 two 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.
    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.

II. Response to Comments

    The NRC published the FY 2005 proposed fee rule on February 22, 
2005 (70 FR 8677) to solicit public comment on its proposed revisions 
to 10 CFR parts 170 and 171. The NRC received 13 comments dated on or 
before the close of the comment period (March 24, 2005) and 3 
additional comments thereafter, for a total of 16 comments that were 
considered in this fee rulemaking. The comments have been grouped by 
issues and are addressed in a collective response.

A. Legal Issues

Information Provided by NRC in Support of Proposed Rule
    Comment. Several commenters urged the NRC to provide licensees and 
the public with a more detailed explanation of the activities and 
associated costs that form the basis for NRC's fees. These commenters 
stated that the NRC should inform stakeholders of the costs associated 
with each component of reactor regulation and all other generic costs 
in sufficient detail to enable them to provide meaningful comment on 
the proposed fee rule. The commenters stated that the NRC should 
provide an itemized accounting of the major elements that comprise the 
annual fee, including detailed information on the outstanding major 
contracts, their purpose, and their costs.
    These commenters further stated that industry's ability to evaluate 
the NRC's application of resources and priorities is impeded because 
the NRC allocated 72 percent of its recoverable budget to the generic 
assessment under part 171, while only 28 percent is recovered under the 
discrete fee provisions of part 170.
    Response. Consistent with the requirements of OBRA-90, as amended, 
the purpose of this rulemaking is to establish fees necessary to 
recover 90 percent of the NRC's FY 2005 budget authority, less the 
amounts appropriated from the NWF, from applicants and the various 
classes of NRC licensees. The proposed rule described the types of 
activities included in the proposed fees and explained how the fees 
were calculated to recover the budgeted costs

[[Page 30527]]

for those activities. Therefore, the NRC believes that ample 
information was available on which to base constructive comments on the 
proposed revisions to parts 170 and 171 and that its fee schedule 
development is a transparent process.
    In addition to the information provided in the proposed rule, the 
supporting work papers were available for public examination in the 
NRC's Agencywide Documents Access and Management System (ADAMS) and, 
during the 30-day comment period, in the NRC Public Document Room at 
One White Flint North, 11555 Rockville Pike, Rockville, MD. The work 
papers show the total budgeted full time equivalent (FTE) and contract 
costs at the planned activity level for all agency activities. The work 
papers also include extensive information detailing the allocation of 
the budgeted costs for each planned activity within each program to the 
various classes of licenses, as well as information on categories of 
costs included in the hourly rate.
    To assist commenters, the NRC also made available in the Public 
Document Room NUREG-1100, Volume 20, ``Performance Budget: Fiscal year 
2005'' (February 2004), which discusses the NRC's budget for FY 2005, 
including the activities to be performed in each program. This document 
is also available on the NRC public Web site at http://www.nrc.gov/reading-rm.html. The extensive information available provided the 
public with sufficient information on how NRC calculated the proposed 
fees. Additionally, the contact listed in the proposed fee rule was 
available during the public comment period to answer any questions that 
commenters had on the development of the proposed fees.
    Regarding the comments that expressed concern that too much of the 
NRC's budget was designated for recovery under part 171, the NRC is not 
at liberty to allocate fees indiscriminately between parts 170 and 171, 
because fee allocation is controlled by statute. (The NRC also notes 
its estimated fee recovery in FY 2005 from parts 171 and 170 fees is 71 
percent and 29 percent, respectively.) The NRC assesses part 170 fees 
under the IOAA, consistent with implementing Office of Management and 
Budget (OMB) Circular A-25, to recover the costs incurred from each 
identifiable recipient for special benefits derived from Federal 
activities beyond those received by the general public. Generic costs 
that do not provide special benefits to identifiable recipients cannot 
be recovered under part 170. Further, the NRC notes that, as required 
by OBRA-90, the part 171 annual fee recovery amounts are offset by the 
estimated part 170 fee collections. The NRC's work papers clearly set 
forth the components of these generic costs and how those costs are 
recovered through annual fees. Additionally, the NRC notes that it has 
taken action to maximize the amount recovered under part 170, 
consistent with existing law and agency policy. For example, in FY 1998 
the NRC began charging part 170 fees for all resident inspectors' time 
(63 FR 31840; June 10, 1998) and in FY 1999 the NRC started charging 
part 170 fees for all project manager activities associated with 
oversight of the assigned license or plant (64 FR 31448; June 10, 
1999). In FY 2003, the NRC amended its regulations to allow the NRC to 
recover costs associated with contested hearings on licensing actions 
involving U.S. Government national security initiatives through part 
170 fees assessed to the affected applicant or licensee (67 FR 64033; 
October 17, 2002). Included under this provision are activities 
involving the fabrication and use of mixed oxide fuel. Additionally, in 
this year's fee rule, the NRC is revising its hourly rate calculation 
formula to better reflect actual agency costs, resulting in higher 
hourly rates. Once implemented, the NRC estimates that the increased 
hourly rates will increase fee recovery under part 170 from 
approximately 29 percent in FY 2005 to more than 37 percent in FY 2006. 
The NRC strives, as a matter of policy, to maximize its fee collections 
under part 170.

B. Specific Part 170 Issues

1. Hourly Fees
    Comment. Several commenters expressed concerns about the large 
increases in the NRC's hourly rates associated with the proposed 
changes to 10 CFR 170.20. One commenter was concerned that these 
changes disproportionately shift NRC management and overhead costs to 
single unit licensees with an NRC project manager and two resident 
inspectors, as compared to multiple unit sites that may share project 
manager and resident inspector resources. This commenter stated that 
these overhead costs should more appropriately be included in 10 CFR 
Part 171 fees.
    Response. The NRC acknowledges that the increases to the part 170 
hourly rates are more significant this year than in previous years, and 
agrees that these increases will have a greater impact on the sites 
that receive more part 170 services (e.g., sites with more than one 
resident inspector). The NRC's hourly rates are based on budgeted costs 
and must be established each year to meet the NRC's fee recovery 
requirements. The primary reason for the increases in the hourly rates 
in FY 2005 is the NRC's use of a revised estimate of the number of 
direct hours per FTE in calculating these rates. The NRC's new hourly 
rates are justified because they more accurately reflect the full cost 
of providing services under part 170. The OMB's Circular A-25, ``User 
Charges,'' emphasizes that agency fees should reflect the full cost of 
providing services to identifiable beneficiaries. The higher hourly 
rates are consistent with this guidance. The increases also support 
industry comments that consistently recommend the NRC collect more of 
its budget through part 170 fees-for-services vs. part 171 annual fees. 
Therefore, the NRC is retaining the revised hourly rate formula as 
presented in the FY 2005 proposed fee rule. This results in hourly 
rates of $205 for the Nuclear Reactor Safety (reactor) program, and 
$197 for the Nuclear Materials and Waste Safety (materials) program. 
Although the higher hourly rates will have a greater impact on 
licensees that receive more part 170 services, the NRC believes this is 
appropriate because the new rates more accurately reflect the costs of 
providing these services.
2. Increase in the Category 9A Evaluation Fee
    Comment. One commenter objected to the increase in the fees for 
materials category 9A (device safety evaluations) in 10 CFR 170.31, 
stating the increases are well beyond the inflation rate and 
capricious.
    Response. The NRC recognizes that there was a large increase in the 
evaluation fee for materials category 9A. The change is a result of 
both the increase in the materials program hourly rate as well as a 
revised estimate of the average professional staff time required to 
process this type of application. As previously noted, the increase in 
the hourly rate is due to the revision of the NRC's hourly rate 
calculation formula to better reflect actual agency costs. The change 
in the average professional staff time estimate is based on the 
biennial review of fees performed for the FY 2005 fee rule, in 
compliance with the Chief Financial Officers (CFOs) Act of 1990 (Pub. 
L. 101-578, November 15, 1990, 104 Stat. 2838). During the biennial 
review, the NRC evaluates the historical professional staff hours used 
to process an application for those materials licensees whose fees are 
based on the average cost method, or ``flat'' fees. This evaluation 
indicated that

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processing time for most fee categories decreased or remained the same; 
however, processing time for some fee categories, including 9A, 
increased because of the increased staff effort associated with 
processing these requests. The increased staff effort for these 
categories is due to the complexity of the submissions and the 
additional review required to assure the continued quality and adequacy 
of technical and regulatory determinations. The biennial review 
completed for the FY 2005 fee rule also reflected more substantial data 
(i.e., larger data sets) available for this assessment than in previous 
years. (The data on 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]). The revised fees better reflect actual 
agency costs, and therefore the NRC believes the fee increases are 
justified.
3. Fees for Unlicensed Sites in Decommissioning
    Comment. One commenter expressed its opposition to the imposition 
of part 170 fees on unlicensed companies currently in site 
decommissioning, stating that these companies are not receiving a 
benefit from the NRC. The commenter disagreed with the NRC's policy of 
imposing fees on these companies because the costs are associated with 
revised government decommissioning standards and fees would discourage 
voluntary decommissioning. The commenter stated that if the NRC decides 
to impose these fees, the fees should not be applied to sites currently 
in decommissioning.
    Response. As a matter of policy, the NRC assesses part 170 fees 
under the IOAA, which allows Federal agencies to assess fees to recover 
costs incurred in providing special benefits to identifiable 
recipients. In addition, the Conference Committee Report accompanying 
OBRA-90 specifically states that the Conference Committee ``* * * 
expects the NRC to continue to assess fees under the IOAA to the end 
that each licensee or applicant pays the full cost to the NRC of all 
identifiable regulatory services such licensee or applicant receives'' 
(136 Cong. Rec. H12692-3, daily ed. October 26, 1990). The NRC has 
received additional direction on this issue in the OMB Circular A-25, 
``User Charges,'' in which OMB states it is Federal policy that a user 
charge will be assessed against each identifiable recipient for special 
benefits derived from Federal activities beyond those received by the 
general public. The NRC abides by this direction in charging part 170 
fees to recover the costs of providing special benefits to identifiable 
recipients. The NRC believes recovering the site-specific 
decommissioning costs associated with both licensed and unlicensed 
sites through part 170 fees is consistent with the full cost recovery 
provisions of IOAA and Circular A-25.
    While the NRC acknowledges that decommissioning standards have been 
revised over the years, regulatory standards sometimes change for 
operating licensees, as well, in light of new safety or security issues 
or information. The NRC does not believe this is sufficient rationale 
for not imposing fees in these circumstances. Additionally, while the 
NRC is not providing the benefit of an operating license to sites in 
decommissioning--whether licensed or unlicensed--the NRC is incurring 
costs to provide services to these sites, and believes this justifies 
the imposition of fees to recover these costs. As such, the NRC does 
not believe it is appropriate to enact this policy but not apply it to 
existing sites in decommissioning, as the commenter requested.
    However, NRC appreciates the concerns raised by this commenter. To 
address these concerns, NRC will delay the effective date of this 
requirement to one year after the effective date of the FY 2005 final 
fee rule. The NRC believes this later effective date will allow 
unlicensed sites to better plan for the imposition of these fees. This 
delayed effective date will also allow the owners/operators of 
unlicensed sites time to make as much progress as practicable in 
completing these decommissioning activities before the imposition of 
fees by the NRC. The NRC believes charging part 170 fees to unlicensed 
sites, but with sufficient notice before implementation, will 
appropriately implement the NRC's goal of enhancing the fairness and 
equity of its fee schedule while encouraging continued progress on 
meeting decommissioning standards.
4. Fees for Licensee-Specific Activities Resulting From Security 
Related Orders
    Comment. One commenter suggested not amending part 170 to allow 
fees to be assessed for any licensee-specific activity resulting from 
orders issued by the Commission not related to civil penalties or other 
civil sanctions. This commenter stated that licensees are required to 
implement additional security requirements at their own cost, and that 
adding additional homeland security costs to the fee base could 
discourage licensees from voluntary implementation of technological 
advances or additional security measures beyond the scope of the 
orders.
    Response. The NRC acknowledges the impact of these fees on the 
licensees. However, the NRC must comply with OBRA-90 and recover most 
of its budget, including homeland security costs, through fees to 
licensees. As such, the NRC must recover the costs of licensee-specific 
actions resulting from security-related orders through either parts 170 
or 171 fees. The NRC believes it is more fair and appropriate to 
recover these costs through part 170 fees because the activities are 
licensee-specific and serve an identifiable beneficiary. By recovering 
the costs of licensee-specific activities resulting from orders through 
part 170 fees, as opposed to part 171 annual fees, the NRC will more 
fairly allocate the cost recovery of these activities amongst 
licensees. This is because part 170 fees will be charged to a licensee 
based on the actual time NRC spends ensuring compliance for that 
licensee, rather than spreading total industry costs evenly to all 
licensees. This will allow the NRC to recover more fees from licensees 
that use more NRC resources in complying with these orders.
    The NRC also believes this change is important because the NRC's 
use of orders to impose additional requirements for safety or security 
reasons has recently increased. For example, subsequent to the 
September 11, 2001, terrorist attacks, the Commission has imposed 
security requirements on various classes 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 revising its 
regulations to allow for full cost recovery of these activities under 
part 170 from NRC licensees. The NRC is not changing cost recovery for 
the development of these orders or for hearings requested on these 
orders; these costs will continue to be recovered under part 171 
(unless the hearing falls within the purview of 10 CFR 170.11(a)(2) 
addressing fees for Presidentially-directed national security 
programs).

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C. Specific Part 171 Issues

1. Annual Fees for Uranium Recovery Licensees
    Comment. The NRC received three comments objecting to the large 
increase in the annual fees for uranium recovery licensees. These 
commenters stated that there continues to be a lack of a reasonable 
relationship between the cost to uranium recovery licensees of NRC's 
regulatory program and the benefit derived from these services. 
Additionally, the commenters stated that the NRC needs to address the 
issue of decreasing numbers of uranium recovery licensees. 
Specifically, as more states become Agreement States and/or additional 
sites are decommissioned, the number of NRC regulated sites continues 
to decline, leaving fewer licensees to pay a larger share of the NRC's 
regulatory costs.
    The comments supported the continuation of the 2002 determination 
that the DOE must be assessed one-half of all NRC budgeted costs 
attributed to generic/other activities for the uranium recovery 
program. In addition, one commenter cited the dramatic recovery of the 
price of uranium and indicated that this may generate future requests 
for licensing actions. The commenter was concerned that the NRC may not 
possess sufficient experienced staff to process these requests. This 
commenter also noted a previous Commission comment which indicated the 
existence of a uranium recovery facility was in the public interest.
    Response. The NRC acknowledges that uranium recovery annual fees 
increased by a large percentage (90 percent to 115 percent) from FY 
2004 to FY 2005. However, the FY 2005 uranium recovery annual fee of 
$30,200 is still significantly lower than previous years. (For example, 
these fees ranged from approximately $82,000 to $132,000 in FY 2001, 
and $39,000 to $64,000 in FY 2003.) Annual fees fluctuate from year to 
year based on a number of factors, including the budgeted resources for 
a license fee class. Additionally, because annual fees must recover all 
fee class resources not recovered through part 170 fees, annual fees 
are impacted by the part 170 fees collected from that fee class.
    In response to concerns regarding decreasing numbers of NRC 
licensees in light of more states becoming Agreement States, the NRC 
notes that budgeted resources providing support to Agreement States or 
their licensees are included in total surcharge costs, which are offset 
by funding provided by Congress. For example, if the NRC develops a 
rule or guidance document, or even potentially a database or other 
tracking system, that is associated with or otherwise benefits 
Agreement State licensees, the costs of these activities are prorated 
to the surcharge according to the percentage of licensees in that fee 
class in Agreement States (e.g., if 50 percent of uranium recovery 
licensees are in Agreement States, 50 percent of these regulatory 
infrastructure costs would be included in the surcharge). Total 
surcharge costs are reduced by the fee relief (i.e., direct 
appropriations from the General Treasury) provided by Congress. To 
address fairness and equity concerns associated with licensees paying 
for the cost of activities that do not directly benefit them, as noted 
previously, the FY 2001 Energy and Water Development Appropriations Act 
amended OBRA-90 to decrease the NRC's fee recovery amount by two 
percent per year beginning in FY 2001, until the fee recovery amount is 
90 percent in FY 2005. However, to the extent that this fee relief is 
insufficient to cover all surcharge costs, these remaining surcharge 
costs are spread to all licensees based on their percentage of the 
budget.
    In FY 2005, $2.3 million of the $62.4 million in total surcharge 
costs was not covered by the 10 percent fee relief, and therefore is 
included in licensees' annual fees. Eighty-two percent (the percentage 
of the budget associated with reactors) of the $2.3 million in net 
surcharge costs is included in reactor annual fees, and the remainder 
is spread to all other licensees' annual fees. Accordingly, NRC's 
uranium recovery licensees are not generally burdened with the costs of 
regulating Agreement State licensees or any other costs not associated 
with uranium recovery licensees (only to the extent that a small 
portion of these costs are spread to all licensees through the net 
surcharge). In FY 2005, total surcharge costs allocated to the entire 
uranium recovery class are $8,600.
    However, the NRC acknowledges that license fee classes with fewer 
licensees are more impacted by changes to the budget and changes to 
part 170 collections. The uranium recovery fee class was reduced by 
four licensees (two of which paid annual fees) in FY 2005 because 
regulatory responsibility for these licensees was transferred to the 
State of Utah in accordance with an Agreement under section 274 of the 
Atomic Energy Act (AEA) of 1954, as amended, effective August 16, 2004. 
This resulted in fewer NRC uranium recovery licensees (now six in 
total, including a license for the DOE) paying for the FY 2005 generic 
and other regulatory costs associated with the regulation of the NRC's 
uranium recovery licensees. Accordingly, annual fees increased for the 
NRC's uranium recovery licensees in FY 2005 because the fee class now 
has fewer licensees; however, the higher annual fees are not the result 
of NRC licensees paying for activities that support Agreement State 
licensees, as previously discussed. Because annual fees must recover 
budgeted resources for a fee class not recovered through part 170 fees, 
to the extent that part 170 fees do not completely recover the costs of 
budgeted resources for part 170 activities, these costs are included in 
annual fees. The NRC does note that the increases to hourly rates 
enacted through this rulemaking will enable the agency to recover more 
of the budgeted resources for licensee-specific activities, and once 
implemented, will reduce costs that must be recovered through annual 
fees.
    With respect to the general comment that there is a lack of a 
reasonable relationship between the cost to uranium recovery licensees 
of NRC's regulatory program and the benefit derived from these 
services, the NRC notes that the uranium recovery fees reflect the 
budgeted resources associated with the regulation of NRC's uranium 
recovery licensees. As previously described, the fee relief of 10 
percent for FY 2005 covers almost all (with the exception of $2.3 
million) of the budgeted resources associated with activities that do 
not directly benefit NRC licensees, and the total surcharge cost 
allocated to the entire uranium recovery class is $8,600 in FY 2005. 
The NRC must by statute assess annual fees to uranium recovery 
licensees to recover their budgeted costs not recovered through part 
170 fees and other receipts. While the NRC acknowledges the previous 
Commission comment about the existence of a uranium recovery facility 
being in the public interest, this does not negate the NRC's legal 
obligation to collect fees to recover the costs of regulating uranium 
recovery facilities.
    In response to the comment that the NRC may not possess sufficient 
experienced staff to process future licensing actions for uranium 
recovery licensees, the issue raised is outside the scope of this 
rulemaking. However, the NRC does consider market forces and expected 
future licensing activities in formulating its budget, and has a human 
resources program in place to address future agency skill needs.
    Finally, the NRC notes that this final rule continues the policy of 
assessing the DOE one-half of all NRC budgeted costs attributed to 
generic/other

[[Page 30530]]

activities for the uranium recovery program.
2. Annual Fees for Fuel Facilities Licensees
    Comment. One commenter expressed concern over the increase in 
annual fees for fuel facilities licensees. The comments discussed the 
unpredictability of estimating proposed fee increases, as well as that 
the NRC did not mention in the FY 2004 fee rule a one-time adjustment 
it had made to account for part 170 fees received for prior year 
activities (which decreased annual fees in FY 2004 for fuel 
facilities).
    Response. The NRC appreciates the concerns raised about fee 
predictability and stability, and does strive to notify licensees as 
early as possible of proposed fee changes. While the one-time 
adjustment for the fuel facilities was discussed in the FY 2004 final 
fee rule (69 FR 22671; April 26, 2004), the NRC acknowledges that the 
rule did not fully explain the potential impacts of this adjustment. 
The NRC aims to more fully explain any such changes in the future.
    Although the NRC understands that large fluctuations in fees are 
undesirable, the NRC must recover most of its budget to comply with 
OBRA-90, as amended. To do so, the NRC annually promulgates a rule 
establishing licensee fees. Because of concerns about annual 
fluctuations in these fees, the NRC announced in FY 1995 that 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 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 by rebaselining. Commission policy sets the 
maximum interval between rebaselined fee schedules at three years. 
Based on the change in the magnitude of the budget to be recovered 
through fees, the Commission determined that it was appropriate to 
rebaseline its part 171 annual fees in FY 2005. Rebaselining fees 
resulted in increased annual fees for fuel facilities compared to FY 
2004 due in part to an increase in budgeted resources for FTE for fuel 
facilities licensing and inspection activities. (These resources may 
not be entirely recovered under part 170 because of factors such as the 
existing hourly rates, which do not account for the time direct FTE 
spend on training and other administrative activities, and because 
licensing resources spent on contested hearings are not generally 
recovered under part 170, in accordance with 170.11(a)(2).) A decrease 
in part 170 fees from this class also contributed to the annual fee 
increase. As discussed in the FY 2004 proposed fee rule, this decrease 
in part 170 revenue results partly from the one-time $2.1 million 
adjustment (increase) to part 170 revenue in FY 2004 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 F 2003.
3. Increase in the Annual Fees for Some Materials Licensees
    Comment. Two commenters strongly objected to the increase in the 
annual fees for some of the categories of the materials licenses. One 
commenter stated that the increase will have to be passed on to their 
customers which will place the licensee at a cost disadvantage in a 
very competitive environment.
    Response. The NRC has addressed comments regarding the impact of 
fees on industry in previous fee rulemakings. The NRC has stated since 
FY 1991, when the 100 percent fee recovery requirement was first 
implemented, that it recognizes the assessment of fees to recover the 
agency's costs may result in a substantial financial hardship for some 
licensees. However, consistent with the OBRA-90 requirement that annual 
fees must have, to the maximum extent practicable, a reasonable 
relationship to the cost of providing regulatory services, the NRC's 
annual fees for each class of licensee reflect the NRC's budgeted cost 
of its regulatory services to the class. The NRC determines the 
budgeted costs to be allocated to each class of licensee through a 
comprehensive review of every planned activity in each of the agency's 
major program areas. Furthermore, a reduction in the fees assessed to 
one class of licensees would require a corresponding increase in the 
fees assessed to other classes. Accordingly, the NRC has not based its 
annual fees on licensees' economic status, market conditions, or the 
inability of licensees to pass the costs to its customers. Instead, the 
NRC has only considered the impacts that it is required to address by 
law.
    Annual fees for materials users increased for certain fee 
categories for two reasons. First, materials users' annual fees include 
more budgeted resources for activities such as licensing and inspection 
(including some homeland security activities) in FY 2005 than in FY 
2004. Second, the distribution of the materials users class resources 
to fee categories within this class was revised based on the biennial 
review of fees. As mentioned previously, the staff biennially reviews 
the average professional staff hours associated with processing 
applications and performing inspections. This review was performed in 
FY 2005, and indicated that processing time for most fee categories 
decreased or remained the same; however, processing time for some 
categories (e.g., categories 3H, 3I, 9A, and 9B) increased since the 
last biennial review of fees, based in large part on the increased 
complexity of the submissions for these fee categories and the 
additional review required to assure the continued quality and adequacy 
of technical and regulatory determinations. Because the total budgeted 
resources for the materials users class are distributed to fee 
categories within that class based on these average review times, this 
resulted in more significantly increased annual fees for these 
categories of licensees.

D. Other Issues

1. Recovery of Security Costs
    Comment. Several commenters strongly objected to the NRC collecting 
security-related costs from licensees. These commenters stated that 
homeland security issues related to nuclear power plants are part of 
the U.S. government's overall responsibility to protect its critical 
infrastructure, and hence these costs should be excluded from the fee 
structure and funded through the General Treasury. These commenters 
noted that the nuclear industry has already incurred significant 
security costs, and that these costs have not been reimbursed by the 
Federal government, unlike what has occurred for other industries. 
While the commenters stated that they recognized the public benefit of 
enhancing the already strong security at nuclear facilities, they 
thought it fundamentally unfair to require licensees to pay for the 
NRC's additional security-related oversight.
    Because of concerns raised regarding homeland security activities 
and their cost recovery, these commenters urged the NRC to continue to 
engage the Department of Homeland Security and Congressional leaders to 
achieve a more equitable outcome for NRC licensees.
    Response. The NRC appreciates the concerns raised by commenters 
regarding homeland security costs being funded through license fees. 
However, the NRC's required fee recovery is set by

[[Page 30531]]

statute and, therefore, is outside the scope of this rulemaking. To 
implement OBRA-90, as amended, the NRC must recover approximately 90 
percent of its budget authority in FY 2005, less the amounts 
appropriated from the 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. This required fee recovery includes 
homeland security budgeted resources.
    Legislation has passed the House of Representatives which would 
remove some of the NRC's homeland security costs from the fee base. If 
Congress enacts such legislation, this would be reflected in future fee 
schedules.
2. NRC Budget
    Comment. Some commenters stated that NRC fees should reflect NRC 
efficiencies and provided suggestions for reducing NRC's budget and for 
more efficient/different use of NRC's resources. Many of these comments 
addressed expenditures on homeland security, while others suggested 
more generally that NRC reduce expenditures, streamline processes, or 
otherwise perform activities more efficiently, without impeding 
operational safety. Some commenters suggested that changes in NRC's 
regulatory approach, such as the reactor oversight process, as well as 
revised inspection, assessment and enforcement processes, should result 
in reduced fees. Some comments included suggestions to reallocate 
resources dedicated to the inspection of areas of plants that have 
little or no safety significance, to efforts to risk-inform 
regulations, review license renewal applications, and license new 
reactor designs.
    Response. The NRC appreciates the importance of identifying and 
implementing process efficiencies on an ongoing basis. Every year, NRC 
offices conduct process reviews and rely on risk-informed practices to 
develop cost-efficient budgets that will allow them to achieve the 
NRC's Strategic Plan mission objectives. Nonetheless, the NRC's budget 
and the manner in which the NRC carries out its activities are not 
within the scope of this rulemaking. Therefore, this final rule does 
not address the commenters? suggestions concerning the NRC's budget and 
the use of NRC resources. The NRC's budget is submitted to the Office 
of Management and Budget and to Congress for review and approval. The 
Congressional budget process affords stakeholders and the public 
opportunities to provide views, including meetings, testimony, press 
briefings, etc. The Congressionally-approved budget resulting from this 
process reflects the resources deemed necessary for NRC to carry out 
its statutory obligations. In compliance with OBRA-90, the fees are 
established to recover the required percentage of the approved budget. 
However, the NRC will continue efforts to ensure that the NRC carries 
out its statutory obligations in an efficient manner.
3. Fees Communication and Timing, Including Fee Increase Phase-Ins or 
Caps
    Comment. Several commenters raised concerns that the timing of 
issuance of the fee rule makes it difficult for licensees to plan for 
regulatory expenses within the framework of their normal budget cycles. 
To address this issue, commenters suggested that the NRC publish an 
estimate of fees for the following year, coincident with issuance of 
the proposed fee rule each year. The commenters recognized that while 
it would likely be impossible for the NRC to offer exact projections, 
the Commission should be able to develop reasonable estimates of the 
next year's fees. One commenter suggested phasing in fee increases over 
a longer period of time, and others similarly suggested the idea of a 
cap to fee increases. Another commenter requested that the proposed 
hourly rate increase be rescheduled until the offsetting annual fee 
reduction coincides with the increase.
    Response. The NRC acknowledges the concerns raised by these 
commenters. As a matter of law (OBRA-90, as amended), the NRC must 
collect the statutorily mandated level of fees by the end of the fiscal 
year to which they are attributed, in this case September 30, 2005. 
However, because the NRC does not know in advance what its future 
budgets will be (i.e., proposed budgets must be submitted to the OMB 
for its review before the President submits the budget to Congress for 
enactment), the NRC believes it is not practicable to project fees 
based on future estimated budgets. Even if the NRC were able to 
reasonably predict a future year total budget, the annual fee amounts 
are also highly sensitive to the allocation of these total resources to 
license fee classes, the numbers of licensees in a fee class, and the 
proportion of total class costs recovered from part 170. (Part 170 
revenue from a fee class is particularly difficult to predict in 
advance, and more so for fee classes with small numbers of licensees, 
whose annual fees are even more sensitive to part 170 revenue 
estimates.) Estimating these factors even further in advance than the 
NRC currently does would likely lead to inaccurate future fee 
projections, which would be misleading to licensees.
    With respect to the comment that requested that the proposed hourly 
rate increase be rescheduled until the offsetting annual fee reduction 
coincides with the increase, this is what will actually occur. While 
the higher hourly rates are being established in the FY 2005 final fee 
rule, licensees will not have to pay the bills reflecting these higher 
rates until FY 2006 (which begins October 1, 2005). The new hourly 
rates will not take effect until late in FY 2005, and licensees will 
not receive bills reflecting the new hourly rates until October 2005. 
The NRC will receive revenue from the higher hourly rates beginning 
approximately November 2005. The revenue from the higher hourly rates 
that the NRC receives in FY 2006 will be used to offset the required 
annual fee amount for licensees in FY 2006. Therefore, both the higher 
hourly rates and the annual fees reflecting the offset from the higher 
hourly rates will be paid by NRC applicants and licensees in the same 
fiscal year (FY 2006). During FY 2005, licensees paid part 170 fees 
reflecting the lower hourly rates, and hence the FY 2005 annual fees 
are offset by the lower hourly rates.
    The NRC has considered requests to cap fee increases or phase them 
in over a longer period of time. In the FY 1999 proposed fee rule, the 
NRC solicited comments on the idea of a cap to fee increases (64 FR 
15876; April 1, 1999). While some comments supported this proposal, 
others did not because they believed it would lead to some licensees 
subsidizing the costs of other licensees. The NRC did not adopt a fee 
increase cap in the FY 1999 final fee rule in light of fairness and 
equity concerns with this approach and a lack of overwhelming support 
from commenters (64 FR 31448; June 10, 1999). Upon subsequent 
evaluation, the NRC continues to believe that the legal and fairness 
concerns with these fee cap strategies or other phase-in approaches 
outweigh the benefits of enhanced fee stability. Given the requirements 
of OBRA-90, as amended, to collect most of NRC's budget authority 
through fees, failure to fully recover costs from certain classes of 
licensees due to caps or thresholds would result in other classes of 
licensees bearing these costs. The NRC's fees are based on the current 
year budgeted costs of activities benefitting the associated license 
fee classes, and hence reflect the best assessment of who should be 
paying for these costs. However, the NRC will continue to strive to 
issue its fee regulations as early in the fiscal year as is practicable 
to give

[[Page 30532]]

as much time as possible for licensees to plan for changes in fees.

III. Final Action

    The NRC is amending 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 $157.5 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 
$380.5 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. This fee recovery reduction is in accordance with 
the FY 2001 Energy and Water Development Appropriations Act. The 
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 I.--Budget and Fee Recovery amounts for FY 2005
                          [Dollars in millions]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Total Budget Authority.......................................     $669.3
    Less NWF.................................................      -68.5
                                                              ----------
        Balance..............................................     $600.8
    Fee Recovery Rate for FY 2005............................      \1\ x
                                                                   90.0%
                                                              ----------
Total Amount To Be Recovered for FY 2005.....................     $540.7
    Less Carryover from FY 2004..............................       -2.2
                                                              ----------
    Less Part 171 Billing Adjustments
        Unpaid FY 2005 Invoices (estimated)..................        2.7
        Less Payments Received in FY 2005 for Prior Year            -3.2
         Invoices (estimated)................................
                                                              ----------
            Subtotal.........................................       -0.5
                                                              ==========
Amount To Be Recovered Through Parts 170 and 171 Fees........     $538.0
    Less Estimated Part 170 Fees.............................     -157.5
                                                              ----------
Part 171 Fee Collections Required............................    $380.5
------------------------------------------------------------------------
\1\ Percent.

    The FY 2005 final fee rule is a ``major rule'' as defined by the 
Small Business Regulatory Enforcement Fairness Act of 1996. Therefore, 
the NRC's fee schedules for FY 2005 will 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 is 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 will 
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 will be billed for the annual fee at the FY 2005 
annual fee rate during the anniversary month of the license, and 
payment will be due on the date of the invoice.
    The NRC has discontinued mailing the final fee rule to all 
licensees as a cost saving measure, in accordance with its FY 1998 
announcement. 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]. 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, and will permanently be available 
at http://www.access.gpo.gov.
    The NRC is amending 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 revising the hourly rates used to calculate fees and to 
adjust the part 170 fees based on the revised hourly rates and the 
results of the agency's biennial review of fees required by the CFOs 
Act of 1990. Additionally, the NRC is revising part 170 to provide for 
the assessment of full cost fees for licensee-specific activities

[[Page 30533]]

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, including 
those to enhance consistency between the fee categories used in part 
170 and part 171.
    The amendments are as follows:
1. Hourly Rates
    The NRC is revising the two professional hourly rates for NRC staff 
time established in Sec.  170.20. These rates are 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 rate for the reactor program is $205 per hour ($296,782 
per direct FTE). This rate is applicable to all activities for which 
fees are assessed under Sec.  170.21 of the fee regulations. The rate 
for the materials program is $197 per hour ($285,336 per direct FTE). 
This rate is applicable to all activities for which fees are assessed 
under Sec.  170.31 of the fee regulations. In the FY 2005 proposed fee 
rule, the reactor program rate was $205 and the materials program rate 
was $198. The materials program rate decreased by one dollar between 
the FY 2005 proposed and final rules due to the movement of some 
budgeted resources from the materials program to the surcharge. 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 from FY 2004 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 revising its estimate of direct hours per FTE to more 
accurately reflect the NRC's costs of providing part 170 services, 
which will allow the NRC to more fully recover the costs of these 
services through part 170 fees, a result sought by several commenters 
as discussed earlier. 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) will result in a reduction to 
total annual fees of the same amount. As such, this hourly rate 
increase will shift some fee recovery from part 171 annual fees to part 
170 fees for licensee-specific services. (As previously discussed, 
because the invoices reflecting these increased part 170 fees will not 
be paid by licensees 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 will 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 OMB 
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 330 hours per year (1,776 minus 1,446) that a direct 
FTE performs in administrative activities will now be recovered in a 
similar manner to overhead, the costs of which are included in the 
hourly rate.
    The NRC recognizes that the 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 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 will result in increased full cost fees for 
licensing and inspection activities, and increased materials flat fees 
for license applications. As previously noted, total part 171 annual 
fees will decrease by the same amount as the increase in total part 170 
fees. This shift from part 171 to part 170 will 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 and rare 
earth facilities). 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 will result in some individual licensees paying less total fees 
than if this change were not enacted. This is 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 will pay 
more in total fees under the proposed higher hourly rates.

[[Page 30534]]

    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. 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 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
------------------------------------------------------------------------
                                   Reactor  program    Materials program
------------------------------------------------------------------------
Direct Program Salaries &         $150.5M...........  $38.9M
 Benefits.
Overhead Salaries & Benefits,     77.5M.............  17.7M
 Program Travel and Other
 Support.
Allocated Agency Management and   125.9M............  31.3M
 Support.
                                 ---------------------
    Subtotal....................  353.9M............  87.9M
Less Offsetting Receipts........  -0.0M.............  -0.0M
                                 ---------------------
        Total Budget Included in  $353.9M...........  $87.9M
         Hourly Rate.
Program Direct FTEs.............  1,192.5...........  308.2
Rate per Direct FTE.............  $296,782..........  $285,336
Professional Hourly Rate (Rate    $205..............  $197
 per direct FTE divided by 1,446
 hours).
------------------------------------------------------------------------

    As shown in Table II, dividing the $353.9 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 $296,782 per FTE for FY 2005. The Direct FTE Hourly Rate for 
the reactor program will be $205 per hour (rounded to the nearest whole 
dollar). This rate is calculated by dividing the cost per direct FTE 
($296,782) by the number of direct billable hours in one year (1,446 
hours). Similarly, dividing the $87.9 million budgeted amount (rounded) 
included in the hourly rate for the materials program by the program 
direct FTEs (308.2) results in a rate of $285,336 per FTE for FY 2005. 
The Direct FTE Hourly Rate for the materials program will be $197 per 
hour (rounded to the nearest whole dollar). This rate is calculated by 
dividing the cost per direct FTE ($285,336) by the number of direct 
billable hours in one year (1,446 hours).
2. Fee Adjustments
    The NRC is adjusting the current part 170 fees in Sec. Sec.  170.21 
and 170.31 to reflect the changes in the revised 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 
final 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 licensing fees are based on 
the average professional staff hours that 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.
    Although the biennial review indicated that processing times for 
most fee categories remained the same or decreased, the average 
processing times for some fee categories in Sec. 170.31 increased 
significantly as compared to the previous biennial review. The reasons 
for the increases are both administrative and technical. 
Administratively, several prior biennial reviews showed very small 
sample sizes of completed licensing actions in these categories; 
therefore, the NRC was reluctant to adjust fees based on the 
fluctuations that could result from small statistical samples. Thus, 
the hourly estimates on which these fees were based were legacies from 
many years ago. For the biennial review performed for the FY 2005 fee 
rule, a more meaningful sample size was reviewed, and therefore the new 
data were determined to be appropriate for including in the assessment 
of average processing times. A thorough review of the new data showed 
that the original fees were no longer representative of the complexity 
of the reviews and the amount of review time required to process the 
requests. Technically, program review practices have also changed in 
the past several years. The product vendors and device manufacturers 
are, in some cases, combining their submissions. This means that the 
NRC is reviewing more complex and substantial submittals, and that 
additional review is required to assure the continued quality and 
adequacy of technical and regulatory determinations. The NRC believes 
that the new license application fees in Sec.  170.31, based on the 
most recent data, better reflect the resources associated with 
processing license applications than the prior year fees. Although 
these changes resulted in some significant fee increases, the NRC does 
note that the

[[Page 30535]]

affected fee categories are small in terms of the number of licensees 
that will be impacted.
    The 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 professional staff hours needed to process the licensing 
actions multiplied by the revised materials program professional hourly 
rate for FY 2005. As previously noted, the revised higher hourly rate 
of $197 for the materials program is a key reason for the increases in 
the revised 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 revised fee per registration is $620, compared to the 
current fee of $610. The revised 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 FTE rate for FY 
2006.
    As compared to the FY 2005 proposed fee rule, a few of the 
licensing fees in Sec.  Sec.  170.21 and 170.31 are slightly lower due 
to the decrease by one dollar in the materials program hourly rate 
between the FY 2005 proposed and final fee rules.
    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 final 
rule.
3. Charging Fees for Licensee-Specific Activities Resulting From Most 
Orders
    The NRC is amending 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 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 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 revising its 
regulations to allow for full cost recovery of these activities under 
part 170 from NRC licensees. The NRC is not changing cost recovery for 
the development of these orders or for hearings requested on these 
orders; these costs will continue to be recovered under part 171 
(unless the hearing falls within the purview of 10 CFR 170.11(a)(2) 
addressing fees for Presidentially-directed national security 
programs).
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 will be 
enhanced. Therefore, the NRC is adding a new category (14B) to 
`Schedule of Materials Fees' at Sec.  170.31 that will 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 will be renumbered as Category 14A.) Section 170.2 
will 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.
    However, in light of concerns raised by a commenter on the FY 2005 
proposed fee rule regarding charging part 170 fees to unlicensed sites 
in decommissioning, the NRC is providing that this change will not be 
implemented until one year from the effective date of the FY 2005 final 
fee rule. The NRC believes that this will provide sufficient notice for 
these unlicensed sites to plan for these costs. Additionally, the NRC 
believes this delayed effective date may encourage unlicensed sites to 
complete their decommissioning work as quickly as practicable because 
work performed by the NRC for these sites before the implementation of 
this provision will not be subject to part 170 fees.
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 is clarifying this section by stating that this 
fee exemption applies only when it is requested from, and granted by, 
the CFO in writing. While this is consistent with current practice in 
requesting and granting these fee waivers, the NRC believes this 
revision will 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 (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

[[Page 30536]]

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 final rule and will 
not implement it until the effective date of the final rule.
7. Administrative Amendments
    The NRC is modifying the number or letter identifiers associated 
with fee categories listed in Sec.  170.31, as well as making 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 will enhance the 
NRC's ability to track parts 170 and 171 fees for license categories 
and simplify communication to licensees about applicable fee 
categories. Additionally, the NRC is removing the last sentence of 
category 15A of Sec.  170.31, which references that the category 
includes applications for export and import of radioactive waste, 
because the information contained therein is stated in the previous 
sentence.
    In summary, the NRC is amending 10 CFR part 170 to--
    1. Revise the reactor and materials 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 CFOs 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, effective one year from the effective date of the FY 2005 
final fee rule;
    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 administrative changes to Sec.  170.31, including those 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 is revising 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 amendments. The 
amendments are as follow:
1. Annual Fees
    The annual fees in Sec. Sec.  171.15 and 171.16 will 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 $380.5 million, compared 
to $389.9 million for FY 2004.
    The NRC is establishing annual fees for FY 2005 using the 
``rebaselining'' method. The Commission's policy commitment, made in 
the statement of considerations accompanying the FY 1995 final fee rule 
(60 FR 32218; June 20, 1995), and further explained in the statement of 
considerations accompanying the FY 1999 final 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 results 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 will have decreased 
annual fees, two categories' annual fees remain unchanged, while the 
remainder will 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, will not change. Considering 
all fee classes and categories, 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 decreases in annual fees range from 
approximately four percent for operating power reactors to 
approximately 53 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).
    Annual fees changed for certain classes and categories of licensees 
between the FY 2005 proposed and final fee rules because of changes to 
part 170 revenue estimates (based on the latest billing data available) 
for certain license fee classes and a small increase in budgeted 
resources allocated to the surcharge. The changes in annual fees from 
the FY 2005 proposed to final fee rules range from a three percent 
decrease for the spent fuel/reactor decommissioning class to a nine 
percent increase for test and research reactors and uranium recovery 
facilities.
    Table III shows the rebaselined annual fees for FY 2005 for a 
representative list of categories of licenses. The FY 2004 fee is also 
shown for comparative purposes.

[[Page 30537]]



             Table III.--Rebaselined Annual Fees for FY 2005
------------------------------------------------------------------------
                                          FY 2004 annual  FY 2005 annual
       Class/category of licenses               fee             fee
------------------------------------------------------------------------
Operating Power Reactors (including           $3,283,000      $3,115,000
 Spent Fuel Storage/Reactor
 Decommissioning annual fee)............
Spent Fuel Storage/Reactor                       203,000         159,000
 Decommissioning........................
Test and Research Reactors (Nonpower              62,500          59,500
 Reactors)..............................
High Enriched Uranium Fuel Facility.....       4,573,000       5,449,000
Low Enriched Uranium Fuel Facility......       1,533,000       1,632,000
UF6 Conversion Facility.................         657,000         699,000
Conventional Mills......................          14,500          30,200
Transportation:
    Users/Fabricators...................          91,300          80,900
    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. Due to 
rounding, adding the individual numbers in the table may result in a 
total that is slightly different than the one shown.

                       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
    b. Agreement State oversight........................             8.2
    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                       8.9
     institutions.......................................
    b. Licensing and inspection activities associated                1.4
     with other Federal agencies........................
    c. Costs not recovered from small entities under 10              5.9
     CFR 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            10.5
     related to power reactors).........................
                                                         ---------------
        Total surcharge costs...........................            62.4
Less 10 percent of NRC's FY 2005 total budget (less NWF)           -60.1
                                                         ---------------
        Total Surcharge Costs to be Recovered...........            2.3
------------------------------------------------------------------------
\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, $2.3 million is 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 will 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 surcharge costs allocated 
to each class will be included in the annual fee assessed to each 
licensee. The FY 2005 surcharge costs allocated to each class of 
licenses are shown in Table V. Separately, the NRC will 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. Due to rounding, adding the 
individual numbers in the table may result in a total that is slightly 
different than the one shown.

[[Page 30538]]



                                        Table V.--Allocation of Surcharge
----------------------------------------------------------------------------------------------------------------
                                                       LLW surcharge           Non-LLW surcharge        Total
                                                ----------------------------------------------------  surcharge
                                                   Percent         $M        Percent         $M           $M
----------------------------------------------------------------------------------------------------------------
Operating Power Reactors.......................           74          2.1         82.5          1.9          4.0
Spent Fuel Storage/Reactor Decomm..............  ...........  ...........          4.7          0.1          0.1
Nonpower Reactors..............................  ...........  ...........          0.1            0            0
Fuel Facilities................................            8          0.2          7.2          0.2          0.4
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          2.3          5.1
----------------------------------------------------------------------------------------------------------------

    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 final 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. For a period 
of 90 days after the effective date of this final rule, 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 $24.1 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 FTE for fuel facilities licensing and inspection activities. (These 
resources may not be entirely recovered under part 170 because of 
factors such as the existing hourly rates, which do not account for the 
time direct FTE spend on administrative activities, and because 
licensing resources spent on contested hearings are not generally 
recovered under part 170, in accordance with 170.11(a)(2).) 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 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 new subclass, are summarized in Table VI.

                                  Table VI.--Effort Factors for Fuel Facilities
----------------------------------------------------------------------------------------------------------------
                                                                                   Effort factors  (in percent)
                          Facility type                              Number of   -------------------------------
                                                                    facilities        Safety        Safeguards
----------------------------------------------------------------------------------------------------------------
High Enriched Uranium Fuel......................................               2      101 (38.0)       86 (58.1)
Uranium Enrichment..............................................               2       70 (26.3)       34 (23.0)

[[Page 30539]]

 
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 $24.1 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..............................      $5,449,000
Uranium Enrichment......................................       3,031,000
Low Enriched Uranium....................................       1,632,000
UF6 Conversion..........................................         699,000
Limited Operations Facility.............................         641,000
Others..................................................         466,000
------------------------------------------------------------------------

    b. Uranium Recovery Facilities. The FY 2005 budgeted cost, 
including surcharge costs, to be recovered through annual fees assessed 
to the uranium recovery class is approximately $701,810. Approximately 
$551,000 of this amount will be assessed to DOE. The remaining $151,000 
will 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 increased 
from FY 2004 to 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. 
As previously discussed, another reason for the increase in annual fees 
in FY 2005 is that the uranium recovery fee class was reduced by four 
licensees (two of which paid annual fees) because regulatory 
responsibility for these licensees was transferred to the State of Utah 
in accordance with an Agreement under Section 274 of the AEA of 1954, 
as amended, effective August 16, 2004. This resulted in fewer NRC 
uranium recovery licensees paying for the FY 2005 generic and other 
regulatory costs associated with the regulation of the NRC's uranium 
recovery licensees.
    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 will 
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.

 
 
 
DOE Annual Fee Amount (UMTRCA Title I and Title II general
 licenses):
    UMTRCA Title I budgeted costs..........................     $399,471
    50 percent of generic/other uranium recovery budgeted        146,890
     costs.................................................
    50 percent of uranium recovery surcharge...............        4,280
                                                            ------------
        Total Annual Fee Amount for DOE....................      550,640
Annual Fee Amount for UMTRCA Title II Specific Licenses:
    50 percent of generic/other uranium recovery budgeted        146,890
     costs.................................................
    50 percent of uranium recovery surcharge...............        4,280
                                                            ------------
        Total Annual Fee Amount for Title II Specific            151,170
         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

[[Page 30540]]

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 total weight
                  Facility type                      Number of       Category    -------------------------------
                                                    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               1             800             800              20
 sites..........................................
----------------------------------------------------------------------------------------------------------------

    Applying these factors to the approximately $151,000 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)............................         $30,200
Class II (solution mining)..............................          30,200
11e.(2) disposal........................................             N/A
11e.(2) disposal incidental to existing tailings sites..          30,200
------------------------------------------------------------------------

    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 by rulemaking.
    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 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 $311.6 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 $2,966,000 per reactor. Additionally, each power reactor 
licensed to operate will be assessed the FY 2005 spent fuel storage/
reactor decommissioning annual fee of $159,000. This results in a total 
FY 2005 annual fee of $3,115,000 for each power reactor licensed to 
operate. While budgeted resources for power reactors increased somewhat 
in FY 2005, annual fees will 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 $19.4 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 $159,000 per licensee. Annual fees will decrease for these licensees 
due to a reduction in budgeted resources for the spent fuel storage/
reactor decommissioning fee class compared to FY 2004, and an increase 
in projected fee recovery from part 170 fees for this license fee 
class.
    e. Test and Research Reactors (Nonpower Reactors). Approximately 
$238,000 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 $59,500 for each licensee. While budgeted resources for test and 
research reactors increase in FY 2005, annual fees will 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 $73,700 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 
$73,700. 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 will be recovered under part 170. The 
annual fee for the operating rare earth facility will decrease due to a 
slight decrease in generic activities performed for this license fee 
class compared to FY 2004.
    g. Materials Users. To equitably and fairly allocate the $26 
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

[[Page 30541]]

the result of significant changes to these average professional staff 
time estimates, as discussed previously.) 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 medical use licenses.
    The annual fee assessed to each licensee also includes a share of 
the $92,000 in surcharge costs allocated to the materials user class of 
licenses and, for certain categories of these licenses, a share of the 
approximately $507,000 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 increased in 
FY 2005, annual fees will 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 $80,900 for each of the holders of quality assurance 
plans that authorize use and design/fabrication. Fees will 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 final 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 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 fees for many of these selected 
categories of materials licensees will 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 retaining 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 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, including uranium recovery licensees, 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 modifying 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 are still licensed to 
operate. The NRC has not issued waivers on the basis of size for 
several years. 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

[[Page 30542]]

requests, is no longer needed. No other class of licensee contains an 
exemption provision based on size.
5. Administrative Amendments
    The NRC is eliminating 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 is an 
administrative change that is being made to streamline the fee schedule 
because 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 will determine its annual fee amount by 
the fee subcategory assigned to its license, as is the practice for 
other licensees.
    Additionally, the NRC is modifying 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 eliminating the phrase, `not covered 
under part 170.' (Note that once the regulatory revision to charge 
unlicensed sites in decommissioning, as previously discussed, is 
implemented, this surcharge category will 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 including, 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 minor administrative changes to enhance the consistency 
of fee categorizations between parts 170 and 171. The changes will 
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 has--
    1. Established rebaselined annual fees for FY 2005;
    2. Retained the current reduced fees for small entities;
    3. Adjusted the annual fees to reflect changes in Agreement State 
activities;
    4. Modified Sec.  171.11 to eliminate `size of reactor' as a 
consideration in evaluating annual fee exemption requests; and
    5. Eliminated reference to specific facility names under Category 
1.A of Sec.  171.16, revised 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.

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 final rule, the NRC is amending 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 final 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 final 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 final 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 final 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

[[Page 30543]]

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 final rule establishes the schedules of fees that are 
necessary to implement the Congressional mandate for FY 2005. The final 
rule will 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 Analysis, prepared in accordance with 5 U.S.C. 604, is 
included as Appendix A to this final 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 final rule and that a backfit analysis is not 
required for this final 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.

0
For the reasons set out in the preamble and under the authority of the 
Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 
1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the 
following 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

0
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).

0
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.

0
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 to the Chief 
Financial Officer in accordance with 10 CFR 170.5, and the Chief 
Financial Officer grants this request in writing.
* * * * *

0
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 requalification 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): $197 per hour.

0
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.

* * * * *

[[Page 30544]]



                        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..........         $12,800
    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
    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.


0
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:

[[Page 30545]]

 
        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.
    (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............................  $9,200.
    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.

[[Page 30546]]

 
    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.
    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...........................  $620.
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............................  $15,700.
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:

[[Page 30547]]

 
        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.
    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 fuel  Full Cost.
 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. Part 170 fees for these
 activities will not be charged until (insert
 date 1 year from effective date of final rule).
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).
        Application--new license, or amendment.  $12,800.
    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 amendment.  $7,500.
    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 amendment.  $2,400.
    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 amendment.  $1,600.
    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     5 N/A
 issued to Government agencies.
18. Department of Energy
    A. Certificates of Compliance..............  5 N/A
    B. Uranium Mill Tailings Radiation Control   5 N/A
     Act (UMTRCA) activities.
------------------------------------------------------------------------
\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.

[[Page 30548]]

 
 (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 will apply.
 (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.
  70.20.
\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

0
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]

0
8. Section 171.11 is amended by removing paragraph (c)(2), and 
redesignating paragraphs (c)(3), (c)(4), and (c)(5) as paragraphs 
(c)(2), (c)(3), and(c)(4), respectively.

0
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 $3,115,000.
    (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 $159,000.
    (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

[[Page 30549]]

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 $4 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 $38,100. This amount is 
calculated by dividing the total operating power reactor surcharge ($4 
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 $107,200. The FY 2005 
spent fuel storage/reactor decommissioning surcharge to be assessed to 
each 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 $880. 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--$59,500.
Test reactor--$59,500.


0
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 1
             Category of materials licenses                     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          $5,449,000
         Enriched Uranium)..............................
        (b) Low Enriched Uranium in Dispersible Form           1,632,000
         Used for Fabrication of Power Reactor Fuel.....

[[Page 30550]]

 
    (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..........         641,000
        (b) All Others..................................         466,000
    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,                5,700
     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)............................................
    E. Licenses or certificates for the operation of a         3,031,000
     uranium enrichment facility........................
2. Source material:
    A. (1) Licenses for possession and use of source             699,000
     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\......................          30,200
        (b) Class II facilities \4\.....................          30,200
        (c) Other facilities \4\........................          73,700
    (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          30,200
     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...............          13,400
3. Byproduct material:
    A. Licenses of broad scope for possession and use of          24,700
     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           26,700
     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              18,300
     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.............

[[Page 30551]]

 
    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...
    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          25,100
     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........................          80,900
        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 10            12 N/A
 CFR 72.210.............................................

[[Page 30552]]

 
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:
    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                0N/A8
     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 1,097,000
    B. Uranium Mill Tailings Radiation Control Act              551,000
     (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 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;
    (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

[[Page 30553]]

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 6th day of May, 2005.

    For the Nuclear Regulatory Commission.
Peter J. Rabideau,
 Acting Chief Financial Officer.

    Note: This appendix will not appear in the Code of Federal 
Regulations.

Appendix A to This Final Rule--Final 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 final 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 will 
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

[[Page 30554]]

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 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 CFOs Act.
    Accordingly, the NRC has re-examined the small entity fees for 
FY 2005, and does 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 is retaining 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,''

[[Page 30555]]

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 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

[[Page 30556]]

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 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. 05-10062 Filed 5-25-05; 8:45 am]
BILLING CODE 7590-01-P